Date: Wed, 28 May 2008 11:46

From: Jason Neyers

Subject: Law & Society, Montreal: Private Law Panel on Remedies

I post on behalf of Helge Dedek:

Dear Colleagues,

Those of you who will attend the Law & Society conference in Montreal this week (or happen to be around for other reasons) might be interested in the panel “Emerging Issues in Remedies”. The panel will feature:

Stephen Smith, McGill (“Remedies: Rules for Courts and Rules for Citizens”),

Elizabeth Adjin-Tetty, Victoria (“Reflections from the Margins: Discriminatory Impact of Application of Restitutio in Integrum in Personal Injury Claims”) and

Tobias Troeger, University of Tuebingen, Germany (“Remedies in Context: A Behavioral Economics Perspective on Uniform Laws”).

The panel will gather scholars with very different approaches to the field of remedies around one table. There should be something in there for anyone interested in private law.

"Emerging Issues in Remedies 3111" has been scheduled for next Saturday, May 31, 8:15 - 10:00 am in conference RM 11.

Best regards,
Helge Dedek

PS: Please find the abstracts of each presentation pasted below.

Helge Dedek
Assistant Professor
Ph.D. (Bonn), LL.M. (Harvard)
McGill University, Faculty of Law
3644 Peel Street
Montreal, Quebec, Canada H3A 1W9
Tel:   +1 514 398-1296
Fax:   +1 514 398-3233

ABSTRACTS:

Stephen Smith, McGill University: Remedies: Rules for Courts and Rules for Citizens

In this presentation, I will propose a model for classifying and understanding the law of remedies that focuses on distinguishing remedies that (merely) confirm existing rights and those that create new rights. In both cases, the availability of the court order (the 'remedy') is determined by rules that are directed at courts. These rules are therefore fundamentally public law rules (and as such are explained by public law principles, e.g., institutional concerns). The rules that govern the content of orders that create new rights are also fundamentally public law rules. It is only the rules that govern the content of 'rights-confirming' order that qualify as private law rules.

Elizabeth Adjin-Tettey, University of Victoria: Reflections from the Margins: Discriminatory Impact of Application of Restitutio in Integrum in Personal Injury Claims

Tort damages aim to restore plaintiffs to their original position absent the defendant’s tort. Claimants are not to benefit from their victimization. To ensure consistency with restitutio in integrum, courts require a correlation between plaintiff’s loss and amount of compensation. In the personal injury context, compensation is warranted only for the difference in plaintiff’s life attributable to the defendant’s tort. The paper will point to some of the discriminatory assumptions embedded in the application of this seemingly neutral principle and the effects on marginalized plaintiffs. Specifically, factors that inform determination of compensation for impaired working capacity such as race, gender, socio-economic and family status reinforce the marginalization of plaintiffs from vulnerable groups. Yet, factors favourable to these groups such as high participation rate in the waged labour force because of unfavourable economic conditions, even if at a lower income level; the increasing trend of women being the main or major breadwinners in many families; and the steady increase in the number of stay-home dads are routinely ignored in determining the socio-economic prospects of plaintiffs absent the injury. The assessment of damages for personal injury becomes a site for reinforcing the marginalization of individuals and groups facing discrimination, and makes it cheaper to victimise such people while exacerbating their vulnerabilities. The paper will also address unfairness to family members who provide care following tortious injury because of the practice of limiting in-trust awards to services exceeding what the person would normally provide for the victim.

Tobias H. Troger, Eberhard-Karls-University: Remedies in Context: A Behavioral Economics Perspective on Uniform Laws

Since the middle of the 20th century, international organizations as well as private institutions have made efforts to harmonize the legal frameworks governing international trade contracts. This paper looks into the remedies provided by uniform (Vienna Convention) or harmonized (European Directive on the Sale of Consumer Goods) sales laws in case a warranty is breached. Contrary to conventional economic analysis which mainly scrutinizes and compares individual remedies, it pays attention to the fact, that the international regulations - like many other sales laws - provide multiple remedies alternatively. It uses a game theoretical model to analyze the specific implications, the sequence of a multitude of remedies has and highlights where deviations from orthodox rationality assumptions (as a result of cultural, ethical etc. idiosyncrasies) may hamper the desired effect of legal uniformity.

--  
Jason Neyers  
Associate Professor of Law 
Faculty of Law  
University of Western Ontario  
N6A 3K7 
(519) 661-2111 x. 88435

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