University of Toronto Law Journal - Volume 66, Number 2, Spring 2016
ARTICLES
An economic analysis of waiver of tort in negligence actions
Edward M Iacobucci and Michael J Trebilcock
The legal status, scope, and policy implications of the waiver of tort doctrine have been a prominent, controversial, and unresolved feature of many recent class action proceedings in Canada, especially in products liability cases, where plaintiffs have sought to claim disgorgement of profits or revenues as an alternative to proof of damage or injury. The doctrine in recent years has been invoked frequently by plaintiffs in negligence class actions, though its legal status in such a context remains uncertain, as it has not been judicially decided. The article assesses the waiver of tort doctrine from an economic perspective. It argues that decoupling remedies from actual damages in negligence cases generally, or in products liability cases in particular, is not well founded from an economic perspective. Theory and evidence suggests that the deterrence and insurance aspects of negligence law are best achieved by linking remedies to losses actually suffered. In many contexts, disgorgement of gains from activities entailing negligent conduct may induce socially wasteful forms of over-deterrence. Economic analysis does not support the waiver of tort doctrine. http://bit.ly/utljaopm16d
The inhospitable court
Elaine Craig
The media coverage and countless stories that have been told by survivors of sexualized violence in the lead up to, throughout, and following the Jian Ghomeshi trial have shone a spotlight on the brutality of the courtroom process for survivors of sexualized violence. “The Inhospitable Court” is not an examination of the Ghomeshi trial itself. The article focuses more generally on the sexual assault trial process - its design, its traditions, its script - and the trauma it causes to those who find themselves forced to relive their experiences in a very particular way in front of a judge, lawyers, the media, and the general public. Using trial transcripts from recent cases, it describes the profound power differentials that occur and the threat to self the trial process poses for complainants - regardless of the verdict. It also offers some suggestions for how lawyers, judges, and legislators could make that experience less traumatic for those who turn to the criminal justice system to respond to the sexual harms they have endured. http://bit.ly/utljaopm16
Disgorgement: From property to contract
Nicholas W Sage
The article develops an understanding of the disgorgement remedy in private law by moving between the proprietary context, where the remedy has long been awarded, and the contractual context, where the remedy is relatively new and still controversial. The resulting account can explain the emerging common law on disgorgement for breach of contract, which has so far eluded explanation. The account also has broader implications for private law theory. First, it suggests that asking whether the plaintiff has a right ‘to a thing’ (the paradigmatic sort of property right) may obscure the remedial analysis. Instead, the analysis should attend to another, hitherto overlooked aspect of the plaintiff’s rights: their logical scope. Second, the account suggests that a purely ‘rights-based’ understanding of private law remedies cannot adequately explain disgorgement, because it elides the crucial role that the defendant’s wrongful action plays in the explanation for the remedy. http://bit.ly/utlj662a
REVIEW ARTICLE
The politics of comparative constitutional inquiry: At the crossroads of law, political science, and ideology
Michel Rosenfeld
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