Civil Remedies Research Articles

Pragmatism before principle: The limitations of civil law remedies for the victims of domestic violence

This paper considers the implications of the implementation of the Law Commission's proposals to revise substantially the civil remedies available to victims of domestic violence in the Family Homes and Domestic Violence Bill. It reviews the current practice of accepting undertakings in lieu of making a court order and discusses whether this will undermine the intended impact of the new Bill. More generally, consideration is given to the practical obstacles that may impede the full effectiveness of the new legislation, including the pattern of restrictive judicial interpretation and practitioners' possible unwillingness to change established practice in this field

Cleaning up drug hot spots in Oakland, California: The displacement and diffusion effects

This paper examines the displacement and diffusion of a civil remedy program in Oakland, California. Coined the “SMART” (Specialized Multi-Agency Response Team) approach, the program uses municipal codes and drug nuisance abatement laws to control drug and disorder problems. The study finds that the SMART program not only decreases drug problems at the target sites, but also leads to a “net diffusion of benefits” in the areas surrounding targeted places.

Civil remedies for theft — issues for banks

Thefts by employees raise interesting legal and practical issues for banks and other employers who wish to recover their money in civil actions. Immediately, there is the problem of the variable standard of proof required when pursuing a civil remedy for theft. Where spouses or others participate in the employees' theft the law of constructive trusts may also need to be examined. Additionally, there are important practical concerns associated with the gathering of evidence and the proof of loss. In this paper the writer considers those legal and practical concerns and then, by way of illustration, concentrates on the recent case of Bank of England v Gibson and others.

The Policing of Commercial Malpractice — Public Law or Self‐Regulation

Whilst the criminal justice system has evolved over the last seven years, it can be argued that the ability of the current criminal justice system in England and Wales to deal with the investigation, prosecution and trial of serious and complex fraud can still be challenged. Using material gathered whilst undertaking research for the Diploma in Compliance Studies at Exeter University, this paper makes a number of recommendations in this context. The existence of civil remedies and the regulatory structure created under the Financial Services Act 1986 may offer a limited opportunity to deal with some categories of commercial malpractice in an expedient and cost‐effective manner, outside the scope of the criminal justice system. This paper derives from research carried out with the purpose of reviewing the investigation, prosecution and trial of serious fraud in England and Wales in order to assess whether commercial malpractice is in fact a proper subject for ‘public law’, or whether it could be more effectively and expediently dealt with through civil law remedies, or by the self‐regulatory agencies created under the Financial Services Act 1986. This paper represents a summary of the main findings and interpretations of that research, which included interviews with three experts in the field. In considering this issue, one is bound in two ways. If one concludes that the criminal justice system can offer an effective and efficient method of the disposal of commercial fraud, the arguments for and against the use of the regulatory system become commensurably less significant. If, however, the conclusions suggest that major legislative and procedural changes are required to facilitate the effective and efficient prosecution of commercial fraud, the scope for use of regulatory sanctions where appropriate takes on a greater significance. Thus there are two elements in the writer's conclusion. First, there was concern to assess the veracity of the conclusions drawn by the Fraud Trials Committee in 1986 to the present, and other problems faced by the criminal justice system in the investigation, prosecution and trial of commercial fraud. Secondly, it was important to consider arguments for and against the use of regulatory sanctions for the disposal of commercial crime. The conclusions drawn from a review of the problems faced by the criminal justice system are, it is suggested, fundamental to the question of whether the increased use of regulatory sanctions is necessary, or desirable.

The Impact of Multilateral Trade Negotiations on Intellectual Property Laws in Korea

THE IMPACT OF MULTILATERAL TRADE NEGOTIATIONS ON INTELLECTUAL PROPERTY LAWS IN KOREA Sang-Hyun Songt Seong-Ki Kimtt I. The Korean Economy and New Recognition of the R ole of IPR A. The Korean Economy in the 1980s B. Problems in Protecting IPR in Korea C. Recognition of the Role of IPR II. Progress in IPR Legislation in 1986 A . Patents B. Copyrights III. Impact of Multilateral Trade Negotiations A. Spill-over Effects of TRIPS 1. Patents 2. Copyrights 3. Layout-Designs of Integrated Circuits ........ 4. Trade Secrets B. Harmonization with the New International Standards 1. Copyrights 2. Patents 3. Other Rights 4. Civil Remedies and Criminal Penalties ....... IV. Korea's Response to the Changing Environment ..... A. Reorganization of the Chemical Industry ........ B. New Possibilities for the Publishing and Software Industries V . Sum m ary t ft Professor of Law, Seoul National University. Attorney, Kim & Chang, Seoul, Korea.

Civil remedies for childhood sexual abuse: Finding ways round the statute of limitations and Stubbings v. Webb

Civil remedies for childhood sexual abuse: Finding ways round the statute of limitations and Stubbings v. Webb

The Multiple Middlegrounds between Civil and Criminal Law

My reactions to Kenneth Mann's original and insightful essay are organized under four headings. Part I offers a short recital of the academic complaints that are a compulsory part of this sort of exercise. Part II outlines three different types of MIddleground innovations between civil and criminal law and argues that the type of innovation chosen is a significant element in the calculus of the due process standards that should be imposed on governmental action. Part III suggests that the growth of administrative government and the need for administrative agencies to control their own enforcement agendas are the dominant reasons for the evolution of punitive civil sanctions at the federal level. Other factors Professor Mann lists, such as burden of proof and procedural protection for defendants, hold much less significance in explaining the boom in middleground civil sanctions. Finally, Part IV suggests that as the number and kind of criminal sanctions expand, the case for allowing punitive civil remedies rests on the comparative advantage of agency-managed enforcement efforts.

State Corporate and Federal Securities Law: Dual Regulation in a Federal System

Corporate law in the United States involves dual regulation. Although state and federal corporate law typicallyfunction without mutual interference, the last thirty years have revealed potential conflicts, chiefly in two situations. One involves civil remedies for investors underfederal securities statutes; the other is state anti-takeover regulation and its relationship to thefederal WilliamsAct. The postwar years until 1975 sawperhaps too much reliance on the federal component ofcorporate regulation. Since 1975, there has been a renaissance ofstate law. Recently, however, appreciationfor state regulatory authority may have degenerated into hostility to the will of Congress. The authors argue that the core interpretive task in federal securities law is preservation of both regimes to maximum effect, because the Congress has expressly declared that state authority should continue adjacent to federal regulation.

Civil Remedies for Intellectual Property Invasions: Themes and Variations

Both practitioners and students of intellectual property may benefit by exposure to comparisons of the overall remedial schemes of the three statutes' that encompass copyrights, patents, and trademarks.2 Such a survey3 is further warranted by my belief that, in general, we do not pay enough attention to remedies. They come at the end of the road (with, of course, the major exception of preliminary relief) and, for most of us, do not have the intellectual challenge of determining the existence of rights. Yet remedies are the payoff in litigation. Their potential severity, or lenity, presumably influences business decisions. The risk of treble damages if one skirts a patent too closely, or of a crippling injunction if a marketing program

Parental Kidnapping and U.S. Social Policy

Social workers, because of their central roles in dealing with the problems of families, require greater familiarity with the phenomenon of parental abduction of children. This article provides an overview of the social problem and summarizes major policy responses: the Uniform Child Custody Jurisdiction Act, the Parental Kidnapping Act of 1980, other criminal and civil remedies, The Hague Convention on International Child Abduction, and the International Child Abduction Act of 1987. The regulatory and enforcement systems are analyzed, and implications for social work practice are considered.

Sanctioning corporate crime: How do business executives and the public compare?

Previous literature on attitudes toward the punishment or seriousness of criminal behavior has largely neglected to focus systematically upon five issues: (1) public perceptions of corporate illegality rather than perceptions of street crime or other forms of white-collar lawlessness; (2) how evaluations are conditioned by the degree of culpability and harm an offense involves; (3) the circumstances under which citizens will support the use of legal sanctions against an individual executive as opposed to a corporate entity; (4) the public's willingness to support criminal as opposed to civil intervention into various kinds of illegal corporate activities; and (5) how business executives' attitudes toward corporate legal sanctioning compare to those held by the general public. Through a survey of residents and business executives in a midwestern metropolitan area, an attempt was made to shed light on these issues. The analysis revealed a pervasive willingness among the sample to embrace the use of civil sanctions against corporations regardless of the circumstances surrounding the conduct being rated. By contrast, advocacy of civil remedies against executives and criminal penalties against either the corporation or its executives was found to vary considerably according to the culpability and harm manifested by a given illegal act. Also, public support for sanctioning corporate behavior was consistently higher than the support evidenced by executives, especially where the sanctions were directed at individual corporate managers.

“Civilising” crime: Parallel proceedings and the civil remedies function of the commonwealth director of public prosecutions

“Civilising” crime: Parallel proceedings and the civil remedies function of the commonwealth director of public prosecutions

Who Gave It? Who Got It?: The Enforcement of Campaign Finance Laws in the States

This study examines the record of enforcement by state campaign finance agencies since their inception following Watergate. These boards and commissions exist in twenty-six states, although ten of them do not engage in substantial efforts to enforce the campaign finance laws. The remaining sixteen have established enforcement records that meet minimal standards, but only four have sought to administer substantial penalties and other civil remedies with consistency and vigor. Each of the four is subjected to separate analysis as to structure, level of fines, administration of other sanctions, and judicial experiences.

REMEDIES AS A LEGAL SUBJECT

There has been in recent years a growing interest in the subject of remedies. Several universities offer courses in it. Many articles by lawyers and economists have appeared. New Zealand has enacted a statute entitled the Contractual Remedies Act 1979, on which the present commentary has been written by Dawson and McLauchlan. Other recent books include Beale's Remedies for Breach of Contract (1980), Lawson's Remedies of English Law (2nd ed., 1980), Spry's Equitable Remedies (2nd ed., 1980) and, in Scots law, Walker's Civil Remedies (1974)It is apparent from an examination of these books that the scope and meaning of this legal subject area is by no means settled. Professor Walker says in his preface that no authority has tried to define or delimit 'remedies'.' Theoretically, almost every legal question could be posed in terms of remedies, but this would give the word so wide a meaning as to be useless. When reference is made by a writer to the virtues of studying the subject of remedies as a whole, the meaning of the word is evidently being restricted. If the subject has coherence, as is often claimed, there must be a unifying theme. The whole cannot be worth looking at unless the parts have some connection. Lawson's book gives the subject a very wide range, including administrative law, matrimonial law and company law. The aim of the book is stated in the preface to be to set out what redress a person can obtain. An American book, published in 1974, Dobbs' Handbook on the Law of Remedies, includes the law of restitution. It is true that restitution can be a means of giving redress for a legal wrong, but most would consider that it is primarily an independent source of legal obligation, distinct from tort and contract, depending on avoidance of unjust enrichment. This view, supported by textbooks in England2 and the United States,3 though not yet fully accepted by the House of Lords,4 is now established in Canadian law.5 Dawson and McLauchlan have written a detailed commentary on the New Zealand Contractual Remedies Act. The commentary is of a high standard and

International fraud and documentary credits

The decisions inCharles andLambie are utterly unconvincing in their treatment of cheque and credit card cases. It is surely inviting trouble to analyse the card-holder’s act of dishonesty against the bank as an alleged obtaining by deception involving the supplier. There may be sound reasons for resorting to criminal sanctions against dishonest card-holders, given the ease and frequency of abuses and the often illusory nature of civil remedies in many cases of abuse. Yet the arguments favouring criminal sanctions have not gone unchallenged, emphasis being placed instead on the need to encourage greater responsibility in the advertising and ready availability of cards.33 It would have been better if the House of Lords had recognised the inappropriateness of the existing deception offences, thereby enabling consideration to be given to the general question of criminality and the creation, if necessary, of a separate offence. The point about cheque and credit cards is that they essentially involve the dishonest breach of a promise made to the bank. Should this give rise to criminal liability or is that an unwarranted extension of the criminal law?34 Unfortunately, the deceptive analysis sanctioned inCharles andLambie completely obscures this important issue.

Implication of Civil Remedies under the Indian Civil Rights Act

Implication of Civil Remedies under the Indian Civil Rights Act

REVIEWS

Access to the Law: A Study Conducted for the Law Reform Commission of Canada. By M. L. Friedland.Philosophy of Law. By M. P. Golding.Justice, Discretion and Poverty; Supplementary Benefit Appeal Tribunals in Britain. Edited by Michael Adler and Anthony Bradley.The Social Control of Drugs. By Philip Bean.Drugs, Society and the Law. By Harvey Teff.Land, Law and Planning. By Patrick McAuslan.Public Planning and Control of Urban and Land Development. By Donald G. Hagman.Econocrats and the Policy Process: The Politics and Philosophy of Cost‐Benefit Analysis. By Professor Peter Self.Law and Practice of Credit Factoring. By Peter Biscoe.Assessment of Damages for Personal Injury and Death. By Harold Luntz.Conveyancing Searches. By Anthony R. Mellows.MacGillivray and Parkington on Insurance Law relating to all risks other than marine. Sixth Edition by Michael Parkington, Anthony O'Dowd, Nicholas Legh‐Jones and Andrew Longmore.German Insurance Laws. Statutes and Regulations concerning Insurance Supervision and Insurance Contracts. Translated and Annotated by Werner Pfennigstorf.A Guide to European Community Law. By P. S. R. F. Mathijsen.Public Law in Northern Ireland. By B. J. Narain.The Law of Civil Remedies in Scotland. By David M. Walker.The Principles of Jewish Law. Edited by Menachem Elon

Civil Remedies Available to Residential Tenants in Ontario: The Case for Assertive Action

Civil Remedies Available to Residential Tenants in Ontario: The Case for Assertive Action

Organized Crime and the Infiltration of Legitimate Business: Civil Remedies for "Criminal Activity"

Organized Crime and the Infiltration of Legitimate Business: Civil Remedies for "Criminal Activity"

Consumer Protection: New Hope Following Failure of Civil and Criminal Remedies

Consumer Protection: New Hope Following Failure of Civil and Criminal Remedies