Common Law Remedies Research Articles

Editorial

This edition of PER consists of eight contributions; six articles and two notes. In the first article, Angelo Dubeanalyses the interaction amongst African States that eventually led to the development of universal jurisdiction regulations within their individual legal systems to determine if one can say that there is indeed an African signature in those legal rules. Anél Ferreira-Snyman deals with the rapid development of space technology and space flight which has rendered article IV of the Outer Space Treaty dealing with the military use of outer space outdated and in dire need of change. Moses Phooko's article investigates whether the Southern African Development Community (SADC) Tribunal has jurisdiction to deal with cases involving allegations of human rights violations. Analogous to the situation of Chinese people in South Africa who chose to be defined as "Black People" in terms of the Employment Equity Act 55 of 1998 as well as the Broad Based Economic Empowerment Act 53 of 2003, Enyinna Nwauche examines the possibility that people living under a system of customary law may change their legal system by choosing another one. The last two articles, written in two parts by Andre Louw, deals with theEmployment Equity Act 55 of 1998. In the first part, he critically examines the organising principle of the affirmative provisions of this Act and assesses if it is in line with the constitutional requirements for a legitimate affirmative action programme or measure. In the second part, he critically evaluates the Constitutional Court judgment inSouth African Police Service v Solidarity obo Barnard 2014 6 SA 123 (CC), and highlights what he thinks the biggest areas of disappointment of this judgment are within the context of South Africa’s equality jurisprudence.
 In the first of two notes, Zsa-Zsa Boggenpoel analyses the Constitutional Court's use of the common law remedy ofmandament van spolie in Ngqukumba v Minister of Safety and Security 2014 5 SA 112 (CC). In the second note and last contribution of this edition, Petronell Kruger discusses the case of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC), which dealt with the challenges faced by persons with disabilities relating to access to education in South Africa.
 

Are sports image rights assets? A legal, economic and tax perspective

Although a general right of protection for a celebrity image or personality has not been recognised by the English Courts, it appears that commercially, the sports industry deals with image rights as an intangible asset. This was illustrated in the recent case of Proactive Sports Management Limited v Rooney & Ors where the Court of Appeal upheld a previous ruling by the High Court that an image rights agreement entered by Wayne Rooney with an image rights company was unenforceable as it was in restraint of trade (Proactive Sports Management Ltd v Rooney & Ors [2011] EWCA Civ 1444). The decision of Sports Club Plc v Inspector of Taxes also indicates that the process of assigning an image right to a company can be seen as a valuable asset at least for tax purposes, provided that arrangements are commercially genuine (Sports Club plc and others v Inspector of Taxes [2000] STC (SCD) 44, Walsh (2013), 260). Legal scholars in the UK have begun to explore how the field of law will and should respond to the growing commercialisation of image rights. Some suggest that the emerging significance of the commercial and tax value of image rights will have a transformative effect on the law (Walsh, 260). Others argue that existing legal concepts such as the law of passing off and trademark protection in the UK can accommodate whatever the value of image rights (Waelde and Laurie (2013), 827; Blum and Ohta (2014), 137). This paper highlights the factors to consider in entering into sports agreements including the tax treatment applied to image rights and the recent update and commentary of the Inland Revenue (HRMC) to their capital gains tax manual on the taxation of image rights (See: http://www.hmrc.gov.uk/manuals/cgmanual/updates/cgupdate220714.htm [All websites accessed on December 15, 2014]). The commentary of HRMC on image rights is yet another indication that, although traditional common law remedies will evolve further in the light of the growing commercialisation of image rights, a formal legislative or jurisprudential recognition of personality rights remains unlikely in the near future in the UK.

The iuramentum perhorrescentiae under canon law: an influence on the development of early chancery jurisdiction?

The iuramentum perhorrescentiae was a remedy under canon law in the fourteenth century by which any person could have his case tried in the first instance at the Papal Curia by swearing that, because of the power of his adversary, he did not expect to obtain justice in the locality. The English chancellor exercised a similar jurisdiction in the late-fourteenth century in cases in which the plaintiff claimed he could not avail himself of the common law remedy because of the defendant's power. This paper examines the possible influence of the iuramentum perhorrescentiae on the development of early Chancery jurisdiction.

Habeas Corpus, Imperial Rendition, and the Rule of Law

In the decades which followed the publication of AV Dicey’s Law of the Constitution, most English lawyers felt confident that the rights and liberties of Englishmen were protected by a rule of law, which was secured through ancient common law remedies such as the writ of habeas corpus. In their view, this ensured that no political activists would be detained without trial, unless there were particular emergencies which allowed the writ’s suspension, in order to protect the very rule of law. At the same time that these arguments were being made, however, detention without trial became an increasingly routine feature of colonial governance. This article examines the attempts used by political detainees from different parts of the empire to challenge their rendition and detention, and explores what the judicial response tells us about perceptions of the rule of law in the era when Dicey’s work was establishing itself as the classic text of constitutional law. Focusing on a number of key cases, it examines how courts examined two central issues in habeas corpus cases. The first concerns the legality of the detention. In discussing this issue, courts were presented with rival approaches to the rule of law, one which was more ‘formalist’ (asking whether the legislative instrument ordering the detention had a valid pedigree derived from the sovereign legislature), and another which was more ‘substantive’ (invoking a notion of fundamental rights). The second concerns the question of control, and explores the response of the courts to challenges to the writ by defendants who argued that they no longer had control over the detainee.

The President of RSA v Reinecke 2014 3 SA 205 (SCA)

The recent appeal case of The President of RSA v Reinecke (the Reinecke judgment) dealt with many issues about the employment of magistrates under the Magistrates Court Act (90 of 1993) but the most important issue for purposes of this note is how the judgment grappled with, on the one hand, the relationship between the common law rights and those rights conferred by statute in the labour sphere and; on the other hand, the notion of constructive dismissal in a complex working environment. The case calls for comment purely on the possible precedent it sets for the relationship between the common law and statutory rights in matters concerning employment as well as the impact it makes into the doctrine of constructive dismissal. The findings made by the court could potentially escalate and begin to constitute new defences to common law remedies where these intersect with other statutes that regulate employment and to claims of constructive dismissals.

'Bush v. Gore and the Distortion of Common Law Remedies,' from The Final Arbiter, Chapter 4

The book The Final Arbiter addresses the legal and political consequences of the Bush v. Gore decision. This article presented as Chapter 4 addresses the lasting impact of Bush v. Gore on the law of remedies. While others have focused on what the Court should or could have done in the case, this article focuses on what the Court actually did by analyzing the text of the decision and the remedial platform that formed the Court's consensus. The Court in Bush adopted a new model of prophylactic relief that provided too much, not too little relief. Yet this prophylactic remedy was disconnected from prior legal principles guiding the judicial use of this unique remedial power. The result of this novel use of a prophylactic remedy is the creation of a future model of expansive relief for constitutional violations. However the case also provides a model of federal court use of a remedy to nullify state rights.

Common Law Remedies and Relational Contracting: McNeil v Aberdeen CC (No 2) [2013] CSIH 102

Common Law Remedies and Relational Contracting: <i>McNeil v Aberdeen CC (No 2)</i> [2013] CSIH 102

The Law and Economics of Data and Privacy in Antitrust Analysis

While several scholars and policymakers have proposed that threats to privacy and competition from concentration of data be incorporated into antitrust analysis, no one has yet articulated a coherent theory as to how degrading privacy or aggregating data can be anticompetitive — nor even what, precisely, privacy harms are in this context. In this paper, we survey and evaluate the various attempts to incorporate privacy concerns into antitrust’s domain. We find that those more skeptical of antitrust law’s ability to deal with privacy concerns have the better of the argument. We approach the question by applying law and economics insights, including the error cost framework associated with antitrust scholars such as Frank Easterbrook, Joshua Wright, and Douglas Ginsburg. This is the first paper in the literature to evaluate all of the proposed approaches in a systematic way. While there have been a few skeptics of incorporating privacy into antitrust, we complement those papers by considering the literature arguing the aggregation of data can itself be a privacy harm that has developed since their publication.We highlight several problems with the theories advanced thus far. First, some of the theories rely on outdated economic models that assume big is bad, rather than on modern consumer welfare analysis. Second, none of the proposed approaches adequately defines the market for data. Third, none of the proposed approaches adequately explains how concentrations of data alter a firm’s ability or incentive to degrade privacy, nor why such degradations would amount to anticompetitive conduct. Fourth, the theories of harm identified by advocates of including privacy in antitrust analysis are inconsistent with one another: Some of the competitive harms identified have little to do with privacy, and some of the privacy harms identified are not antitrust-relevant, or at least not of the type normally condemned by antitrust law. Finally, there are no reasonable or antitrust-relevant remedies available for alleged anticompetitive harms arising from data or the privacy threats supposedly posed by increased data aggregation.Insofar as privacy harms need a public policy response, common law remedies of tort and contract supplemented by the FTC’s ongoing enforcement of consumer protection law are a better alternative to antitrust law. There are pro-competitive reasons for allegedly privacy-invasive practices like data collection, analysis, behavioral advertising, and even price discrimination. Applying an error cost framework suggests that barring such activity outright will lead to a decrease in consumer welfare. Targeted enforcement against anti-consumer abuses through common law and consumer protection law could preserve the benefits of data collection and analysis while ameliorating and deterring privacy harms.This paper is an outgrowth of a presentation given by Geoffrey Manne at the George Mason Law Review’s Symposium on Privacy Regulation and Antitrust on January 17, 2013. We do not wish the proposal to be considered for the poster session.

Compensating for Loss in Equity: The Evolution of a Remedy

Equitable compensation, founded in the inherent jurisdiction of equity, is becoming a more regularly awarded remedy in New Zealand courts. This paper examines the features of this remedy, first by a comparison between it and the statutory remedy of equitable damages, and secondly by a comparison between it and the common law remedy of compensatory damages in tort law. The panoply of remedies available in equity has traditionally been thought to reflect a fundamental eschewal by that jurisdiction of any whole-hearted embrace of the notion of compensation for loss. However, this is now changing rather rapidly, particularly in New Zealand. The time is opportune, therefore, for an examination of the developments and for an assessment of some of the issues arising. In seeking to do this, the paper adopts the following structure. The first section outlines the development of both equitable compensation and equitable damages, revealing that although both appear to be equitable remedies founded on the principle of compensating for loss, there are nevertheless essential differences between them. The second section examines matters relating to the scope of operation of equitable compensation. The third section takes up a major focus of present judicial and academic attention in the area, the relationship between equitable compensation and compensation in tort law. This focus has arisen as courts grapple (largely in cases dealing with claims in equity for breach of fiduciary duty and breach of confidence, where the circumstances often sustain claims in negligence or deceit as well) with the process of bringing the remedy of equitable compensation to an acceptable level of maturity. It is perhaps a trite observation that there is under way in New Zealand's law of civil obligations a movement towards increased remedial flexibility. Equitable compensation has a place in this development, but in order to be a trusted and effective remedy its parameters need to be more clearly understood.

The Properties of the Law: Restoring Personal Property Through Crime and Tort

Why are the civil remedies at common law which delivery up specific moveable property to another with greater right to possess so narrow in English law? Historically the equitable remedy of specific restoration returned property more easily than even the rule today; the common law remedy remains discretionary, with the claimant having to show the value to the property that cannot be found equally easily in the market. There may be a number of reasons behind this. The purpose of this chapter is to show the role played by the widely available proprietary remedies in the criminal law, as well as the role of the conceptual structure of property law in England focussing on relative title to possess. The argument being tested is that there was less pressure to develop a civil law restoration remedy because significant practical results were being achieved by the criminal mechanisms. It is all the more interesting that specific restoration has been more significant than compensation in the criminal law (when the reverse has been true in the civil law).

Creating Legal Space for Animal-Indigenous Relationships

Creating Legal Space for Animal-Indigenous Relationships

Archives and the Ethics of Replevin

One of the most contentious cultural property stories of the early 21st century the restitution of displaced treasures, from Nazi-stolen artwork to looted archeological finds to rare manuscripts. Replevin, according to lawyerarchivist Menzi L. Behrnd-Klodt, is one of several ancient common law remedies used to recover wrongfully taken personal property from whomever took it or holds it unlawfully.1 When analyzed in simple terms, returning stolen objects to the rightful owner clearly the right thing to do. In 2012, newspapers reported that Barry H. Landau, a once respected presidential historian, was convicted of removing manuscripts from archives. His finds included letters by Marie Antoinette, Karl Marx, and Franklin Roosevelt. He was sentenced to seven years in jail and forced to pay $46,525 in restitution to dealers who had bought manuscripts from him in good faith. Several thousand documents were recovered from his residence and returned. More displaced documents are currently being traced. By all accounts, justice has been served.2Several spectacularly successful replevin and restitution actions have recently wrested valued acquisitions from well-funded museums.3 In 2007, after years of legal wrangling and public controversy, the J. Paul Getty Museum of Los Angeles returned 40 ancient masterpieces to Italy including a massive statue of Aphrodite. The Metropolitan Museum of Art of New York, which in 1972 acquired a rare, classic painted vase called the Euphronios krater, returned it to Italy in 2008 after lengthy and contentious negotiations. The United States government has cooperated with the government of Mongolia to reclaim and repatriate a dinosaur skeleton, eight feet high and twenty-four feet long, removed from the Gobi desert for sale in the United States. The Mongolian police, Interpol, and the U.S. Immigration and Customs Enforcement were all involved. Through the process of restitution litigation, the long-dead dinosaur has become a celebrated symbol of national pride in Mongolia, and its return scheduled for 2013 cause for a hero's welcome.4 Treasures occasionally, although less frequently, travel in the opposite direction across the Atlantic. In 2006, the Osterreichische Galerie Belvedere in Vienna was forced to surrender five masterpieces by Gustav Klimt, paintings restituted to distant heirs now living in the United States, again after a protracted court battle.5Like paintings, antiquities and fossils, archives are cultural property and many of the same principles apply. If anything, public records, as a nation's memory, have a stronger claim to inalienability than artwork. This claim has been recognized in treaties for hundreds of years.6 Leopold Auer has identified dozens of international disputes over archival collections. Many such disputes have festered for decades.7 In 1866, France seized 297 volumes of Korean royal archives, which ended up in the Bibliotheque nationale de France where they were cataloged as Chinese manuscripts. Then in 1993, President Mitterand returned one volume to South Korea. The remaining 296 went back home in 2011, after 145 years.8 Books and manuscripts have long had a revered place in Korean culture, which produced the first book printed with moveable metal type in 1377, long before Gutenberg. Some curators claim that the pendulum has swung too far in the direction of returning displaced cultural property, to the extent that scholarship inhibited, the public deprived of educational experiences, and the objects themselves are endangered.9 Can well intentioned restitution efforts simply result in manuscripts being displaced a second time, with all the attendant hazards? In the international arena, the current debate pits collectors such as museums and archives in the receiving countries against aggrieved parties in the source countries. Both sides have strong justifications for their claims.Because laws can be changed and reinterpreted, and judicial decisions are frequently inconsistent, this essay will focus on the moral and ethical arguments and justifications, not the legal ones. …

State Property or Cultural Property?

In recent years, the state has evidenced a dedication to preserving our documentary heritage not only by maintaining archival repositories, but also by attempting to remove particularly notable and valuable historical documents from public circulation. North Carolina's efforts to regain its official copy of the Bill of Rights, a downright caper featuring a sting operation directed by the Federal Bureau of Investigation, is perhaps the most notable recent example of the phenomenon (Goss, 2010). In recent decades many such cases have been handled much more quietly, but in initiating suits to pursue contested historical documents and when relying heavily on particular legal strategies for their recovery, the public sector has decisively shaped this debate. The ubiquity of the term among relevant parties is one sign of success: in the councils of state archivists, among the professional organizations of both state and academic archivists, and throughout the community of private manuscript collectors, in conference sessions and journal articles, and in informal conversation, serves as a pervasive shorthand descriptor of conflicts involving the ownership of public documents. A common law remedy for parties seeking the return of stolen or otherwise unlawfully held property, and largely concerned with proof of title, replevin is the central feature of most individual state laws created to defend the property rights of governments in their official records (Bain, 1983). Replevin's stringent requirements, have, much to the detriment of informed and reasonable dialogue, lent a consistently acrimonious tenor to an otherwise episodic string of conflicts over public records. Relations between state archives and private collectors have only deteriorated in recent years, and at this point it would be helpful to develop alternative approaches to the analysis and mediation of these contests.The Private Market and Archival Preservation in the United StatesRecognizing the priority and influence of the private sector in preserving American archives is a necessary step in beginning to understand the complexities of this issue. American documentary preservation efforts have always been pursued within a mixed economy of public and private activity. At one time or another, either of the two sides might have been said to be dominant. Institutional archives, including government repositories and university special collections, are now the primary actors, but for much of our history governments have been imperfect guardians of the documentary heritage embodied in their inactive records. Only at the turn of the 20th century did state-funded archival institutions emerge as dedicated organizations to protect these records. And for years the state archives were alone; there would be no national archives until the 1930s. In terms of archival preservation, the 19th century belonged almost wholly to the individual collector of historical manuscripts. Private historical societies and private individuals served notably as archival custodians during this period, assembling manuscript collections through auction and catalogue sales, private commerce, and by personally seeking the items out where they were stored. Amidst the private letters they sometimes saved public papers: federal, state, or local government records, which at this time were usually kept in a variety of generally poor, dirty, and fire-prone accommodations. This material was sometimes pilfered, sometimes rescued from officially-sanctioned destruction, from the paper mill or the dump, maybe wheedled from the custody of a public official, or taken home by a public official, or otherwise chanced upon in unexpected ways. In this manner, notable portions of state, local, and federal archives entered the private autograph trade, afterwards lying quietly in wait and only in recent decades emerging as a divisive public policy issue.While the money involved was quite modest until at least the 1910s or 1920s, there existed sufficient competition between private collectors to bring about an increasingly robust private market for some varieties of historical documents. …

What Should the Proposed Restatement of Employment Law Say About Remedies?

Employment termination in breach of contract is normally remedied by anticipated earnings from the lost job, mitigated by any amounts that the victim actually earned, or could with reasonable effort have earned, from alternative employment. Traditionally neither consequential nor punitive damages are available. The assumption is that most people who lose jobs unlawfully manage quickly to find alternative employment and suffer no long-lasting harm. Recent economic and epidemiological research explodes this assumption. Workers who lose jobs experience health problems (stroke, heart disease, depression, tobacco use), increased mortality, and continuing economic losses, long after the period of unemployment. Moreover, that period of unemployment after job loss lasts much longer than it used to. The Restatement should not freeze existing remedies, but should permit common law remedies to evolve to resemble statutory remedies under the Civil Rights Act of 1991, for example by expanding the covenant of good faith and fair dealing.

Edwards v Chesterfield Royal Hospital – Parliamentary Intention and Damages Caused by Maladministration of a Contractual Dismissal Procedure

In Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58 [2012] 2 W.L.R. 55 the Supreme Court addressed the following question: is an employee, who can establish that (a) if a contractual disciplinary process had been correctly administered he would have been exonerated, and (b) thereafter employed until retirement, able to sue for loss of the earnings that he would have acquired until retirement? Three members of the Supreme Court held that such a remedy was not reconcilable with the enactment, originally in the Industrial Relations Act 1971, of a statutory unfair dismissals protection regime. It was Parliament's intention that an employee should not be able to outmanoeuvre the statute's compensation limitation rules by deploying a superior common law remedy. This note considers that reading of Parliament's intention.

Intellectual Property in the Cathedral

Dan L. Burk* Intellectual Property in the Cathedral** A variety of commentators have called for the increased application of liability rules, includ- ing compulsory licenses, to intellectual property. Such arguments are well taken, but unfor- tunately stop short of advocating the full range of potential intellectual property entitle- ment allocations. Property theory offers a range of allocative structures, including reverse liability rules and “put”-type entitlements that could be beneficially applied to intellectual property. This article describes several such rules and argues for their consideration in the canon of intellectual property entitlements. Introduction In this article I propose to explore a number of ramifications of the entitlement structure chosen for intellectual property. Reto Hiltyl, echoing theoretical work by ferry Reichmanz and others, has called for greater use of the compulsory license in intellectual property systems, a call with which I concur. Indeed, my only point of disagreement will be that this call is not enough. My argument will be that liability rules such as the compulsory license are indeed appropriate in many more instances than we have tended to employ them, but that even this rec- ognition is too timid. Property theory provides us with a range of possible entitle- ment constructions, including the classic property rule and liability rule, but by no means limited to these. I will suggest that not only liability rules, but several other kinds of related allocation rules, ought to be more routinely used in intel- lectual property cases than they have been. While many of my examples will be drawn from common law remedies, the structure is equally applicable to incor- poration within civil codes, and as I will suggest, administrative process as well. * Chancellor&#39;s Professor of Law, University of California, Irvine. I thank Reto Hilty, Dana Beld- iman, and participants in the Bucerius Law School conference on “Access Challenges in the 21*‘ Century” for their comments on a previous version of these ideas. ** Copyright 2012 by Dan L. Burk. Excerpted from ACCESS CHALLENGES IN THE 215&#39; CENTURY (Dana Beldiman et al. eds., forthcoming 2013). 1 See, e.g., Reto Hilty, Licensing for Innovation, Competition, and Creation in INTELLECTUAL PRO- PERTY AND INNOVATION: A FRAMEWORK FoR 215‘ CENTURY GROWTH 48 (Ian Hargreaves 81 Paul I-lofheinz, eds., 2012). 2 See, e.g., Jerome H. Reichman, Of Green Tulips and Legal Kudzu: Repackaging Rights in Sub- patentable Innovation, 53 VAND. L. REV. 1743 (2000). ZGEIIPJ 4 (2012), 405-418 ISSN 1867-237X © 2012 Mohr Siebeck

Adopting the Language of Rights for Environmental Protection: Legal and Theoretical Justifications

One of the current debates in public international law is the question of whether to treat environmental violations as human rights violations. These debates have been developed in a fragmented manner by different scholars, theorists and thinkers in the field of public international law. This paper takes the analysis further; it reviews, analyses and responds to the legal and theoretical debates surrounding the proposals for the creation and recognition of a substantive environmental right under international law. It considers the questions ‘why do we need an environmental right under international law and can environmental protection be rightly classified as a human right concern?’ The debates are explored under two headings: the proliferation debate (the new right will lead to a proliferation and devaluation of the human rights currency); and the redundancy debate (the new right will be redundant as environmental concerns are already indirectly covered by existing human rights treaties, common law remedies and environmental agreements). This paper develops a case for substantive environmental rights under international law. It argues that creating an environmental right under international law could be an effective way to recognize the vital character of a clean environment to human existence. It could also be a good way to offer a more coordinated, detailed and well documented approach for dealing with the linkages between environmental and human rights, as opposed to the fragmented approaches adopted across national and regional levels that have not fostered a broad understanding of the linkages. This paper also highlights the main issues that still need considerable thought if this recognition is to be achieved under international law.

A Case for Preemption: &lt;i&gt;Barnes ex rel. Estate of Barnes v. Koppers, Inc.&lt;/i&gt;: Failure of the Fifth Circuit to Understand CERCLA Results in Injustice

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was originally passed in 1980 to deal retroactively with harmful substances released into the environment. In 1986, the Legislature amended this original act under the Superfund Amendments and Reauthorization Act of 1986 (“SARA”). Part of SARA involved the implementation of findings by groups organized under various sections of CERCLA. For example, section 301(e) of CERCLA mandated a study to determine the adequacy of existing common law and statutory remedies for damages resulting from toxic exposure. In a 2008 case before the Fifth Circuit Court of Appeals, the failure of the court to understand the underlying law, and the subsequent failure to apply the appropriate law, resulted in a gross injustice.

Compensation Where No Land Is Taken: Update of the Law in Alberta

Economic and population growth in Alberta has led to a proliferation of projects and works for the public benefit, but the negative impacts of these are often borne by private landowners. The question arises as to what compensation should be given to landowners whose land is injuriously affected by public works, but is not actually expropriated. This article examines the common law remedies of negligence and nuisance; addresses the impact of the four tests set out in R. v. Loiselle for assessing statutory remedies; and provides a review of the evolution of and remedies available under the Municipal Government Act and Proceedings Against the Crown Act.

Failed Arbitrations before the Court of Common Pleas: Cases Relating to London and Londoners, 1400–1468

This article uses data gathered by the University of London, Centre for Metropolitan History's recent project ‘Londoners and the Law: Pleadings in the Court of Common Pleas’, which sampled London-related cases pleaded before the fifteenth-century court of Common Pleas, to analyze the use of arbitration by sub-gentry and mercantile class disputants. It examines the relationship between arbitration and litigation at common law, the volume of London-related cases pleaded at common law which cited a prior failed arbitration, and in what types of disputes arbitration was employed. It presents the hypothesis that the use of arbitration by sub-gentry and mercantile class disputants in cases relating to London and Londoners may have declined between 1400 and 1468, and that arbitration was most widely used in certain types of multifaceted and exceptional disputes. This article tentatively suggests that developments in disputants' use of common law remedies may have related to changes in the frequency with which arbitration was employed, calling for further study.