Private Remedies Research Articles

Child support and income inequalities: a cross-continental comparison from welfare design to judicial implementation

Abstract This article analyses why and how child support policy contributes to income inequalities as well as to cross-national variation. It uses an in-depth comparison between France and Quebec (Canada) and drives on a multi-method empirical design to assess how this policy has been designed within each welfare state regime from the 1970s to the 2020s and how family lawyers and lower court judges implement it. It shows that national conceptions of solidarity and justice differ, along with the differences between those two legal systems, leading to cross-national variations regarding child support policy. In Quebec, the neo-liberal wave and the powerful feminist movement have converged to ensure that fathers are made to face up to their financial responsibilities towards their children, which has positive effects on the wealthiest and middle-class families. In contrast, in France, the feminist movement has been less influential while the long-standing family policy has favoured state protection towards lone mothers. As a result, the financial risks involved in separation are (partially) compensated by a state system of redistribution, rather than by private remedies, which lead the French system to be more effective for lower-class families. As a result, national context still matters a lot in the part institutional arrangements and professional practices play in income inequalities after parental separations.

The Civil Law Regulatory Path of Internet Rumor Governance in the Context of Big Data

Relying on the Internet, network rumors have the characteristics of fast spreading speed, great influence and strong harm, which will have a certain impact on people's production and life, therefore, they have also entered the vision of the government governance, but the delineation of the boundaries between the governance of network rumors and the protection of the freedom of expression has caused a lot of social controversy. At present, China's network rumor governance system faces legal dilemmas such as low legal status, legislative gaps, lagging legislation, fragmentation of the legal system, and the strong color of public law; China's network rumor governance system also faces practical dilemmas such as the difficulty of private remedies, and the impossibility of recovering the damaged reputation in a timely manner. Therefore, in order to better manage rumors, maintain the peace and stability of the country and society, and protect the immediate interests of the people, we should start from legislation and control rumors by law. Firstly, the definition of rumor should be clarified through legislation, secondly, the types and methods of punishment should be clarified through legislation, and finally, the legal system of Internet rumor management in China should be improved through multi-channel management of Internet rumors, so as to realize the grand goal of China under the rule of law.

The Construction of Securities Public Interest Litigation System from the Perspective of Protecting Small and Medium Investors

Securities violations have dual consequences, both damaging public and private interests. The emergence of securities public interest litigation can bridge the gap between "private remedies" and "public enforcement" in the governance paths. However, due to the lack of legal provisions and judicial practice, the establishment of the securities public interest litigation system and its operation need to be explored. This article, from the perspective of protecting small and medium investors, discusses the goals and challenges of constructing the securities public interest litigation system. It also examines the necessity of using public interest litigation to restrain the abuse of controlling shareholders' rights and protect the interests of small and medium investors. Regarding the obstacles faced by current securities public interest litigation, the main issues include the questionable legislative positioning and the need for clarity in specific procedures. In the process of exploring the construction of the securities public interest litigation system, this article focuses on discussing the scope of application of public interest litigation, the selection of suing entities, and the allocation of burden of proof. It aims to enhance the understanding of the public and relevant departments regarding the construction of the public interest litigation system, while highlighting its significant role in protecting the rights and interests of small and medium investors, effectively promoting the protection of public interests and the lawful performance of regulatory authorities in the securities market, and safeguarding the healthy development of the securities market.

自媒体视域下的私力救济现象及规制

自媒体视域下的私力救济现象及规制

Research on the Vague Excessive Attachment of Compulsory Enforcement Act: In relation to the Regulations of German Compulsory Enforcement Act

我國原則上禁止私力救濟，惟強制執行作為私權實現之合法管道，亦應有所限制，避免過度侵害他人權利。超額查封禁止之立法目的即在保護債務人之財產免受過度侵害，惟按實務通說，查封縱有超額情事，倘非屬極端超額者，即無違背超額查封禁止規定。又謂我國採平等主義，以執行人員尚應考量是否仍有其他債權人參與分配為由，認該原則難以遵循而應放寬解釋。對此，本文整理我國近20年來有關超額查封之最高法院裁判，欲釐清法院對於「超額」之認定標準。此外，以採取優先主義之德國法為比較對象，除簡介德國法之查封制度外，並說明優先原則與超額查封禁止原則之規定與相關爭議。最後，重新檢討現行實務有待商榷之處，並提出若干淺見作結。In principle, private remedies are prohibited in Taiwan. Therefore, compulsory enforcement is the only way to apply for implementation. But it doesn't have to be a means of sacrificing the debtor's basic rights. In accordance with Article 1 Item 2 of the Compulsory Enforcement Act, which has been in force since 2014: ＂Compulsory enforcement shall be carried out in accordance with the principles of fairness and reasonableness, balancing the interests of creditors, debtors, and other interested parties, in an appropriate manner, and to the degree no more than necessary to achieve the enforcement purpose.＂ In other words, compulsory enforcement should be based on the principle of fairness and reasonableness, and not exceeding the necessary limits, which has been recognized by legislators. This research focuses on the protection of debtor's rights in the compulsory enforcement Law as the core topic and paying particular attention to the excessive Attachment in Compulsory Enforcement Act of Taiwan, which was stipulated by Article 50: ＂The attachment of the movable property is limited to the property whose price is sufficient to repay the claim amount under the compulsory enforcement and the costs to be borne by the debtor.＂ Due to shortage of studies in the field of compulsory enforcement in Taiwan, this study try to sort out systematically the relevant judgments of the Supreme Court in the past 20 years, and to clarify the court's judgment standards for the excessive Attachment and the considerations behind them. Especially, the practice has always focused on whether the creditor can obtain the satisfaction of the creditor's rights through compulsory execution. It is easy to ignore the protection of the debtor's rights and interests, leading to the occurrence of illegal compulsory enforcement. This article examines also from a comparative law perspective to introduce the German compulsory enforcement law.

“So, Sue Me:” Medical Professionals Should Support Title VI Civil Rights Law Improvements as Part of their Anti-racism Work

“So, Sue Me:” Medical Professionals Should Support Title VI Civil Rights Law Improvements as Part of their Anti-racism Work

The Commission’s vision for Europe’s digital future: proposals for the Data Governance Act, the Digital Markets Act and the Digital Services Act—a critical primer

The author discusses the EU Commission’s triad of proposals in the Digital Services Package of Winter 2020, i.e. the proposed Data Governance Act (DGA), Digital Markets Act (DMA) and Digital Services Act (DSA). These bills represent the hitherto most ambitious and broad regulatory project in the field of data and digital services regulation worldwide. While the DGA and DSA are also critically discussed, specific emphasis is paid to the DMA Proposal. This Proposal represents a hybrid approach to specific regulation of gatekeeper platforms, which in substance makes perfect sense. The main desiderata concern the co-ordination with European and national competition law and the introduction of further and more differentiated provisions in the area of enforcement. In fact, this latter aspect is partly linked to the former since e.g. contextual integration in competition law would allow to make use of the European Competition Network under EU Regulation 1/2003 to enforce the DMA Proposal’s provisions and in particular to coordinate EU and national enforcement, based on both, the DMA Proposal and EU or national competition law. Apart from that, a European legal framework for private remedies and enforcement in regard to the obligations laid down in the Proposal seems of paramount importance, since otherwise there is a danger of considerable disharmonization and inefficiency in regard to diverse private remedies according to the different Member States’ respective national contract, tort and unfair competition laws.

The Commission’s vision for Europe’s Digital Future: Proposals for the Data Governance Act, the Digital Markets Act and the Digital Services Act – A critical primer

The author discusses the EU Commission’s triad of proposals in the Digital Services Package of Winter 2020, i.e. the proposed Data Governance Act (DGA), Digital Markets Act (DMA) and Digital Services Act (DSA). These bills represent the hitherto most ambitious and broad regulatory project in the field of data and digital services regulation worldwide. While the DGA and DSA are also critically discussed, specific emphasis is paid to the DMA Proposal. This Proposal represents a hybrid approach to specific regulation of gatekeeper platforms, which in substance makes perfect sense. The main desiderata concern the co-ordination with European and national competition law and the introduction of further and more differentiated provisions in the area of enforcement. In fact, this latter aspect is partly linked to the former since e.g. contextual integration in competition law would allow to make use of the European Competition Network under EU Regulation 1/2003 to enforce the DMA Proposal’s provisions and in particular to coordinate EU and national enforcement, based on both, the DMA Proposal and EU or national competition law. Apart from that, a European legal framework for private remedies and enforcement in regard to the obligations laid down in the Proposal seems of paramount importance, since otherwise there is a danger of considerable disharmonization and inefficiency in regard to diverse private remedies according to the different Member States’ respective national contract, tort and unfair competition laws.

Private Remedies and Access to Justice in a Post-Midland World

Over the past several years, chapter 13 debtors have used the Fair Debt Collection Practices Act (FDCPA) as a tool to challenge debt buyers who file massive numbers of proofs of claim for debt for which the statute of limitations has run. In Midland Funding v. Johnson, the Supreme Court held that filing a proof of claim for time-barred debt does not violate the FDCPA. This decision put an end to the spate of FDCPA litigation and, in so doing, placed the burden of policing stale debt claims squarely on the shoulders of chapter 13 trustees. In this Essay, we question whether this state of affairs is in line with the balance of powers contemplated by the Bankruptcy Code or feasible in light of the realities of bankruptcy practice. We also explore alternatives to FDCPA litigation that might provide a more viable response to this problem. Finally, we consider what the rise and fall of these FDCPA claims might tell us about the role private litigation can play in improving access to justice in bankruptcy.

Distributive Justice, Public Policies and the Comparison of Legal Rules: Quantify the “Price of Equity”

AbstractThis paper proposes a quantitative approach to study two methodological problems arising when a costly redistribution of resources is implemented through public policies or legal rules: (a) aggregating individual into social preferences and (b) choosing the object of maximization. We consider a redistribution intervention that reduces inequality but diminishes total wealth and we specify a set of social welfare functions combining different preferences aggregation methods and maximands. For each social welfare function, we calculate its “price of equity”, defined as the maximum fraction of total wealth that a society is willing to sacrifice in order to implement the redistribution. Comparing the prices for equity across different social welfare function specifications, we identify systematic relationships and we rank them according to the efficiency-equity orientation. Results show that social welfare functions characterized by aggregation methods conventionally considered equity-oriented may reject redistribution interventions that are evaluated as welfare-improving by social welfare functions using efficiency-oriented aggregation methods. Similarly, social welfare functions considered equity-oriented because using utility as object of maximization may reject distributive policies that are evaluated as welfare-improving by social welfare functions using wealth as maximand. We argue that the quantitative approach proposed, by expounding the trade-off between equity and efficiency connected to different social welfare functions, may prove useful in areas of public law where policy-makers have to engage in the choice of a normative criterion for the evaluation of social welfare. Additionally, our results may inform rule-makers interested in comparing the distributive effects of alternative legal rules in special circumstances where private remedies can efficiently achieve redistribution goals.

Re-Shaming the Debate: Social Norms, Shame, and Regulation in an Internet Age

Advances in technology communication have dramatically changed the ways in which social norm enforcement is used to constrain behavior. Nowhere is this more powerfully demonstrated than through current events around online shaming and cyber-harassment. Low cost, anonymous, instant, and ubiquitous access to the Internet has removed most — if not all — of the natural checks on shaming. The result is norm enforcement that is indeterminate, uncalibrated, and often tips into behavior punishable in its own right — thus generating a debate over whether the State should intervene to curb online shaming and cyber-harassment.A few years before this change in technology, a group of legal scholars debated just the opposite; discussing the value of harnessing the power of social norm enforcement through shaming by using State shaming sanctions as a more efficient means of criminal punishment. Though the idea was discarded, many of their concerns were prescient and can inform today’s inverted new inquiry: whether the State should create limits on shaming and cyber-bullying. Perhaps more importantly, the debate reintroduces the notion of thinking of shaming within the framework of social norm enforcement, thus clarifying the taxonomy of online shaming, cyber-bullying, and cyber-harassment. This article ties together the current conversation around online shaming and cyber-bullying and cyber-harassment with the larger legal discussion around social norms and shaming sanctions. It argues that the introduction of the Internet has altered the social conditions in which people speak and thus changed the way we perceive and enforce social norms. Accordingly, online shaming is (1) an over-determined punishment with indeterminate social meaning; (2) not a calibrated or measured form of punishment; and (3) of little or questionable accuracy in who and what it punishes. In thus reframing the problem, this article looks at the viability of the legal, normative, private, and State solutions to controlling online shaming. It argues that looking only to State regulation will be an inefficient and ineffective solution. Instead, it proposes using the realizations from the shame debate, successful uses of online norm enforcement, and private remedies to inform the debate around State intervention.

Private securities litigation in China: Passive people’s courts and weak investor protection

This article addresses remedies for defrauded public investors in the Chinese legal system and the passive attitude of China’s courts to private securities litigation. Despite the existing laws in China prohibiting securities fraud, the absence of an efficient enforcement regime leaves shareholders vulnerable to a wide range of abuses. Weak legal remedies for victims of securities fraud, especially poor law enforcement and judicial governance, have led to a waste of judicial resources. In particular, China’s courts have adopted a passive attitude to securities disputes (typically prior to 2003, when the courts were absent in dealing with private securities actions), although this situation is changing gradually. This article analyses procedural reforms such as shareholders’ derivative actions, class actions and shifting evidential proof for defendants. Judicial practices in securities fraud, including false statements, market manipulation and insider trading, are also addressed. This article then highlights the importance of establishing an active and independent system of legal enforcement for the protection of investors. In conclusion, it suggests introducing class actions, the inversion of the burden of proof and facilitating private remedies for individual shareholders by enhancing judicial review, judicial independence and judicial governance.

Competition law remedies: Striving for coherence or finding new ways?

This article discusses current EU Competition law remedies in light of the key parameters termination, compensation, restoration and deterrence. Both public remedies available under Regulation No 1 and private remedies under national law are examined. A first aim is to test the ability of the current body of remedies to achieve effective enforcement, measured against the aforementioned parameters. A second aim is to examine whether there are tensions between different forms of remedies and their respective functions which may impact adversely on effective competition law enforcement. The article identifies several shortcomings, both with regard to the development of specific remedies and coordination between different forms of remedies. It is argued that Article 7 decisions may fill a flexible and prospective function, and that these aspects remain under-developed, partly because of the increased use of Article 9 commitment decisions. Moreover, the author points to a pressing need for better coordination between remedies with different functions. It is particularly argued that private enforcement should be more limited than currently reflected in the ECJ case law, and that it should be better integrated with public enforcement.

Private remedies

Private remedies

Financial Investors as Consumers and Their Protection: Recent Italian Legislation from a European Perspective

The present paper is firstly concerned with protections of investors in the Italian legislation and within a European context. Part I shall discuss in detail the definition of ‘investors’ as consumers in the European as well as in the Italian legislation. Part I shall therefore provide the reader with sufficient constructive elements in order to understand the present inconsistencies of definitions that instead deserve the utmost attention at both European and national levels. Secondly, in contrast with a legislative policy that seems to encourage recourse to private remedies, the argument supported in Part II of this paper questions the effectiveness of excessive private remedies if they are not buttressed by a consistent and rational framework. After dealing with the Italian offer of out-of-court settlement procedures (guarantee indemnification funds; no-fault funds) and collective redress procedures (collective injunctions; damages class actions; compulsory settlement), the argument put forward in Part II of this paper is that private remedies and access to justice lack clarity and are still excessively complex. An efficient protective system should first seriously enforce public remedies available (criminal sanctions and fines); secondly, it should simplify remedies and access to justice through the establishment of a hierarchy of remedies mandatory settlement attempts should come first, leading to an indemnity guarantee and excluding other ordinary suits. Only in case of failure an ordinary lawsuit may then be brought, either via individual actions or through class actions for damages, leading eventually to the awarding of economic damages. Last: access to indemnity funds should be permitted only in cases of defendant insolvency.

Federalism and Investor Protection: Constitutional Restraints on Preemption of State Remedies for Securities Fraud

The dual regulatory system developed for U.S. securities markets has provided the foundation for market confidence and market success. However, the paradox is that regulation breeds the success that breeds complacency that, in turn, breeds resistance to regulation. This cycle has been fully exploited by corporate issuers and their various high-tech support groups, with the result that their lobbying effort has overwhelmed opponents representing rank and file investors. Among the high-tech lobby’s major objectives, the preemption of private remedies traditionally afforded by state law, has been relentlessly pursued in the form of proposed “uniform standards” legislation that would federalize private causes of action for securities fraud. This article begins with a brief description and analysis of the Private Securities Litigation Reform Act of 1995 and the National Securities Market Improvement Act of 1996. It then discusses the proposed uniform standards legislation [later enacted as the Securities Litigation Uniform Standards Act of 1998]. After analyzing the normative arguments for and against this legislation, the article turns to what the author perceives to be present and developing constitutional limitations. The author then concludes that despite the weight of normative arguments against preemption of investor remedies, predominant federalism postulates foreclose the proposed intrusion into investors’ tort remedies traditionally afforded by the states under centuries-old common law. Based upon his own “symmetrical analysis” of active and dormant Commerce Clause powers, the author proposes supplementation of the traditional “rational basis” scope of review of commerce power legislation with a “strict scrutiny” review where federal legislation, like the proposed uniform standards legislation, seeks to veto or significantly abrogate regulation in areas of traditional state concern.

Towards Democratically Monitoring the Implementation of International Treaties Ratified by Canada

This article makes three arguments and a proposal relating to the difficulties created by the implementation of ratified but yet unincorporated treaties in Canada: 1. International law is undemocratic; 2. Private remedies are unavailable; 3. Courts don’t know how to deal with unincorporated treaties; 4. We need a democratic institution monitoring the implementation of Canada’s treaty obligations.The author argues that international law is still almost completely in the hands of the executive, at a time when international law has invaded all aspects of daily life. Therefore, the interface between international law and domestic law needs to be democratized, if citizens are to understand the relevance of international law and to have a meaningful impact on its creation and implementation.

Private Litigation to Enforce Fiduciary Duties in Mutual Funds: Derivative Suits, Disinterested Directors and the Ideology of Investor Sovereignty

The recent mutual fund scandals in the United States have generated both public and private litigation, forcing renewed attention to the nature and scope of private remedies that seek compensation for fiduciary misbehavior. This paper analyzes the difficulties in pursuing such claims as derivative action, insofar as the courts have given the fund's independent directors considerable discretion to recommend the termination of such suits. It criticizes this move as a misapplication of corporate law theory generally, showing that corporate governance in mutual funds cannot be viewed through the same lens as with respect to other kinds of firms. It also argues that an ideology of consumer sovereignty displaces fiduciary responsibility with respect to many agency cost problems in the fund industry. To the extent that independent directors adopt that ideology (or are selected because they have already adopted it), they will be suboptimal shareholder representatives.

Recent Developments in US Antitrust

A major issue for US antitrust enforcement in the last year or so has been how to achieve maximum detection and deterrence of cartels, even at the cost of weakening certain sanctions. Thus, new legislation protects first-to-confess price fixers from criminal penalties and from trebling of damages owed to customers. To the same end, US enforcement agencies have sought to cut back the ability of foreign victims of the non-US aspects of worldwide cartels to obtain damage relief in American courts. This approach has been justified primarily as facilitating the operation of leniency policies by decreasing the scope, or uncertainty, of the private damage action consequences of confession. Closing US courts to foreign victims has also been justified in terms of the expressed wishes of the US allies (e.g. Germany, Japan, Canada) to fashion their own private remedy policies for their residents. In merger enforcement, trends are steady, but many litigated merger cases were decided against the Government, which could not always support its theories of probable consumer injury with hard facts. Cases involving misuse of intellectual property continue to be aggressively fought, particularly where dubious means are used to enshrine a patented invention as part of an industry standard. US efforts toward international cooperation and harmonisation have had a steady pattern of achievement, but some difficult issues of policy and practice seem intractable, particularly centralisation of merger control and harmonisation of approaches to private remedies.

A “Bona Fide” Loophole for Dealers: Three-Year Protection from Section 12(a)(1) Actions under the 1933 Act

The goal of the Securities Act of 1933 (“the Act”) is to protect investors. The Act protects investors by requiring anyone who wishes to sell a security to provide potential investors with the information needed to make an informed purchase decision. For newly issued securities, this information is contained in a registration statement filed with the United States Securities and Exchange Commission (“SEC”). Section 5 is the heart of the Act. It, along with associated SEC rules, governs the actions of issuers, underwriters, and dealers in securities covered by this registration statement. The Act and rules provide the SEC with powers to prevent the sale of these securities by refusing to declare the registration statement “effective,” and by “stop orders” after it is declared effective. The SEC may also order anyone who violates the provisions of the Act to “cease and desist,” may pursue them civilly for violations, or may make referrals to the Department of Justice for criminal prosecution. The Act also provides private remedies for investors to pursue anyone who offers or sells securities in violation of the Act.