Comparative perspectives on remedies : views from four continents / edited by Russell L. Weaver, Arnaud Raynouard, Duncan Fairgrieve, and Steven I. Friedland.
2017
K2315 .C66 2017 (Map It)
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Details
Title
Comparative perspectives on remedies : views from four continents / edited by Russell L. Weaver, Arnaud Raynouard, Duncan Fairgrieve, and Steven I. Friedland.
Published
Durham, North Carolina : Carolina Academic Press, 2017.
Call Number
K2315 .C66 2017
ISBN
9781531003043 (alk. paper)
1531003044 (alk. paper)
1531003044 (alk. paper)
Description
xvii, 300 pages : illustrations ; 23 cm.
System Control No.
(OCoLC)981761625
Bibliography, etc. Note
Includes bibliographical references.
Record Appears in
Table of Contents
Series Note
xi
Introduction: Comparative Perspectives on Remedies: Views from Four Continents / Steven I. Friedland
xiii
Legal Remedies and High Prices for US Drugs: A Case for a Single-Payer System / Paul J. Zwier
3
pt. I
Pharmaceuticals, Profits and Risks
7
pt. II
Remedies under the False Claims Act, Their Failure to Adequately Compensate and Deter Big Pharma's Behavior
14
1.
False Claims Act
30
2.
Types of Illegal Behaviors by Pharmaceutical Companies
31
a.
Kickbacks
32
b.
False Statements Regarding Efficacy or Safety of a Drug
32
c.
Off-Label Marketing
33
d.
Inflating the Price of Pharmaceuticals
34
3.
Remedies under the False Claims Act
35
a.
Compensatory Damages
36
b.
Are Consequential Damages Available under the FCA?
37
c.
Civil Penalties under the FCA
38
d.
Constitutional Considerations on the Award of Damages under the FCA
40
e.
Criminal Sanctions under Anti-Racketeering Statutes
43
f.
Who Are the Parties in Big Pharma Cases and How Do Their Motivations Impact on Deterrence?
43
4.
Role of Whistleblower
43
5.
US Attorney's Guidelines in Settlement
45
6.
Alternatives to Liability under the FCA: Corporate Integrity Agreements
52
7.
Price Referencing Is the Best Alternative?
59
Conclusion
63
Giving the Borrower Time: An Evaluation of the Fitness for Purpose of Section 36 of the Administration of Justice Act 1970 / David Capper
73
Introduction
73
Need for a Contractual Corrective
74
Contemporary Context
76
Genesis of Section 36
79
Mortgagee's Right to Possession at Common Law
79
Mortgagee's Power of Sale
80
Origins of Section 36
80
Section 36
82
Must the Lender Obtain a Court Order for Possession or Sale?
85
Ropaigealach v. Barclays Bank Pic
85
Horsham Properties Group Ltd v. Clark
87
Land Registration Act (NI) 1970
88
Subsequent European and Domestic Jurisprudence
89
Conclusion on This Question
91
Suspending the Possession Order
93
1.
Pre-Norgan
93
2.
Norgan and Its Sequel
95
Lynd
97
Sequel to Norgan
99
What Is the Appropriate Approach to Take?
100
3.
Section 36 in the Contemporary Context
100
4.
Impact of Human Rights Act 1998
103
Soft Law Regulation
110
Sale by Mortgagor
114
Conclusion
120
Remedies and European Personal Data Protection Law Reform: What Is New? / Olivia Tambou
125
1.
Lack of a Visible Remedy-Based Approach of the GDPR
128
2.
Features of a Remedy-Approach of the European Data Protection
131
A.
Favored Approach Involving Self-Regulation of Remedies by the Person in Charge of Data Processing
131
B.
Regulation of the Remedies through the DPAs with the Support of the Organised Civil Society
135
C.
Principles Used for Determining the "Medics"
138
3.
Variety of the Types of Remedies Susceptible to Be Used by "the Medics"
142
4.
Finding and Closing Remarks
147
Case for Split Recovery in "Immployment" Law (Ten-Foot Pole Not Required) / Jason R. Bent
149
Introduction
149
I.
Hoffman Plastic and Remedies Limits for Undocumented Workers
155
II.
Role for Split Recovery?
159
III.
Ten-Foot Pole Not Required: How Split Recovery Advances the Purposes of the Illegal Contracts Doctrine
162
IV.
Defense of Split Recovery
164
A.
Getting the Parties' Incentives Right
164
B.
Identifying the Parties' Rightful Positions
167
Conclusion
168
Utopian Visions of Easy Solutions to Problems of Leadership Dysfunction / Sean McKinniss
169
Utopia in the Management of Higher Education: No More Messy Arguments
175
Conclusion
181
Postscript by Authors
182
Remedies for the Breach of the Duty to Perform in Good Faith: An Overview of the French Legal System / Guilhem Gil
185
I.
Duty to Perform in Good Faith in Private law
186
A.
Remedies for the Disloyal Use of Contractual Prerogatives
188
1.
Neutralization of the Contractual Prerogative
188
2.
Awarding Damages
195
B.
Linkage between Good Faith and Binding Force of the Contract
197
1.
Good Faith and the Prohibition to Adversely Affect the Substance of the Agreement: The Limit of the Application of Remedies
197
2.
Good Faith and the Strength of Individual Rights; the Theoretical Foundation of the Good Faith Principle
199
II.
Duty to Perform in Good Faith in Public Contracts Law
201
III.
Inadequacy of Good Faith to Explain Some of the Solutions Regarding the Performance of Public Contracts
202
IV.
New Remedies for Public Contracts Implicitly Based on Good Faith
205
Remedies: Comparative Law Perspectives / Arnaud Raynouard
211
I.
Comparing Civil and Common Law Approaches to Remedies
212
II.
Analysing the Consequences of "Rights-Based" versus "Remedies-Based" Approaches to Law
218
III.
Overlapping Approaches: The Perspective of Free Speech
219
Conclusion
230
Uncertain State of Mind Requirement for Constitutional Damages Claims / Ken Cooper-Stephenson
233
1.
State of Mind Issue
233
2.
Proportionality
236
3.
State of Mind in the United States
238
4.
State of Mind under the Canadian Charter of Rights and Freedoms
241
5.
State of Mind under the English Human Rights Act
244
6.
Conclusion
248
Public Law and the Law of Remedies: The False Hegemony of Private Law / David Wright
249
pt. I
Introduction
249
pt. II
Standing and the Sophisticated Argument
250
pt. III
Equity and Public Law
251
pt. IV
Key Developments
253
First Key Development: Changes Introduced by Broad Acts
253
A.
Competition and Consumer Acts
253
B.
AD(JR) Acts
255
Conclusion on This Key Development
260
Second Key Development: The Changing Perception of the Role of the AG
261
Third Key Development: Changes to the Common Law about Standing
266
Conclusions on This Key Development
271
Fourth Key Development: The Constitutionalisation of Standing
273
Conclusion on This Key Development
278
pt. V
Conclusions on Standing
278
pt. VI
Structure of Law of Remedies---The False Hegemony of Private Law
280
A.
Introduction
280
B.
Problems Arising from the False Hegemony of Private Law
281
pt. VII
Conclusion
283
Free Speech Remedies: Comparative Perspectives / Russell L. Weaver
285
I.
France and Speech That Degrades Human Dignity
287
II.
Contrast with the United States
292
Conclusion
299