Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, Belknap Press: Harvard University Press, 2019, 472 pp, hb £28.95.
| Date | 01 September 2020 |
| Author | Eleonora Bottini,Erika Arban,Dinesha Samararatne |
| Published date | 01 September 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12520 |
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REVIEWS
A. Burrows,Remedies for Torts, Breach of Contract, and Equitable
Wrongs, Oxford: Oxford University Press, 4th ed, 2019, 624 pp, pb £49.99,
hb £125.00.
In a review of the first edition of Andrew Burrows’ Remedies for Torts and Breach
of Contract (Oxford: OUP, 1987), the reviewer, singing its praises and urging
people to buy it, nevertheless feared that it:
will not be widely read. It falls between too many stools to be prescribed as a
text for university or polytechnic law courses and, although it would be extremely
useful to practitioners involved in civil litigation, will they know of its existence
and take the trouble to capitalise on its criticisms, its juxtapositions, its suggestions
for legal development? Any book that tries to bridge the gap between supposedly
discrete legal subjects is bound to encounter market resistance. The author here
is attempting not just to bring together breach of contract and tort but also to
conflate discussion of only one aspect of each of those subjects-–the remedies they
can give rise to. His efforts will be acclaimed by cognoscenti but hardly noticed by
the average law student or the typical legal practitioner. (B. Dickson (1988) N Ir
Legal Q 301).
Happily, the reviewer’s enthusiasm proved to be shared by the market and
the three previous editions have each achieved immense success. Relied upon
heavily by students, academic lawyers and practitioners and frequently cited by
the courts, including at the highest level, it is, without doubt and deservedly,
the leading text on judicial remedies for civil wrongs.
Now in its fourth edition, the great strength of the book continues to be that
it analyses judicial remedies in a manner that is at once accessible, critical and
comprehensive. Unlike many other works that focus either on certain specific
remedies (see for example J. Edelman (ed), McGregor on Damages (London:
Sweet & Maxwell, 20th ed, 2017); A. Kramer, The Law of Contract Damages
(Oxford: Hart, 2nd ed, 2017)) or remedies as they operate in one branch of
the law of obligations (for example N. Andrews, M. Clarke, A. Tettenborn,
and G. Virgo, Contractual Duties: Performance, Breach, Ter mination, and Remedies
(London: Sweet & Maxwell, 2nd ed, 2017)); Kramer’s The Law of Contract
Damages (Oxford; Hart, 2014), it covers in a single volume the judicial remedies
for tort, breach of contract and equitable wrongs (monetary remedies that are
compensatory,restitutionar y, punitive, nominal and agreed by the parties as well
as ‘specific remedies’, including specific performance, injunctions and the award
of an agreed sum). Its accessibility resides in its comparatively lowpr ice and clear
and straightforward exposition and analysis. Aimed first and foremost at students
(unlike the other main works on remediesmentioned above which are primarily
practitioner texts and beyond the price point of most students), it navigates the
novice reader through the legal principles, synthesising extensive case law,
C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited. (2020) 83(5) MLR 1101–1123
Reviews
legislation and academic writings, and deconstructing difficult issues; and the
expert reader through controversial issues, important judicial decisions and
many of the practical problems that confront practitioners, providing helpful
guidance and critical thinking.
The new edition was eagerly awaited and much needed. Over 15 years
have passed since the last and there have been many important decisions and
developments during that time. The need was particularly acute for students
enrolled in courses on commercial remedies, which a growing number of
universities now offer, for whom there is no suitable alternative. It will also
be enthusiastically welcomed by the community of academic lawyers with an
interest in remedies, which continues to expand, as illustrated by the publication
of a number of monographs in this area in recent times (to cite a few: K. Barnett,
Accounting for Profit for Breach of Contract: Theory and Practice (Oxford: Hart, 2012);
S. Hard er, Measuring Damages in the Law of Obligations: the Search for Harmonised
Principles (Oxford: Hart, 2010); S. Rowan, Remedies for Breach of Contract: a
Comparative Analysis of the Protection of Performance (Oxford: OUP, 2012); R.
Stevens, Torts and Rights (Oxford: OUP, 2007); A. Summers, Mitigation in the
Law of Damages (Oxford: OUP, 2019); D. Winterton, Money Awards in Contract
Law (Oxford: Hart, 2015)).
The user-friendly structure is on the whole similar to the previous edition.
There are 26 chapters, of which the first 25 are dedicated to remedies for
tort and breach of contract and the final chapter to remedies for equitable
wrongs. They are split into six parts. The first part is introductory, dealing with
the scope and methodology of the book and also diverse topics of interest,
including concurrent liability between the tort of negligence and breach of
contract, the functions of judicial remedies, economic analysis of the law and
‘rights’ theories, and the impact of the Human Rights Act 1998. The following
four parts focus on remedies categorised according to the way they function:
Compensation (Part II); Restitution and Punishment (Part III); Compelling
Performance or Preventing (or Compelling the Undoing of) a Wrong (Part IV);
and Declaring Rights (Part V). The final part examines remedies for equitable
wrongs (Part VI) and this edition has a new title that refers expressly to its
coverage of these remedies (Remedies in Torts, Breach of Contract, and Equitable
Wrongs). This reflects the ‘coherence of remedial function between remedies
for common law and equitable wrongs’ (preface to the fourth edition).
The main change to the structure of the new edition is in the addition
of two new chapters. The first is a short chapter in the introductory part
(Part I, chapter 2) on the impact of the Human Rights Act 1998. It draws out
the two aspects that make the Act relevant to civil wrongs: its horizontal effect,
which has led the courts to modify common law and equitable wrongs to take
account of Convention rights, and its vertical effect in creating a new statutory
cause of action of infringement of a person’s Convention r ights by a public
authority. The focus is on this second aspect, first in an explanation of why the
vertical cause of action is a ‘non-tortious public wrong’ rather than a tort, and,
second, in analysis of the assessment of damages for the HRA cause of action.
In particular, it engages with the question of whether the English tort law scale
1102 C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited.
(2020) 83(5) MLR 1101–1123
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