Category Archives: Public law

William Goldstein, ‘Standing, Legal Injury Without Harm, and the Public/Private Divide’

Abstract Legal injury without harm is a common phenomenon in the law. Historically, legal injury without harm was actionable for at least nominal damages, and sometimes other remedies. The same is true today of many ‘traditional’ private rights, for which standing is uncontroversial. Novel statutory claims, on the other hand, routinely face justiciability challenges: Defendants […]

Kenneth Hayne, ‘Government Contracts and Public Law’

Abstract: It is time to reconsider how public law affects government contracting. Concepts of ‘the Crown’ or ‘the prerogative’ do not assist. Instead, the issues are, and must be seen as, issues about structure of government. Federal considerations limit the Commonwealth’s power to contract. The Commonwealth executive has constitutional power to make contracts for administering […]

Jason Varuhas, ‘Taxonomy and Public Law’

Abstract: This paper (i) identifies the reasons for the general absence of legal taxonomy in public law scholarship; (ii) argues that legal taxonomy and taxonomic debate is vital to the principled development of public law and rigorous legal analysis, and is of acute importance today given trends towards open-ended balancing in public law adjudication which […]

Cody Jacobs, ‘The Second Amendment and Private Law’

Abstract: The Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play – if any – when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law – specifically, the law […]

Shai Stern, ‘Remodeling Just Compensation: Applying Restorative Justice to Takings Law Doctrine’

Abstract: Compensation for expropriation in most western jurisdictions aims to provide justice. Yet, while this quest for justice is inherent in expropriation laws, they nevertheless say little, if any, about the underlying conception of justice or how justice should be pursued. A closer examination of courts’ judgments, as well as scholarly discourse on the quest […]

Liana Teodora Pascariu, ‘The Opportunity of a European Administrative Contract Law’

Abstract: There was a tendency in the past few years, particularly in Europe, to harmonize and conceptualize in a common way the rules referring to the coming out, alteration, execution or termination of contracts, which could ultimately lead to the emergence of a new branch of European Union law, the contract law. This vision has […]

Katalin Sulyok, ‘Managing Uncertain Causation in Toxic Exposure Cases: Lessons for the European Court of Human Rights from US Toxic Tort Litigation’

Abstract: Under Articles 2 (right to life) and Article 8 (right to private life) of the European Convention on Human Rights, the European Court of Human Rights (Strasbourg Court) decides cases involving personal health injuries allegedly caused by toxic exposures. Thus far no one has conducted a systematic inquiry on how the Strasbourg Court deals […]

José Alvarez, ‘The Human Right to Property’

Abstract: How does the human right of property relate to protecting human rights in the age of Trump? Human rights advocates faithful to Henkin’s vision need to combat the dangerous consensus between elements on the political left and right that international law (including arbitration bodies outside US courts) has no business protecting the right to […]

Blocher and Gulati, ‘Markets and Sovereignty’

Abstract: The past few decades have witnessed the growth of an exciting debate in the legal academy about the tensions between economic pressures to commodify and philosophical commitments to the market inalienability of certain items. Sex, organs, babies, and college athletics are among the many topics that have received attention. The debates often have proceeded, […]

‘Judicial Review beyond Administrative Law: Braganza v BP Shipping Ltd and Review of Contractual Discretions’

“Judicial supervision of decision-making powers is often associated with administrative law. However courts also review the exercise of discretions in other fields. For example courts review powers exercised by trustees, and indeed much of equity might be characterised as a law of administration. Our focus here will be the legal principles sourced in the law […]