Category Archives: Public law

Verbruggen and Kryla-Cudna, ‘The Union’s Liability for Failure to Adjudicate within a Reasonable Time: EU Tort Law after Gascogne, Kendrion and ASPLA

ABSTRACT In this article we examine the cases of Gascogne, Kendrion and ASPLA, in which the Court of Justice of the EU found itself confronted – for the first time – with a number of separate damages actions for breach of EU law, namely the alleged failure to adjudicate within a reasonable time as required […]

Seth Davis, ‘The Private Law State’

ABSTRACT What legal duties do states owe those subject to their power? Typically, we look to public law to answer this question, defining the powers and duties of governments through constitutional law, administrative law, and international law, which we distinguish from the private law of contracts, property, and tort. It was not always this way, […]

Harwick and Root, ‘The Feudal Origins of the Western Legal Tradition’

ABSTRACT This paper draws a distinction between ‘communitarian’ and ‘rationalist’ legal orders on the basis of the implied political strategy. We argue that the West’s solution to the paradox of governance – that a government strong enough to protect rights cannot itself be restrained from violating those rights – originates in certain aspects of the […]

Hall and Chouinard, ‘Systemic Wrongdoing, Public Authority Liability, and the Explanatory Function of Tort Law: Two Case Studies’

ABSTRACT The narrative character of tort law is fundamental to its content and function. The narratives of tort doctrine identify wrongful/risk-creating conduct, and explain that conduct as being within the control of a defendant in a way that justifies civil liability and compensation. The explanations provided by tort doctrine instruct us how to avoid the […]

Olha Cherednychenko, ‘Rediscovering the public/private divide in EU private law’

ABSTRACT This article explores the role of the public/private divide within EU private law. It shows that although EU private law cuts across the boundaries of public and private law, the conceptual distinction between these well‐established categories does matter within it and may lead to better law‐making in the EU more generally. The legal grammar […]

Fitzpatrick, Compton and Foukona, ‘Property and the State or “The Folly of Torrens”: A Comparative Perspective’

ABSTRACT Australian lawyers often extol the virtues of the Torrens system as a means to secure property in land. Yet, the comparative evidence of benefits is mixed and context-dependent, particularly in terms of the nature, provenance and capacity of the state. This article analyses ways in which positivist land laws, including Torrens systems of title […]

Johannes Chan, ‘Vindicatory Damages for Violation of Constitutional Rights: A Comparative Approach’

ABSTRACT Vindicatory damage is a difficult issue in public law with a strong private law dimension. Canada, New Zealand, South Africa and the United Kingdom have adopted different approaches to this issue. In arguing for a proper place of vindicatory damages in public law, this chapter examined the fundamental roles of public law/private law and […]

Sue-Mari Maass, ‘Property and “Human Flourishing”: A Reassessment in the Housing Framework’

ABSTRACT In South Africa, land/housing is a finite non-shareable type of property that must yield to stringent constitutional control to meet land reform and housing objectives, which is high on our constitutional agenda to redress injustices of the past and allow the previously dispossessed to take their rightful place in society. This article considers the […]

Graham and Beasley, ‘Trust the State: the relevance of principles of public law in trust law and practice’

ABSTRACT Lord Walker, in Futter and Pitt v HMRC, noted that there are ‘superficial similarities between what the law requires of trustees in their decision-making and what it requires of decision-makers in the field of public law’. We examine these similarities under the following headings: (1) natural justice; (2) the application of Wednesbury unreasonableness to […]

Cosmin Vraciu, ‘Property Rights and the Regulatory State’

ABSTRACT When state regulations prevent owners from certain uses of their property, is this action of the state a taking of property which requires compensation? One way of answering this problem, within a framework viewing property as a bundle of rights, is to inquire into whether the incident of use is an essential element of […]