Category Archives: Public law

Gregory Keating, ‘Is Tort Law “Private”?’

ABSTRACT A prominent, important strand of contemporary thinking about tort law – represented most powerfully by the work of Arthur Ripstein and Ernest Weinrib – has coalesced around the thesis that the concept of ‘private law’ is the key to the subject. In one familiar usage of the term, the thesis that tort is private […]

Janet McLean, ‘For a Law of Public Contract Per Se: An Intervention from Liberal Contract Theory’

ABSTRACT Judges in judicial review cases in New Zealand and the UK currently begin with the presumption that the existence of a contract means that the matter should be treated as a private law one – at least in the absence of a special ‘public element’. This article argues that all contracts with government entities […]

Call for Papers: ‘State Accountability under Private, Public, and International Law’: London School of Economics and Political Science, 9 November 2019

The accountability of states for unlawful actions they commit or wrongful losses they inflict presents theoretical and practical challenges. For instance, the applicability of certain doctrines is contested; the line between a wrongful or unlawful action, and a permitted one, can be blurry; and procedural hurdles can frustrate potential claims. This conference, which will be […]

Haim Abraham, ‘Tort Liability for Belligerent Wrongs’

ABSTRACT Most legal systems deny civilians a right to compensation for losses they sustain during belligerent activities. Arguments for recognising such a right are usually divorced, to various degrees, from the moral and legal underpinnings of the notion of inflicting a wrongful loss under either international humanitarian law or domestic tort law. My aim in […]

Richard Fallon, ‘Bidding Farewell to Constitutional Torts’

ABSTRACT The Supreme Court displays increasing hostility to constitutional tort claims. Although the Justices sometimes cast their stance as deferential to Congress, recent cases exhibit aggressive judicial lawmaking with respect to official immunity. Among the causes of turbulence in constitutional tort doctrine and the surrounding literature is a failure – not only among the Justices, […]

Paul Stern, ‘Tort Justice Reform’

ABSTRACT This Article calls for a comprehensive reform of public tort law with respect to law enforcement conduct. It articulates an effective and equitable remedial regime that reconciles the aspirational goals of public tort law with the practical realities of devising payment and disciplinary procedures that are responsive to tort settlements and judgments. This proposed […]

Dodsworth and Bisping, ‘Energy Price Cap – a Disservice to Consumers’

ABSTRACT The UK energy regulator Ofgem recently announced that it would be capping the standard variable tariff that gas and electricity providers can charge consumers, having been tasked to do so by the Domestic Energy Gas and Electricity (Price Cap) Act 2008. The aim that the Government pursues with this legislative measure is to protect […]

Rehan Abeyratne, ‘Ordinary Wrongs as Constitutional Rights: The Public Law Model of Torts in South Asia’

ABSTRACT … While private tort law has remained stillborn in South Asia, constitutional law in the region has blossomed. In the 1980s and 90s, the Indian Supreme Court vastly expanded its constitutional jurisdiction through a series of procedural innovations known as Public Interest Litigation (PIL), which has been emulated across the region. This article examines […]

Jelena Gligorijević, ‘Privacy at the intersection of public law and private law’

INTRODUCTION The exact nature and desirability of any intersection between private law and public law can generate much debate. In view of the developments in English human rights jurisprudence, the distinction between private law and public law in England is sometimes seen as less definite than in other common law jurisdictions. That does not, however, […]

Liam Harris, ‘Understanding public policy limits to the enforceability of forum selection clauses after Douez v Facebook

ABSTRACT This article explores the nature of public policy limits to the enforcement of forum selection clauses, recently considered by the Supreme Court of Canada in Douez v Facebook. The public policy factors relied on by the plurality of the Court, inequality of bargaining power and the quasi-constitutional nature of the right at issue, possess […]