Category Archives: Public law

David Ramos Munoz, ‘Do Fundamental Rights Conflict with Private Law?’

Abstract The relationship of fundamental rights and private law is often filled with mistrust, which results in a framework where (1) the issue of horizontal effect acquires an oversized importance; (2) the relationship is described in terms of the conflict between fundamental rights and private rights; and (3) fundamental rights are seen as a constraint […]

Lim and Chan, ‘Problems with Wednesbury Unreasonableness in Contract Law: Lessons from Public Law’

Abstract This article identifies three key problems with the English courts’ current use of Wednesbury unreasonableness to control the exercise of discretion in contract law. First, there are misconceptions about the nature of Wednesbury review in contract law. Second, the intensity with which courts should apply Wednesbury unreasonableness is unclear. Finally, the contents of Wednesbury […]

Wentong Zheng, ‘Untangling the Market and the State’

Abstract The government plays increasingly active and diversified roles in the modern economy. How to draw the boundary between the market and the state has emerged as a contentious issue in various areas of law, including constitutional law, antitrust, and international trade. This Article surveys and critiques the law’s current approaches to the market-versus-state divide, […]

Donal Nolan, ‘A Public Law Tort: Understanding Misfeasance in Public Office’

Abstract This chapter provides a theoretical analysis of the tort of misfeasance in public office. The current vitality of the tort is attested to by the frequency with which it appears in the law reports, and by the spirited opposition which met a (subsequently abandoned) proposal by the Law Commission of England and Wales that […]

Lukas van den Berge, ‘Rethinking the Public-Private Law Divide in the Age of Governmentality and Network Governance: A Comparative Analysis of French, English and Dutch Law’

Abstract This article presents an analysis of the ways in which the public-private law divide is envisioned in French, English and Dutch law. First, it explains why French law’s tradition of regarding public and private law as ‘two separated worlds’ is now outmoded, failing to live up to the present trends of ‘governmentality’ and ‘network […]

Paul Miller, ‘Fiduciary Representation’

Abstract The idea of fiduciary government is venerable. However, it has also been developed in new and sometimes provocative ways by contemporary theorists. Partly as a result, the idea is facing fresh criticism. Critics allege that government (in general, or in respect of particular governmental functions, branches, or offices) is not properly characterized as fiduciary […]

Anna Gelpern, ‘The Strained Marriage of Public Debts and Private Contracts’

Abstract ‘[S]overeign debt is a complex political institution, which cannot be reduced to creditor coordination or any other contract problem.’ Gelpern, Anna, The Strained Marriage of Public Debts and Private Contracts (2017). Forthcoming, Current History, volume 117, pp 22-28 (2018).

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 […]