Category Archives: Public law

Tom Cornford, ‘Assumption Of Responsibility By Public Authorities’

Abstract Since the House of Lords’ decision in the Gorringe case, there can be no reason for imposing a duty of care in negligence on a public authority that would not also count as a reason for imposing a duty of care on a private person. In this context assumption of responsibility, as the primary […]

‘Civil legal aid as a constitutional imperative: A response to Lord Sumption’

“Having prefaced his tenure as a Supreme Court Justice with a controversial lecture that (as Sir Stephen Sedley put it) he used ‘to reprove the judiciary which he was about to join for failing to keep out of the political arena’, the end of Lord Sumption’s judicial career is now marked by an address that […]

Lim and Chan, ‘Problems with Wednesbury unreasonableness in contract law: lessons from public law’

Introduction … This article identifies three key problems with the current use of Wednesbury to control the exercise of discretion in contract law. First, there are misconceptions about the nature of Wednesbury review in contract law as evinced in two dubious distinctions. Secondly, the intensity with which courts should apply Wednesbury unreasonableness is unclear. Finally, […]

Gonçalo Almeida Ribeiro, ‘The Effects of Fundamental Rights in Private Disputes’

Abstract This Essay articulates two intertwined points about the effects of fundamental rights in private disputes. First, it presents a case against the doctrine of direct horizontal effect, although not on the familiar grounds that it places individual freedom in jeopardy. It argues instead that legislative mediation instantiates values of legal certainty, deliberative idleness, and […]

Timothy Mulvaney, ‘Property-as-Society’

Abstract Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive […]

McInnes and Simpson, ‘The Shopkeeper’s Privilege and Canadian Tort Law’

Abstract Shoplifting is a major issue in Canada, with 87% of small and medium sized stores victimized each year. As a result, shopkeepers face a difficult decision between allowing this loss of product, or detaining the individual and facing tortious liability for an unlawful arrest. The legal debate regarding allowing a shopkeeper’s privilege to detain […]

Rocco Alessio Albanese, ‘Within the Public-Private Divide. Right to Housing and Consumer Law in Recent European Private Law Trends’

Abstract This paper intends to discuss some major European legal issues by building on the critique of a certain narrow relevance of human basic needs, according to traditional Western legal conceptions of the subject as well as of the public-private divide. In particular it aims at verifying the potentiality of consumer law for rethinking the […]

Stephen Thomson, ‘Judicial Review and Public Law: Challenging the Preconceptions of a Troubled Taxonomy’

Abstract Much has been written on whether public/private distinctions should be made by judicial review. Little explored is the related but distinct question of whether judicial review should itself be classed as a branch of public law. This important issue of taxonomy affects the limits, contours and methodology of review, yet is often taken for […]

Jo Braithwaite, ‘Thirty years of ultra vires: Local authorities, national courts and the global derivatives markets’

Abstract Between 1987 and 1989, Hammersmith and Fulham London Borough Council entered into nearly 600 derivatives transactions. In 1991, the House of Lords held that it lacked the capacity to do so and the contracts were therefore void. Taking this landmark litigation as its starting point, this article seeks to explain the persistence and evolution […]

Paul Craig, ‘Taxonomy and Public Law: A Response’

Abstract There are, unsurprisingly, various ways in which to organize the material that comprises public law broadly conceived. The criteria that are brought to bear vary considerably, as does the purpose of the enterprise. The consequences of the organizational endeavour can differ significantly, ranging from the semantic to the substantive. Jason Varuhas has proposed a […]