Category Archives: Public law

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 […]

Ashok, Babie and Orth, ‘Balancing Justice Needs and Private Property in Constitutional Takings Provisions: A Comparative Assessment of India, Australia, and the United States’

ABSTRACT This Article explores the relationship between justice needs and private property in the constitutional takings provisions of the Indian, Australian, and American constitutions. Building upon established scholarship, it develops a theoretical framework within which to consider the way in which a state balances the requirement to provide minimal levels of justice for its citizens […]

Ian McElhaney, ‘If a Tree Falls in a Roadway, Is Anyone Liable?: Proposing the Duty of Reasonable Care for Virginia’s Road-Maintaining Entities’

ABSTRACT This Note considers whether a duty for road-maintaining entities is tenable under Virginia law. It also explores the rationale for imposing differing liabilities between landowners and road-maintaining entities. Part III reviews the various duties other states use with respect to dangerous roadside trees and concludes that the duty of reasonable care is most appropriate […]

Micah Rankin, ‘The Improbable Rise and Fall of Auckland Harbour Board v The King

ABSTRACT The question of whether courts can order the Crown to spend public monies in the absence of an appropriation has been a source of perennial legal controversy in Canada. Although a number of scholars have argued in favour of public funding orders, relatively limited attention has been paid to the underlying issue of whether […]

Andre Louw, ‘“The Common Law Is … not what It used to be”: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment’

ABSTRACT This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an ‘implied duty of fair dealing’ […]

Christopher Rodgers, ‘Towards a Taxonomy for Public and Common Property’

ABSTRACT This article argues that public property rights should be recognised as a separate category of property interest, different and distinct from private and common property interests and conferring distinctive rights and obligations on both ‘owners’ and members of the public. It develops a taxonomy to differentiate private, public and common property rights. The article […]

Shai Stern, ‘Imperfect Takings’

ABSTRACT Three concerns are inherent to the power of eminent domain – when a government forcibly takes away private property to provide a social good: abuse of this power, unfair distribution of burdens among members of society, and inefficient implementation of the government project. To protect against these undesirable outcomes, expropriation laws in most Western […]

Evan Fox-Decent, ‘The Constitution of Equity’

ABSTRACT I defend three related ideas regarding the law of Equity (‘Equity’), and discuss another that is much more speculative. The first two related ideas are that Equity has the characteristic form of public law, and that Equity shares public law’s basic concern, which is to regulate power held by one party for the benefit […]

Donal Nolan, ‘Tort and public law: overlapping categories?’

INTRODUCTION … As far as the structure of the article is concerned, I begin my analysis with the two tort doctrines that seem to me most clearly to fall within public law, namely the tort of misfeasance in public office and the availability of exemplary damages in cases of oppressive, arbitrary or unconstitutional action by […]