Category Archives: Public law

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 […]

Julian Arato, ‘The Private Law Critique of International Investment Law’

Abstract International investment law goes further in disciplining States’ internal policy space than is commonly understood. This Article argues that investment treaties subtly constrain how nations organize and balance their internal systems of private law – including laws of property, contract, corporations, and IP. Problematically, they do so on a one-size-fits-all model, without regard for […]

Vanessa Casado-Pérez, ‘A Street View of Property’

Abstract Parking on public streets is scarce. The current allocation system for parking spots based on rule of capture coupled with low parking fees creates a tragedy of the commons scenario. The misallocation of parking has consequences for commerce, for access to public spaces, and for pollution and congestion. Municipalities have not widely adopted the […]

Ross Grantham, ‘To Whom Does Australian Corporate and Consumer Legislation Speak?’

Abstract A recent feature of corporate and consumer legislation in Australia is that as a matter of regulatory approach the legislation seems intended to speak directly to the end-user – the company director and the consumer – rather than lawyers. Accepting that such an approach is appropriate, the question this paper will explore is whether […]

Philip Rawlings, ‘“A Sacred Trust For The Future”: Regulating Insurance, 1800-70’

Abstract The history of commercial law has often been written as if it were merely a product of the common law, disregarding the role played by legislation. The principal exception to this has been work on company law. Until recently, the prevailing view has been that the Companies Acts 1844–62 represented the triumph of the […]

Timothy Lytton, ‘Exposing Private Third-Party Food Safety Auditors to Civil Liability for Negligence: Harnessing Private Law Norms to Regulate Private Governance’

Abstract In many industries, companies rely on private third-party audits to monitor their suppliers’ adherence to various standards. These audits are frequently paid for by the entity being audited, which creates a conflict of interest that incentives auditors to reduce the burden of audits by cutting corners and inflating audit scores. This article presents a […]