Category Archives: Public law

Shai Stern, ‘Property’s Tipping Point’

Abstract: There is a clear tension in the law between exercises of state police power in land-use regulation, including zoning laws, on the one hand, and takings under the Fifth Amendment on the other. Courts have struggled to find a dividing line between the two, but for their efforts we are left only with is […]

Eleanor Lumsden, ‘How Much Is Police Brutality Costing America?’

Abstract: The criminal law of the United States fails to stop the unlawful killing of minorities by law enforcement. In fact, it was never meant to do so. Civil tort law is also unequal to the task. The consequences of not correcting these legal failures are far-reaching for the United States and for our neighbors, […]

James Pfander, ‘Constitutional Torts and the War on Terror’

Abstract: This book explores the response of the federal courts to Bivens claims brought to secure remedies for torture and other human rights abuses that were committed in connection with the Bush Administration’s war on terror. It finds that such claims have been almost universally rejected, on one basis or another. Indeed, while some claims […]

Huq and Lakier, ‘The Triumph of Fault in Public Law’

Abstract: Federal criminal law and constitutional remedies might seem distinct bodies of law. In the closing decades of the twentieth century, however, parallel transformations swept both domains. In each field, the Supreme Court demonstrated increasing unwillingness to impose individualized legal consequences simply because a defendant committed the discrete acts that comprised a crime or constitutional […]

Sasha Baglay, ‘Who Is My Neighbour? The Duty Of Care In The Immigration Context: A Perspective From Canadian Case Law’

Abstract: This article reviews and analyzes recent Canadian jurisprudence on immigration-related torts, situating it in the context of the contrasting logic of immigration and tort law. Immigration law’s focus on the absolute power of the state to control admission directs courts away from the recognition of the duty of care. In contrast, tort law theory […]

Goldberg and Zipursky, ‘Hohfeldian Analysis and the Separation of Rights and Powers’

Abstract: At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of […]

Anna Holmes, ‘Will Australia Courts Move To A Caribbean Beat? The Question Of A State’s Standing To Sue In The Tort Of Misfeasance In Public Office’

Abstract: It is unclear whether an Australian body politic could ever gain standing to sue in the tort of misfeasance in public office. Throughout the common law world, the question of a state’s standing to sue in the tort has only arisen for judicial determination in the State of Belize. The Caribbean Court of Justice […]

Ronit Levine-Schnur, ‘Private Property and Public Power in the Occupied West Bank’

Abstract: Does an Occupying Power have a duty to protect private property rights of protected persons against acts of its own citizens? What is the extent of such a duty? This paper argues that under belligerent occupation, land disputes between individuals of both sides of the conflict are not a private matter even if the […]

Charles Mitchell, ‘Restitutionary Claims by Indirect Taxpayers’

Abstract: The paper discusses the first instance judgment in Investment Trust Companies (in liq) v HMRC [2012] STC 1150, an English case on the recovery of overpaid VAT, not by the service provider which accounted for and paid the tax, but by the customer which ultimately bore the economic burden of paying for it. The […]

‘Crossing Boundaries? Public Duties and Private Law’: Workshop, Leicester Law School, 21 October 2016

The aim of the workshop is to bring together private lawyers and human/constitutional rights lawyers from the UK and South Africa to reflect on the different ways in which these two jurisdictions have dealt with the relationship between tort law and human/constitutional rights law. The morning session will be focused on duties, reflecting especially on […]