Category Archives: Public law

Fitzpatrick, Compton and Foukona, ‘Property and the State or “The Folly of Torrens”: A Comparative Perspective’

ABSTRACT Australian lawyers often extol the virtues of the Torrens system as a means to secure property in land. Yet, the comparative evidence of benefits is mixed and context-dependent, particularly in terms of the nature, provenance and capacity of the state. This article analyses ways in which positivist land laws, including Torrens systems of title […]

Johannes Chan, ‘Vindicatory Damages for Violation of Constitutional Rights: A Comparative Approach’

ABSTRACT Vindicatory damage is a difficult issue in public law with a strong private law dimension. Canada, New Zealand, South Africa and the United Kingdom have adopted different approaches to this issue. In arguing for a proper place of vindicatory damages in public law, this chapter examined the fundamental roles of public law/private law and […]

Sue-Mari Maass, ‘Property and “Human Flourishing”: A Reassessment in the Housing Framework’

ABSTRACT In South Africa, land/housing is a finite non-shareable type of property that must yield to stringent constitutional control to meet land reform and housing objectives, which is high on our constitutional agenda to redress injustices of the past and allow the previously dispossessed to take their rightful place in society. This article considers the […]

Graham and Beasley, ‘Trust the State: the relevance of principles of public law in trust law and practice’

ABSTRACT Lord Walker, in Futter and Pitt v HMRC, noted that there are ‘superficial similarities between what the law requires of trustees in their decision-making and what it requires of decision-makers in the field of public law’. We examine these similarities under the following headings: (1) natural justice; (2) the application of Wednesbury unreasonableness to […]

Cosmin Vraciu, ‘Property Rights and the Regulatory State’

ABSTRACT When state regulations prevent owners from certain uses of their property, is this action of the state a taking of property which requires compensation? One way of answering this problem, within a framework viewing property as a bundle of rights, is to inquire into whether the incident of use is an essential element of […]

Gregory Keating, ‘Is Tort Law “Private”?’

ABSTRACT A prominent, important strand of contemporary thinking about tort law – represented most powerfully by the work of Arthur Ripstein and Ernest Weinrib – has coalesced around the thesis that the concept of ‘private law’ is the key to the subject. In one familiar usage of the term, the thesis that tort is private […]

Janet McLean, ‘For a Law of Public Contract Per Se: An Intervention from Liberal Contract Theory’

ABSTRACT Judges in judicial review cases in New Zealand and the UK currently begin with the presumption that the existence of a contract means that the matter should be treated as a private law one – at least in the absence of a special ‘public element’. This article argues that all contracts with government entities […]

Call for Papers: ‘State Accountability under Private, Public, and International Law’: London School of Economics and Political Science, 9 November 2019

The accountability of states for unlawful actions they commit or wrongful losses they inflict presents theoretical and practical challenges. For instance, the applicability of certain doctrines is contested; the line between a wrongful or unlawful action, and a permitted one, can be blurry; and procedural hurdles can frustrate potential claims. This conference, which will be […]

Haim Abraham, ‘Tort Liability for Belligerent Wrongs’

ABSTRACT Most legal systems deny civilians a right to compensation for losses they sustain during belligerent activities. Arguments for recognising such a right are usually divorced, to various degrees, from the moral and legal underpinnings of the notion of inflicting a wrongful loss under either international humanitarian law or domestic tort law. My aim in […]

Richard Fallon, ‘Bidding Farewell to Constitutional Torts’

ABSTRACT The Supreme Court displays increasing hostility to constitutional tort claims. Although the Justices sometimes cast their stance as deferential to Congress, recent cases exhibit aggressive judicial lawmaking with respect to official immunity. Among the causes of turbulence in constitutional tort doctrine and the surrounding literature is a failure – not only among the Justices, […]