Category Archives: Public law

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 […]

Michael Bridge, ‘The exercise of contractual discretion’

INTRODUCTION … In the paragraphs that follow, I shall start with the impact of administrative law before turning to a brief account of the shape and temper of modern contract law. I shall then look at categories of cases dealing with controls on the exercise of contractual discretion, before turning to the particular instance of […]

Bang and Holle, ‘Making Legal History: State Liability for Negligence in Climate Change’

ABSTRACT In a recent judgment of 9 October 2018, the Gerechtshof Den Haag (the Hague Court of Appeals) ruled that the Dutch government was liable in tort for negligence by failing to comply with the duty of care to take adequate mitigation measures against climate change. The decision has wider bearings on public international law […]

Miller and Pojanowski, ‘Torts Against the State’

ABSTRACT The state provides the forum in which private parties can seek recourse for tortious wrongs other private parties cause. The state can also be liable for torts it commits. These observations are commonplaces. The state can also be a tort plaintiff, however, and that phenomenon has important implications for tort theory. Natural persons and […]

Vanessa Casado Perez, ‘The Street View of Property’

ABSTRACT Parking on public streets is scarce. The current allocation system for parking spots based on the 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 […]

Chris Himsworth, ‘Transplanting Irrationality from Public to Private Law: Braganza v BP Shipping Ltd

ABSTRACT For many years, similarities have been noticed between the motivations for, and the methods of, controlling the exercise of discretionary powers on the one hand, in public law and, on the other hand, in contract law. There has, however, been much disagreement about how far the two processes should aligned, and whether the grounds […]

‘Rumbling In Robes Round 2 – Civil Court Orders Dutch State To Accelerate Climate Change Mitigation’

“On 9 October 2018, the Civil Division of the The Hague Court of Appeal in the Netherlands has delivered its judgment on the appeal of the ‘Urgenda case’. The Court imposed an order to act on the Dutch government to adjust its policy from 20% to achieve a 25% emission reduction by 2020, compared to […]