Category Archives: Public law

Jamal Greene, ‘A Private Law Court in A Public Law System’

Abstract The US Supreme Court’s approach to human rights is a global outlier. In conceiving of rights adjudication in categorical terms rather than embracing proportionality analysis, the Court limits its ability to make the kinds of qualitative judgments about rights application required to adjudicate claims of disparate impact, social and economic rights, and horizontal effects, […]

D Theodore Rave, ‘Two Problems of Fiduciary Governance’

Abstract Two distinct governance problems arise whenever individuals surrender their autonomy to a collective decision-making process: a principal-agent problem and a tyranny-of-the-majority problem. But fiduciary law – both public and private – often conflates the two, speaking of the duties that the majority owes the minority in the same terms as the duties that agents […]

Ellen Rock, ‘Fault and Accountability in Public Law’

Abstract Accountability is a core public law, if not constitutional, value. It has close ties to the rule of law and separation of powers principles. Despite this status, the Australian public law system presents only a thin reflection of accountability. This is because it provides control of public power, but not restoration or punishment in […]

Regalia and Hall, ‘Waters of the State’

Abstract The Southern Nevada Water Authority, the agency that provides Las Vegas with water, is in the process of building a massive water pipeline from the eastern-central part of Nevada to Las Vegas. This pipeline is a nearly-unprecedented feat of engineering and water distribution, and stands to move over 27 million gallons of water a […]

‘Do Civil Rights Remedies Deter Police Misconduct?’

John Rappaport, How Private Insurers Regulate Public Police, 130 Harvard Law Review 1539 (2017). Constitutional tort remedies, like their common law counterparts, are presumed to deter future violations. But the inference of deterrence depends, of course, on a number of sub-inferences that may not hold. For example, deterrence may not obtain if the officer is […]

Galoob and Leib, ‘The Core of Fiduciary Political Theory’

Abstract ‘Fiduciary political theory’ applies norms developed within fiduciary law to public officials and political institutions. Fiduciary political theorists contend that these fiduciary norms describe or, at least, offer insights into the political authority of states and other major questions of political morality. However, many fiduciary political theorists disagree about methodology – specifically, how directly […]

Bram Akkermans, ‘A Comparative Overview of European, US and South African Constitutional Property Law’

Abstract Traditionally, there is a distinction between private law property law and constitutional property law. Private-law property law concerns itself with the relations between two private parties in respect to an object or thing. This area of law has, depending on the type of legal tradition, been in development since Roman times (civil law) or […]

William Boyd, ‘Just Price, Public Utility, and the Long History of Economic Regulation in America’

Abstract This Essay investigates the history of ‘just price’ and its influence on the concept and practice of public utility regulation in the United States. It begins with a discussion of the Scholastic understanding of just price and its relationship to commutative justice, with particular attention to the problem of coercion in economic exchange. The […]

Leah Litman, ‘Remedial Convergence and Collapse’

Abstract This Article describes and interrogates a phenomena of spillovers across remedies – how the legal standards governing the availability of remedies in cases regarding executive violations of individuals’ constitutional rights, particularly in the area of policing, have converged around similar ideas that narrow the availability of several different remedies. A similar set of limits […]

Wilkinson and Lokdam, ‘Law and Political Economy’

Abstract ‘Law and Political Economy’ surveys recent approaches to the study of phenomena at the intersection of law, politics and the economy. These take an interdisciplinary perspective, viewing markets as fields of social power that are not spontaneous but created and reproduced in the meeting of legal norms, political action and economic activity. Through regulating […]