Category Archives: Public law

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 […]

Greg Weeks, ‘Soft Law and Public Liability: Beyond the Separation of Powers?’

Abstract Soft law refers to domestic, non-legislative instruments which are designed to influence, modify or otherwise affect conduct. It relies for this result on the fact that people generally assume that soft law requires them to act and has immediate legal effect. Where this assumption is mistaken, individuals have a limited capacity to obtain remedies […]

Svetlana Yakovleva, ‘Should Fundamental Rights to Privacy and Data Protection be a Part of the EU’s International Trade “Deals”?’

Abstract This article discusses ways in which the General Agreement on Trade in Services (GATS) and post-GATS free trade agreements may limit the EU’s ability to regulate privacy and personal data protection as fundamental rights. After discussing this issue in two dimensions – the vertical relationship between trade and national and European Union (EU) law, […]

Devika Hovell, ‘On Trust: The UN as Fiduciary (A Reply to Rosa Freedman)’

Abstract In the literature responding to the problem of sexual violence by UN peacekeepers, scholars have focused on ‘shame’, ‘danger’ and even ‘hope’ as values around which to frame accountability processes. The premise of this article is that the UN’s failure to prevent sexual abuse and exploitation by peacekeepers is primarily a betrayal of trust, […]

Gerald Alloway, ‘Corruption, Contracts and Common Law Illegality’

Abstract Corruption is traditionally dealt with by criminal law. This paper queries whether the harm caused by corruption may be better dealt with through the law of contract. The author examines whether a contract procured through bribery could rightfully be ‘illegal in law’ under s 71 of the Contract and Commercial Law Act 2017; either […]

Stelios Tofaris, ‘The Negligence Liability of Local Authorities for Failure to Protect Children from Abuse: Where to Draw the Line?’

Abstract When should local authorities be liable in negligence for failure to protect children from abuse by third parties? The answer is of wide importance, but so is the way of reaching the answer. This makes CN v Poole Borough Council (2017), now before the Supreme Court, destined to be a landmark case in the […]

Kit Barker, ‘Modelling Public and Private Enforcement: The Rationality of Hybridity’

Abstract This article models the circumstances in which hybrid public and private enforcement systems exist in both public and private law. Although public law is normally enforced publicly and private law privately, there are a number of notable departures from this pattern – of which competition law provides one example – in which the 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 […]