Category Archives: Public policy

Martin Hui, ‘Triumph or tragedy? Hong Kong’s approach on illegality defence in civil claims after Patel v Mirza

Abstract In Patel v Mirza, the Supreme Court resolved the long-standing problem on illegality defence as ‘an incoherent mass of inconsistent authority’, by adopting a brand new ‘Range of Factors’ Test with a ‘trio of considerations’ (policy-based) and overruling the severely criticized Reliance Test (rule-based) in Tinsley v Milligan. One may wonder whether Hong Kong […]

Noam Gur, ‘Ronald Dworkin and the Curious Case of the Floodgates Argument’

Abstract This article juxtaposes a jurisprudential thesis and a practical problem in an attempt to gain critical insight into both. The jurisprudential thesis is Dworkin’s rights thesis. The practical problem revolves around judicial resort to the floodgates argument in civil adjudication (or, more specifically, a version of this argument focused on adjudicative resources, which is […]

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 […]

Gladwin-Geoghegan and Foster, ‘Police liability in negligence: immunity or incremental liability?’

Introduction The so-called immunity of the police in negligence with respect to their conduct in investigating crime has caused much legal debate, not only in terms of its impact on the development of tortious principles via the concept of public policy, but also its impact on the human rights’ claims of the victims of such […]

Just Published: ‘Illegality after Patel v Mirza’ (Sarah Green and Alan Bogg eds)

1. Introduction (Alan Bogg and Sarah Green) Part I: General Perspectives on Illegality 2. A New Dawn for the Law of Illegality (Andrew Burrows) 3. The Law of Illegality: Identifying the Issues (James Goudkamp) 4. Restitution or Confiscation/Forfeiture? Private Rights versus Public Values (Robert Sullivan) 5. Not a Principle of Justice? (Nicholas J McBride) 6. […]

Grantham and Jensen, ‘The Proper Role of Policy in Private Law Adjudication’

Abstract The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and […]

Michal Gal, ‘Algorithms as Illegal Agreements’

Abstract Despite the increased transparency, connectivity, and search abilities that characterize the digital marketplace, the digital revolution has not always yielded the bargain prices that many consumers expected. What is going on? Some researchers suggest that one factor may be coordination between the algorithms used by suppliers to determine trade terms. Simple coordination-facilitating algorithms are […]

Karton and Shervill, ‘New Wine in Old Bottles: Corrupt Contracts in Canadian Private Law’

Abstract The Canadian criminal law on foreign corruption recently experienced great upheaval, as Canada worked to bring its legislation up to international standards following years of inadequate substantive law and lackadaisical prosecutions. Canadian private law, by contrast, has remained highly stable on paper, but longstanding doctrines have been effectively applied to modern, internationalized forms of […]

JE Penner, ‘We All Make Mistakes: A “Duty of Virtue” Theory of Restitutionary Liability for Mistaken Payments’

Abstract In contrast to the moral foundations of contract, tort, and the law of property, which are generally regarded as elements of Kantian ‘right’, the liability to return the value of mistaken payments is, it is argued, an example of the law’s enforcing a duty of virtue, the legalisation of the duty of beneficence in […]

James Lee, ‘Tax, equity and artificiality’

Introduction: … The artificiality caveat proposed by Lord Walker has since been criticised by academics and treated sceptically by judges, in both England and elsewhere, with suggestions that it may not form a meaningful part of the test at all. The reception has been particularly frosty in offshore jurisdictions: in one Isle of Man case, […]