Category Archives: Public policy

Hoffman and Hwang, ‘The Social Cost of Contract’

ABSTRACT When private parties perform contracts, the public bears some of the costs. But what happens when society confronts unexpected contractual risks? During the COVID-19 pandemic, completing particular contracts – such as following through with weddings, conferences, and other large gatherings – will greatly increase the risk of rapidly spreading disease. A close reading of […]

Frederick Wilmot-Smith, ‘Illegality as a Rationing Rule’

ABSTRACT Legal systems have limited resources; those resources have to be distributed, and ideally the distribution would be just. This paper considers the role of legal doctrines – and, in particular, the doctrine of illegality – to ration and distribute individuals’ access to the goods of a legal system. My conclusion is that the illegality […]

Matthew Dyson, ‘Coherence and Illegal Claims’

ABSTRACT What do we want ‘coherence’ to do in legal reasoning? That is, when we use ‘coherence’, what are we trying to achieve by its use rather than by using another idea? Lawyers should ask and answer a question like that about many concepts, such as ‘reasonableness’, ‘duty’, ‘foreseeability’, ‘wrongfulness’, but they have particular importance […]

Anthony Sebok, ‘Going Bare in the Law of Assignments: When is an Assignment Champertous?’

INTRODUCTION Dr David Capper’s paper on ‘The Assignment of a Bare Right to Litigate’ is a response to the Irish treatment of champerty and maintenance. It is judicious in its treatment of recent Irish and other common law precedent, and the conclusion it draws is a cautious one. Capper appears to sympathize with the concerns […]

Griffin Toronjo Pivateau, ‘An Argument for Restricting the Blue Pencil Doctrine’

ABSTRACT When faced with an unreasonable noncompetition agreement, a court faces a choice. In some states, a court may simply refuse to enforce such an agreement. In other states, however, a court may use a legal doctrine called the blue pencil doctrine. Under the blue pencil doctrine, courts are permitted to cross out overbroad provisions […]

Alan Bogg, ‘Okedina v Chikale and Contract Illegality: New Dawn or False Dawn?’

INTRODUCTION In what circumstances should workers be entitled to enforce their legal rights in a court of law where the legal claim is somehow tainted by criminal activity? In Okedina v Chikale the Court of Appeal considered the effects of the illegality doctrine on a migrant worker’s contract claims in circumstances where she did not […]

William Day, ‘Contracts, Illegality and Comity: Ralli Bros Revisited’

ABSTRACT There has always been considerable uncertainty about the nature and scope of the rule by which contractual performance is excused if illegal in the place of performance, even though performance would not be illegal by the contract’s governing law. This article revisits the so-called ‘Ralli Bros rule’ and looks at how the scope of […]

‘Foreign Limitation Periods in England and Wales: Roberts v SSAFA

“When a British woman gives birth in a German hospital staffed with British midwives on a contract from the British ministry of defence, what law applies and to what extent? This seemingly simple question took Mrs Justice Foster, in the English and Welsh High Court of Justice, 299 paragraphs to answer in a mammoth judgment […]

‘Tort claims and illegal acts to be considered by the Supreme Court – again’

“The highest court will once again consider the basis and application of the doctrine that no recovery should flow from illegal acts (often cited in Latin as the ex turpi causa rule), something which has been before the Supreme Court on several occasions in recent years in very different factual settings. The latest case involves […]

Lim and Urbina, ‘Understanding Proportionality in the Illegality Defence’

ABSTRACT While there is extensive analysis of proportionality in public law, little has been written about this subject in private law. This paper fills this gap in the literature by engaging in a comparative analysis of proportionality in private and public law, using the illegality defence, a crucial doctrine in private law, as a case […]