Category Archives: Public policy

Pascal McDougall, ‘Policy, Politics and Aesthetics in Non-American Private Law: A Comparative Study of Contract Performance Interruption’

Abstract In the United States, it is widely accepted that ‘policy,’ meaning conflicting societal values and interests that can be weighed, plays an important role in private law reasoning. However, in many other polities, including France, England, Quebec and English Canada which this article scrutinizes, the role of policy in private law is either strenuously […]

Thomas Gallanis, ‘The Use and Abuse of Governing-Law Clauses in Trusts: What Should the New Restatement Say?’

Abstract This Essay offers a novel solution to a thorny problem at the intersection of trust law and the conflict of laws: When should the settlor be able to choose a governing law other than the law of the jurisdiction with the most significant relationship to the trust? The law of the conflict of laws […]

Samuel Fresher, ‘Opioid Addiction Litigation and the Wrongful Conduct Rule’

Abstract The United States is facing an opioid addiction crisis. Can our civil courts help? This Comment explores obstacles to recovery for plaintiffs in tort suits against health care institutions and practitioners in opioid addiction litigation. It argues that defenses based on plaintiffs’ wrongful conduct, which deny plaintiffs access to civil remedies due to their […]

Nicholas McBride, ‘The Defence of Illegality: Not a Principle of Justice?’

Abstract This paper criticises the common trope that the defence of illegality is not based on a principle of justice. It sets out three different understandings of what justice is concerned with – a moral, allocative, and political understanding – and shows that whichever understanding of justice one adopts, the defence of illegality can be […]

Nicholas McBride, ‘The Future of Clean Hands’

Abstract This paper introduces the concept of a supererogatory remedy (a remedy which no one has a right to, and which it is not necessary to award) and seeks to argue that the equitable defence of clean hands has a distinctive role to play in determining whether such a remedy will be granted. As such, […]

Bruce Feldthusen, ‘Please Anns – No More Proximity Soup’

Abstract Under the Anns/Cooper template ‘proximity’ is nominally the key concept the Canadian courts employ when deciding whether to recognize novel duties of care in negligence. This article reviews Supreme Court decisions over the past 40 years. It exposes ‘proximity’ as a shape-shifter and the two-step Anns/Cooper template as a sham. The author argues that […]

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 […]