Category Archives: Public policy

Francesco Paolo Patti, ‘The Denial of Restitution Under Italian Law: A Perspective on Patel v Mirza

ABSTRACT An important difference between the Italian system and the German and English systems concerns the scope of application: Article 2035 Italian Civil Code is limited to immoral contracts, ie contracts that are against good morals. Thus, if the parties acted unlawfully (but not immorally), the contract is void and ordinary restitutions apply. The rationale […]

Jason MacLean, ‘Public Policy Is an Unruly Horse and The Law of Contract Is an Ass: A Comment On Douez v Facebook, Inc

ABSTRACT Online boilerplate contracts pose fundamental challenges to the traditional principles of contract law. Can a contract characterized by the complete absence of bargaining, choice, and the possibility of amendment be meaningfully characterized as a contract? Do consumers have a real choice as to the non-negotiable terms and conditions (including litigation avoidance clauses) presented by […]

Angus Macauley, ‘Contracts Against Public Policy: Contracts For Meretricious Sexual Services’

Abstract The law has historically held that contracts for the provision of meretricious sexual services – providing sexual services for reward – are contrary to public policy and are therefore void and unenforceable. In Ashton v Pratt (No 2) [2012] NSWSC 3 (16 January 2012), Brereton J held that this was still the position in […]

The ‘Acceptable’ Cartel? Horizontal Agreements under Competition Law and Beyond: London School of Economics and Political Science, 22 March 2019

The optimal treatment of potentially restrictive horizontal agreements is one of the most discussed and disputed questions within contemporary competition law. Taking as its starting point the centenary of McEllistrim v Ballymacelligot Co-op, a House of Lords decision on the restraint of trade doctrine, this one-day workshop will explore regulatory approaches to horizontal coordination in […]

Cook and Krawiec, ‘If We Allow Football Players and Boxers to be Paid for Entertaining the Public, Why Don’t We Allow Kidney Donors To Be Paid For Saving Lives?’

Introduction … This article contrasts the compensation ban on organ donation with the legal treatment of football and other violent sports where both acute and chronic injuries to participants are common. Although there is some debate about how best to regulate these sports to reduce the risks, there appears to be no debate about whether […]

‘The Role of Contracts in ART’

Deborah Zalesne, The Intersection of Contract Law, Reproductive Technology, and the Market: Families in the Age of ART, 51 University of Richmond Law Review 419 (2017). Every fall, the second day of my Contracts course is spent discussing the Baby M case concerning the enforceability of a surrogacy contract. The students engage in a moot […]

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 […]