Category Archives: Public law

Bridget Fahey, ‘Federalism by Contract’

ABSTRACT Just as private parties use contracts to facilitate joint projects and nation-states use treaties to organize joint undertakings, domestic governments use a breathtaking array of written instruments to coauthor legal rules and coordinate public programs. But we lack a vocabulary – literal and conceptual – to describe these agreements. Our meager vocabulary does not […]

‘Is the Constitutional Injunction “Ordinary”? Smethurst v Commissioner of Police

“In Smethurst v Commissioner of Police [2020] HCA 14 the High Court of Australia had to decide whether data obtained by police through an unlawful search of journalist Ms Annika Smethurst’s home should be returned to her or destroyed. In a controversial decision, which split the Court 4:3, the High Court refused to order the […]

Barnett and Sichelman, ‘The Case for Noncompetes’

ABSTRACT Scholars and other commentators widely assert that enforcement of contractual and other limitations on labor mobility deters innovation. Based on this view, federal and state legislators have taken, and continue to consider, actions to limit the enforcement of covenants not-to-compete in employment agreements. These actions would discard the centuries-old reasonableness standard that governs the […]

Leib and Kent, ‘Fiduciary Law and the Law of Public Office: Suggestions for a Research Agenda’

ABSTRACT A law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law – defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations – imposed core duties on public officeholders: Officials needed to serve the public good, not their […]

‘Distribution, Public Values, and Private Law’: Michigan State Law Review symposium

Restructuring United States Government Debt: Private Rights, Public Values, and the Constitution (Julia D Mahoney) How Cities Fail: Service Delivery Insolvency and Municipal Bankruptcy (Clayton P Gillette) National Sovereignty and International Patent Law (Robert Merges) The Qualities of Public Servants Determine the Quality of Public Service (Matthew C Stephenson) University Patenting: Is Private Law Serving […]

Lucas Brandão Borges Caiado, ‘Understanding State Liability for Damages Caused by Negligent Investigations and Lawsuits – An Analysis of the Brazilian Case in the Light of British and French Experiences’

ABSTRACT General investigations and lawsuits held under Brazilian jurisdiction are considered public records and negligent actions triggered by misuse of power can lead to right violations and cause losses to individuals and companies. In the last decade, the country has been experiencing changes when it comes to corruption. For the first time in history powerful […]

‘Abolishing Qualified Immunity Is Unlikely to Alter Police Behavior’

“The national movement galvanized by the killing of George Floyd has created the possibility of transformational change to policing. One reform that has generated broad discussion is eliminating ‘qualified immunity’, the court-created doctrine that makes it difficult for people whose civil rights are violated by police officers to obtain money damages in lawsuits …” (more) […]

‘Authority in Our Time: Accounting for the Concepts of Prerogative and Equity in the Legal Order’

Thomas Poole, The Strange Death of Prerogative in England, 43 University of Western Australia Law Review 42 (2018). As a private law theorist, I have been captivated recently by the work of public lawyer Thomas Poole on the concept of prerogative. Poole developed his account most fully in his analytically brilliant and deeply learned book, […]

Elbert de Jong, ‘EU agency tort law and its limited role in controlling agencies’

ABSTRACT The laws on the non-contractual liability of EU agencies not only provide a mechanism to determine whether the agency should make good the damage it caused to the claimant, they also offer the possibility to inform, influence, legitimize or constrain the power, behaviour, decision- and/or policy-making of EU agencies. This is the control function […]

‘A New Kind of Public/Private Partnership’

Rory Van Loo, The New Gatekeepers: Private Firms As Public Enforcers, 106 Virginia Law Review 467 (2020). The cooperation of public and private actors to achieve public goals is not new. More than 80 years ago, Louis Jaffe lauded the longstanding and substantial involvement of private groups in the regulatory sphere. The scope, range, and […]