Category Archives: Public law

Donal Nolan, ‘Tort and Public Law: Overlapping Categories?’

ABSTRACT This article explores the relationship between tort law and public law as legal categories. The principal argument of the article is that certain aspects of modern tort law are best understood as falling within public law, rather than private law. I begin my analysis with the two tort doctrines that seem to me most […]

Benjamin Levin, ‘Wage Theft Criminalization’

ABSTRACT Over the past decade, workers’ rights activists and legal scholars have embraced the language of ‘wage theft’ in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and […]

Nicolas Lambert, ‘Effective Remediation in Public Procurement: Contract Damages Versus Judicial Review’

ABSTRACT In Canada, contract liability is the primary means for addressing public contract award disputes. However, while courts are also recognizing the role that judicial review can play therein, public authorities are increasingly falling back on exclusions of liability in order to limit recourse to civil litigation. This development is important given that governments across […]

‘Public Authorities and Tort Law: A Difficult Marriage?’: Journal of European Tort Law special issue

Public Authorities and Tort Law: a Difficult Marriage? (Ilse Samoy and Christopher Borucki) Policy Orientation in Public Authority Liability: a Comparative Law Perspective (Anne LM Keirse) Extracontractual Liability Law as a Policy Instrument: Public Law in Disguise or in Chains? (Pieter Gillaerts) Is the Infringement of a Treaty a Fault? (Françoise Auvray) Managing Mass Damages […]

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 […]