Category Archives: Public law

‘Law’s Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law’

David A Dana, ‘Public Nuisance Law: When Politics Fail’ (May 26, 2021), available at SSRN. Public nuisance is in the news again. Three important opioid cases have been recently decided. In November plaintiffs lost a bench trial in California state court, and eight days later, the Oklahoma Supreme Court reversed a $465 million trial verdict, […]

Wei Xuan Timothy Chan, ‘Resulting and Constructive Trusts over Public Housing – Recent Developments and the Way Forward’

ABSTRACT Inherent in any public housing system which seeks to provide subsidised housing for sale is the need to impose restrictions on ownership and alienation in order to prevent abuse by those who would seek to exploit those subsidies for profit. In Singapore, Section 51(10) of the Housing and Development Act restricts the operation of […]

Haim Abraham, ‘Tort Liability, Combatant Activities, and the Question of Over-Deterrence’

ABSTRACT Immunity from tort liability for losses that are inflicted during warfare is often justified by a supposedly intuitive concern: without immunity, states and combatants will be over-deterred from engaging in combat. In this article, I test this common perception using three frameworks. First, I theoretically analyze the impact of tort liability on relevant state […]

Erika Chamberlain, ‘Francis v Ontario: Can The Crown Restore Its Own Immunity?’

“In Francis v Ontario, the Court of Appeal for Ontario had its first opportunity to weigh in on the Ontario Crown Liability and Proceedings Act, 2019 [CLPA]. The Act, which was introduced as part of an omnibus bill, purports to expand the scope of Crown immunity in tort to include not just policy decisions but […]

‘Price and Sovereignty’

“… This Note describes the legal achievement that underlaid that political success. It argues that price controls, whatever their merits as policy, represent an unusually direct challenge to neoliberalism’s central economic and political premises. Then, it shows how the Court’s price control jurisprudence offers insights into what’s been lost in our late neoliberal era. Against […]

Rachael Walsh, ‘Distributing the Costs of Change: Property Transitions and Pacts’

ABSTRACT This paper considers the question of property transitions – of how quickly rules should be permitted to change in ways that have adverse impacts on discrete groups of owners – in light of Hanoch Dagan’s theory of property as a key autonomy-facilitation tool as articulated in A Liberal Theory of Property (Cambridge University Press, […]

Yehuda Adar, ‘The Damages Puzzle in Government Bonds’

ABSTRACT What are the damages to which an investor facing a repudiation or a material breach by a government issuer is entitled? The conventional answer that most investors would probably give is that, in the face of such a default on the bond indenture, damages should include both the repayment of the principal (‘par’) and […]

Paul Craig, ‘The EU, the Member States and Damages Liability’

ABSTRACT It is instructive to return to fundamentals when thinking about EU damages liability and state liability in damages for breach of EU law. The evolution of the case law is especially interesting given that the Court was working from something akin to a tabula rasa in both instances. Article 215 EEC gave the ECJ […]

Hobson and Miola, ‘Should we criminalize a deliberate failure to obtain properly informed consent?’

ABSTRACT This paper takes the form of a polemic and thought experiment. The starting point is that, if medical law’s claims to place autonomy at the heart of the enterprise are to be taken seriously, then autonomy either needs to be considered a recoverable harm, or the most egregious infringements should be subject to the […]

Jonathan Adler, ‘Displacement and Preemption of Climate Nuisance Claims’

ABSTRACT New York City and other municipalities have filed state-law-based nuisance suits against fossil fuel companies seeking compensatory damages for the consequences of climate change. Previous nuisance claims, filed under federal common law, were held to be displaced by federal environmental statutes. Defendants have argued that state-law-based claims should likewise be preempted. Yet while the […]