Category Archives: Public law

Steve Hedley, ‘Two laws of contract, or one?’

ABSTRACT Over the course of the 20th century, contract law has flowed in two streams: a ‘private law’ stream which emphasises private intention and fidelity to a bargain struck, and a ‘public regulation’ stream which emphasises public benefit and community values. The incompatibility between the two has always been clear to those who look, but […]

Guido Comparato, ‘Financial stability in private law: Intersections, conflicts, choices’

ABSTRACT The article discusses how the emergence of a policy of financial stability in international and European economic law has an impact on private relations, leading private law itself to become an instrument of financial stability. The result is an intersection of financial regulation and private law whereby financial regulation addresses consumer protection top-down and […]

NA Moreham, ‘Privacy and Police Investigations: ZXC v Bloomberg

“The Court of Appeal’s conclusion in ZXC v Bloomberg [2020] EWCA Civ 611 that people have a reasonable expectation of privacy in respect of the fact and details of a police investigation into their conduct raises important questions about both the scope of the misuse of private information tort and its relationship with defamation and […]

Lionel Smith, ‘A Tale of Two Patrimonies: Limits on the Flexibility of Trust Law’

ABSTRACT In Yared v Karam, 2019 SCC 62, the Supreme Court of Canada had to rule on the interaction of the Quebec law of trusts with the mandatory rules on the ‘family patrimony’. Since the Quebec trust is a ‘patrimony by appropriation’, the case involved the legal interaction of two patrimonies. There are lessons in […]

Roth and Bambauer, ‘From Damage Caps to Decarceration: Extending Tort Law Safeguards to Criminal Sentencing’

ABSTRACT The Supreme Court has recognized a civil defendant’s substantive due process right not to be subject to grossly excessive punitive damage awards. Such awards – even if furthering legitimate state interests in retribution and deterrence – must not be grossly disproportionate to the compensatory damages reflecting the actual harm suffered by the plaintiffs. More […]

Lui and Wong, ‘Challenging the distrust of administrative law: the case for transposition’

ABSTRACT It has often been said that the control of discretionary powers in trust law and administrative law should be segregated and any transposition of principles should be resisted. This article questions this orthodoxy. Two propositions will be made. First, the orthodoxy is not normatively sustainable, since both administrative law and trust law are underpinned […]

Boaz Segal, ‘Utilizing Tort Law to Deter Misconduct in the Public Sector’

ABSTRACT This article analyzes tort law’s ability to effectively guide the actions of public officials and agencies and proposes separating tort judgments into two components: the imposition of accountability and the imposition of liability. This separation leads, in turn, to the conclusion that it is sufficient to impose accountability – and to label the public […]

Graham Butler, ‘The EU’s Contractual Relations and the Arbitration Clause: Disputes at the Court of Justice of the European Union’

ABSTRACT Article 272 TFEU provides an arbitration clause and allows for the Court of Justice of the European Union to adjudicate on both private law and public law disputes between the EU and third parties with which the former has entered into contractual relations. Use of the arbitration clause is extensive given the range of […]

David Foxton, ‘Public law illegality in private law claims: some recent developments’

“Professor Dicey took pride in the fact that English law knew no ‘droit administratif’, suggesting that ‘in England, and in countries which, like the United States, derive their civilization from English sources, the system of administrative law, and the very principles upon which it rests, are in truth unknown’. Dicey was particularly exercised by the […]

He, Li, Li and Zhang, ‘Proprietary Information Cost of Contracting with the Government’

ABSTRACT We argue that contracting with the federal government involves significant proprietary information cost due to regulations requiring contractors to provide confidential information, which may then become available to outsiders via Freedom of Information Act (FOIA) requests. We provide evidence by showing that firms become more willing to bid for government contracts after a recent […]