Category Archives: Public law

Calvin Liang, ‘The Application of Administrative Law Principles in Private Law: The Case for Convergence’

ABSTRACT The common law represents an ongoing negotiation between past precedents and present-day principles and policies. If, as will be argued, the basis of the common law and judicial review in particular is the courts’ duty to protect the individual from the effects of dominant power, then we must look to where that dominant power […]

Vishal Rakhecha, ‘Reimagining Copyright in Government Works’

ABSTRACT Governments in India have over the years produced and continue to produce a large quantity of works. These works are created with public funds and in most cases with the intent of public education. However, the government also actively asserts copyright in these works, which can and have acted as a barrier to the […]

Cristina Carmody Tilley, ‘Private Law, Public Law, and the Production of American Virtue’

INTRODUCTION … This Essay suggests that the time has come to revitalize private law – tort law, in particular – as an engine of national virtue. The groundswell of activism in the summer of 2020 lends itself to particularizing this argument to the virtue of racial justice, but it is equally applicable to gender justice, […]

Sabrina Nanchahal, ‘“But We’ve Spent the Money”: Defending Overpaid Tax Claims under English and German Law’

ABSTRACT Despite extensive litigation concerning restitution claims against the tax authority in the English courts, the role and parameters of the change of position defence have not been satisfactorily established in this context. German law provides a clear example of how these issues can be addressed within a public law restitution framework. This article explores […]

Kelli Alces Williams, ‘Leaders Are Not Fiduciaries’

ABSTRACT Leaders have long been described as fiduciaries because they are entrusted with the power to make decisions that significantly affect the lives and welfare of others. While trustworthiness is an admirable and necessary quality in a leader, fiduciary doctrine describes neither the bounds of a leader’s behavior nor the protections enjoyed by the governed. […]

Marie Manikis, ‘Conceptualising the Victim in England and Wales and the United States within a Spectrum of Public and Private Interests’

ABSTRACT The conception of the victim in criminal justice systems has changed across history and legal systems. A framework that considers the private and public along a spectrum and offers nuances between private and public interests illuminates the ways victims have been conceived within mechanisms of participation in various criminal justice systems and the ways […]

Mark Leeming, ‘Lawyers’ Uses of History, from Entick v Carrington to Smethurst v Commissioner of Police

ABSTRACT Lawyers use history in different ways. This is partly because judges are directed to decide consistently with what has been decided before, such that continuity with the past is a matter of legal duty. But, as Maitland said, historical research serves the purpose of explaining and therefore lightening the pressure that the past exercises […]

Ellen Rock, ‘Brett Cattle: a New Lease on Life for Misfeasance?’

ABSTRACT Conventional wisdom has it that a plaintiff rarely succeeds in making out the tort of misfeasance in public office – it is a cause of action that is more relevant in theory than in practice. The recent case of Brett Cattle Company Pty Ltd v Minister for Agriculture offers us a rare glimpse into […]

William Swadling, ‘Unjust enrichment: value, rights, and trusts’

INTRODUCTION In recent years, arguments have been made that there are two types of enrichment in the law of unjust enrichment: value and rights. The two may overlap, as rights generally have value, but they are nonetheless distinct. The leading proponent of this view is Robert Chambers. This insight has led to arguments for proprietary […]

Lionel Smith, ‘Conflict, Profit, Bias, Misuse of Power: Dimensions of Governance’

ABSTRACT Norms prohibiting conflicts of interest apply in private fiduciary relationships and also to many public office holders. Whether or not such relationships are founded on trust, such norms can cultivate trust towards those holding governance authority, whether in interpersonal, civic or political relationships. In legal and philosophical discourse, however, conflicts of interest are rarely […]