Category Archives: Public law

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 […]

Kristen Barnes, ‘Reframing Housing: Incorporating Public Law Principles into Private Law’

ABSTRACT A new public-private law paradigm is developing with respect to the relationship of the state to private contracts. The paradigm melds private law concepts like unconscionability, good faith, and fair dealing with the public human rights principles of dignity and vulnerability. I trace this paradigm shift in the context of the housing law of […]

‘Tales from the Public-Private Divide: Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7′

“The Supreme Court of Canada’s decision in Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 touches on a couple of issues arising at the intersection between public and private law. The case was about contractual discretion. M contracted with W to provide waste removal and transportation services. For many years […]

Gregory Sisk, ‘Recovering the Tort Remedy for Federal Official Wrongdoing’

ABSTRACT As the Supreme Court weakens the Bivens constitutional tort cause of action and federal officers avoid liability for unlawful behavior through qualified immunity, we should recollect the merit of the common-law tort remedy for holding the federal government accountable for official wrongdoing. For more than a century after ratification of the Constitution, federal officers […]

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 […]