Category Archives: Public policy

Janet O’Sullivan, ‘Illegality and Tort in the Supreme Court’

“The effect of illegality on claims in private law is an exceptionally knotty problem. In Patel v Mirza [2016] UKSC 42, an unjust enrichment claim, the Supreme Court (following the Law Commission’s nudge) adopted a discretionary approach, balancing relevant public policy concerns to determine whether an illegality defence applied. Lord Toulson identified a ‘trio of […]

Marketa Trimble, ‘The Public Policy Exception and International Intellectual Property Law’

ABSTRACT Public international law affects private international law (conflict of laws) in a myriad of ways. This article discusses potential effects of international intellectual property (‘IP’) law on the application of the public policy exception, which is used as a limitation on the application of foreign law and on the recognition and enforcement of foreign […]

Saule Omarova, ‘The “Franchise” View of the Corporation: Purpose, Personality, Public Policy’

ABSTRACT The sources and nature of business corporations’ legal personhood and purpose are intensely debated issues in today’s academic and political discourse. As the dominant ‘shareholder primacy’ model comes under an increasing pressure, scholars and practitioners of corporate law are searching for alternative formulations of what a ‘good’ corporation is. This essay (a chapter contribution […]

Prescott and Starr, ‘Subjective Beliefs about Contract Enforceability’

ABSTRACT This paper assesses the content, role, and adaptability of subjective beliefs about contract enforceability in the context of postemployment covenants not to compete (‘noncompetes’). We show that employees of all stripes tend to believe that their noncompetes are enforceable, even when they are not. We provide evidence in support of both supply- and demand-side […]

Leon Vincent Chan, ‘Taming the Unruly Public Policy Horse in Private International Law in Family Law: A Pragmatic Singaporean Approach to the Recognition of Foreign Same-Sex Marriages and Divorces’

ABSTRACT With the legalisation of same-sex marriages by more states, it is a matter of time before jurisdictions that have yet to do so will need to decide on the recognition of foreign same-sex marriages and divorces. Public policy – the unruly horse – peers its head out again even if these marriages and divorces […]

‘The War on Compensation: Troubling Signs for Civilian Casualties in the Gaza Strip’

“The last round of belligerency between Hamas and Israel claimed a significant toll from civilians, with many arguing that some of the more devastating activities conducted by the IDF were in breach of the laws of war (for example, here, here, and here). Just days before a ceasefire was declared, Judge Shlomo Friedlander of Israel’s […]

David Cabrelli, ‘Regulating Restrictive Covenants in English Employment Law: Time for a Rethink?’

ABSTRACT The potentially chilling effects of non-compete covenants on the ambitions and capacities of former employees to forge careers as commercial entrepreneurs have been propelled to the forefront of public debate in recent years. For example, in the US, reports in the press of rank and file employees working in sandwich bars being restrained by […]

Liron Shmilovits, ‘When is illegality a defence to a tort?’

ABSTRACT The illegality defence is an important element of private law, but its operation has been unpredictable. In Patel v Mirza, the Supreme Court opted for a flexible approach, which does not increase predictability. This approach was recently confirmed in Henderson v Dorset Healthcare University NHS Foundation Trust and Stoffel and Co v Grondona. I […]

‘Illegal Sex Toy Patents’

Sarah R Wasserman Rajec and Andrew Gilden, ‘Patenting Pleasure’ (February 25, 2021), available at SSRN. In ‘Patenting Pleasure’, Professors Sarah Rajec and Andrew Gilden highlight a surprising incongruity: while many areas of US law are profoundly hostile to sexuality in general and the technology of sex in particular, the patent system is not. Instead, the […]

John Mead, ‘Killer not able to bring clinical negligence claim in her own right: Ecila Henderson v Dorset Healthcare University NHS Foundation Trust’ (Supreme Court, 30 October 2020)

“Introduction: Ms Henderson (EH) killed her mother whilst experiencing a serious psychotic episode. The trust admitted negligence in respect of her psychiatric care. The issue to be determined was whether EH could recover damages, in her own right, for losses she claimed to have suffered. Facts: EH was born in 1971 and began experiencing mental health problems […]