Category Archives: Public law
Gregory Sisk, ‘Immunity for Imaginary Policy in Tort Claims Against the Federal Government’
ABSTRACT Fictional policy justifications for official negligence are regularly accepted by the federal courts to shield the federal government from liability for ordinary tortious wrongdoing. The lower federal courts have adopted an extravagant interpretation of the discretionary function exception to the Federal Tort Claims Act that applies whenever a policy implication can be theorized. Under […]
Duncan Wallace, ‘The Reality of Shareholder Ownership: For-profit Corporations as Slaves’
ABSTRACT What is the relationship between shareholders and the corporation? The present scholarly consensus is that, whatever the relationship is, it is not one of owner and owned. This article contests that consensus. It argues that corporations are owned by their shareholders and, further, that corporations so-owned are slaves. In support of this contention, the […]
Jessica Hudson, ‘The Proper Purpose Rule: Preventing Law’s Intentional Abuse’
ABSTRACT The Bicentenary of the Supreme Court of New South Wales is an opportunity for reflection and celebration of 200 years of the continuity of the rule of law in New South Wales. In service to that ongoing commitment, this paper examines the equitable doctrine of fraud on a power, increasingly referred to as the […]
Silvie Rohr, ‘Corporate Purpose: A Management Concept and the Role of Contract Design’
ABSTRACT In light of systemic crises such as global warming and human rights violations in business operations, the call for reevaluating corporate conduct has become more pressing than ever. As these challenges intensify, a growing consensus advocates for a shift away from shareholder profit maximization towards a more holistic stakeholder governance model. Yet, the question […]
Susanna Kim Ripken, ‘Corporate Civil Disobedience’
ABSTRACT Classic theories of civil disobedience endorse the right of individuals to commit illegal acts to protest unjust laws and policies. Acts of civil disobedience have historically played a central role in exposing injustice and producing vital legal and social change. The literature on civil disobedience is vast; political and legal theorists have long recognized […]
Michael Law-Smith, ‘The Tort of Malicious Prosecution: A Principled Account’
ABSTRACT This article provides a justification for the often-criticized tort of malicious prosecution. It begins by discussing the Supreme Court of Canada’s malicious prosecution caselaw and by reconstructing the Court’s expressed policy-based account of the tort. This policy-based account raises three concerns: (1) it renders the malice standard arbitrary, (2) it fails to explain why […]
Ivy Tengge Xu, ‘Contractual Interpretation of the Standard of Review in International Commercial Arbitrations’
ABSTRACT The judicial review of arbitral awards bears an intuitive similarity to the review of administrative decisions. Despite their reluctance, Canadian courts have long used administrative law concepts and statutory interpretation to determine the standard of review when an arbitral award is challenged in court. This paper considers a novel alternative: contractual interpretation of the […]
Michael Wells, ‘Compensatory Damages and Dignitary Harm in the Upcoming Restatement of Constitutional Torts’
ABSTRACT A new Restatement of Constitutional Torts, just getting underway, and the Restatement (Third) Torts (Remedies) now in draft, provide an opportunity to revisit issues that have lain dormant for decades. In particular, federal courts typically require constitutional tort plaintiffs to prove physical or emotional harm in order to obtain damages. That doctrine deserves re […]
Sadie Mapstone, ‘The Fiduciary Duty of Combatting Global Climate Change’
ABSTRACT Ancient Roman Law codified the concept that there are certain resources that are so great and so important to human survival, that intuitively, no person should own them. Further, the government must protect these resources for the people. Today, this concept is known at the public trust doctrine. According to the contemporary doctrine, the […]
Robin Kundis Craig, ‘Just Add Water: The Muddy World of Private Property Rights in a Panarchal Reality’
ABSTRACT Advocates for private property rights tend to atomize real property, dividing land into individual parcels and, legally, ‘bundles of sticks’. Only a few common-law doctrines, such as nuisance, acknowledge the potential for activities on one real estate parcel to affect either other discrete parcels or the community as a whole. In the US Supreme […]