Category Archives: Public law
Rebecca Stone, ‘Who are the Bearers of Tort Law’s Duties?’
ABSTRACT Like corrective justice theorists, Gregory Keating contends that tort law is centrally concerned with the vindication of individual rights. Like economic theorists, he rejects the idea that individual injurers are the inevitable site of tort duties. While some tort doctrines instantiate relational rights and duties, others instantiate collective duties to potential victims. There is […]
Sarah Swan, ‘Public Duties for the New City’
ABSTRACT The first job of a government is to protect its people, and, in the United States, the government ostensibly performs this job through the police. But policing in America is deeply dysfunctional, as the police not only provide inadequate protection from violent crime, but simultaneously engage in outright acts of brutality against the citizenry. […]
Vidir Petersen, ‘Constitutional Property Law’
ABSTRACT If the idea of ownership was ever the “sole and despotic dominion” over property, it has been significantly reshaped over the past decades. Indeed, private property is not unfamiliar with adapting to regulations that respond to important public interest and welfare concerns. Examples include land-use controls and the rise of environmental regulations in the […]
Emile Zitzke, ‘Justice Froneman and Transformative Delict’
ABSTRACT In this article the Constitutional Court judgments of Justice Johan Froneman are analysed with the aim of assessing his contribution to the South African law of delict. It is argued that traditional delict scholarship in South Africa is common-law centric in the sense that the common-law rules and principles that regulate the discipline are […]
James McGovern, ‘The “bundle of rights” theory of property: an Irish constitutional solution to a universal conceptual problem?’
ABSTRACT The Irish Constitution’s wording on property rights does not suggest how property should be conceptualised in Irish constitutional jurisprudence while the case law shows that significant conceptual confusion has arisen in this area. This article engages with how certain theories of property conceptualise property and applies them in an Irish context. The article concludes […]
Peter Kutner, ‘Defamation of Governments and Government Enterprises’
ABSTRACT This article examines the law on whether a governmental body or a commercial enterprise owned by a government can maintain an action for defamation. It is now widely accepted that a government cannot sue for defamation. But this is not a unanimous view. The extent to which the bar to governmental defamation actions applies […]
Marie-France Fortin, ‘Introduction to The King Can Do No Wrong – Constitutional Fundamentals, Common Law History, and Crown Liability’
ABSTRACT ‘The king can do no wrong’ remains one of the most fundamental yet misunderstood tenets of the common law tradition. Confusion over the phrase’s historical origins and differing meanings has had serious consequences, making it easier for the state to escape liability for the harm caused to individuals by governmental officials or institutions. This […]
Antonia Layard, ‘Public (Trust) Rights in Open Space: Day v Shropshire Council’
ABSTRACT In Day v Shropshire Council (Day), the Supreme Court considered the effect of a statutory trust under section 10 of the Open Spaces Act 1906 on a subsequent purchaser. Finding for the claimant, a local resident resisting development, the Supreme Court unanimously held that the local authority’s failure to give notice and consider objections […]
‘Government Contracts, Algorithms, and the Benefits of Trial and Error’
Cary Coglianese and Erik Lampmann, ‘Contracting for Algorithmic Accountability’, 6 Administrative Law Review Accord 175 (2021). Algorithmic accountability is a pressing contemporary issue. Machine learning algorithms – also known as artificial intelligence (AI) – are used in decision-making by state and federal agencies, as well as in the private sector. The decisional outcomes from AI […]
Emile Zitzke, ‘Transformative Legal History and the (Re)Classification of the South African Law of Delict’
ABSTRACT The South African law of delict is traditionally classified as a private-law discipline. This classification is usually made with reference to the actor, power and interest theories. According to the actor theory, private law regulates disputes between non-state actors inter se while public law regulates disputes involving the state. The power theory maintains that […]