Private Law Theory

ABSTRACT
This article explores the relationship between tort law and public law as legal categories. The principal argument of the article is that certain aspects of modern tort law are best understood as falling within public law, rather than private law. I begin my analysis with the two tort doctrines that seem to me most clearly to fall within public law, namely the tort of misfeasance in public office and the availability of exemplary damages in cases of oppressive, arbitrary or unconstitutional action by servants of the government. I then go on to look at a more ambivalent doctrine, the tort of malicious prosecution. Finally, I consider the implications of conceiving of these various doctrines as part and parcel of public law, rather than private law. It follows from my analysis that there is no clear boundary between ‘tort law’ and ‘public law’, but rather a degree of overlap between the two categories. There are lessons here for both private lawyers and public lawyers. The lesson for private lawyers is that attempts to reconcile these doctrines with general private law principles are misguided. The lesson for public lawyers is that closer examination of these doctrines may further understanding of the nature and purposes of public law.

Nolan, Donal, Tort and Public Law: Overlapping Categories? (April 1, 2019). (2019) 135 Law Quarterly Review 272-293.

First posted 2020-10-21 18:10:07