Category Archives: Public law
Clopton and Shoked, ‘Suing Cities’
ABSTRACT Our biggest social problems tend to manifest themselves in small ways-on the streets where they affect people’s daily lives. Local governments, who govern the streets and thereby are closest to the people, often find themselves on the front lines of combatting those problems. Accordingly, local governments are now promoting reforms to address climate change […]
Matteo Godi, ‘Section 1983: A Strict Liability Statutory Tort’
ABSTRACT Scholars have traditionally framed Section 1983 as a ‘constitutional tort’, and they have recently devoted much attention to critiquing one side effect of that constitutional rhetoric: the doctrine of qualified immunity. That approach misses a more fundamental issue: the transformation of Section 1983 into a fault-based tort. Through textual and historical analysis, as well […]
Katharine Jackson, ‘Public and Private Fiduciaries: Agents, Trustees, and the Politics of Acting for Others’
ABSTRACT Over the past decade, political and legal theorists began conscripting private fiduciary law to help delimit and define the duties of public officials. While enlisting additional legal prophylactics against arbitrary government may have appeared especially appealing during a Trump administration characterized by corruption and racism, this Article argues that straightforwardly applying fiduciary doctrine to […]
Noah Austin, ‘Resolving Land Use Conflicts Without Zoning’
ABSTRACT This Note presumes the rise of mixed-use development, upzoning, and other deregulatory zoning schemes. It sets aside the question of whether the costs of exclusionary zoning outweigh its benefits to society. And it characterizes the return-of-nuisance problem as something to be mitigated while pursuing land use deregulation, not as a cause for slowing that […]
Alan Brener, ‘Policymaking and the Trade Description Act 1968: cultural success and legal failure’
ABSTRACT Many UK tourists started to go on packaged holidays to the Mediterranean in the 1960s. The boom in these types of holidays, sometimes arranged by slightly piratical entrepreneurs, produced many customer complaints both to the press and MPs. As part of a move to bring some order to this chaos the new Labour government […]
Lauren Roth, ‘The Fiduciary Game’
ABSTRACT Fiduciary duties are supposed to bridge the gap between public and private law. Private actors who engage in ‘public or quasi-public’ functions (eg, corporate directors and pension administrators) are often subject to fiduciary constraints to protect vulnerable parties who lack power in relationships with these actors. Recently, scholars have argued that both courts and […]
Rachael Walsh, ‘Common Good Constitutionalism and the Individual – A Property Perspective’
ABSTRACT This paper probes the position of the individual, and of their interests and rights, within a common good constitutionalism framework. To do so, it draws on long-running debates within property law and theory concerning the relative priority to be afforded to the individual and to the common good, with many of the concerns of […]
Shelley Welton, ‘The Public-Private Blur in Clean Energy Siting’
INTRODUCTION The consensus is increasingly clear: to stave off catastrophic climate change requires a massive and rapid transition from fossil fuels to clean energy. This consensus is now reflected in the laws and policies of numerous countries, states and other sub-jurisdictions, many of which have established ambitious ‘100 per cent clean energy’ targets. Hitting these […]
Graham Mayeda, ‘The Continuity of Private and Public Law Reasoning in Chief Justice McLachlin’s Criminal Law Judgments’
ABSTRACT Theorists and public law jurists frequently separate public and private law and ascribe to each area a unique form of reasoning. Public lawyers tend to consider the law to be the deployment of public law values – broad principles that can be found in constitutions, both written and unwritten. Private lawyers tend to view […]
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 […]