Category Archives: Public law
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 […]
Leonard Brahin, ‘Contract Rights after Lochner: The Clause that Time Forgot’
ABSTRACT The Contract Clause occupies a unique position in our constitutional jurisprudence. Its language sweeps broadly and the Marshall Court used it like a bludgeon to limit the power of overzealous state governments. But much has changed since the Founding. The end of the Lochner era rendered the Contract Clause all but a dead letter. […]
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 […]