Category Archives: Public law
Leow and Liau, ‘A Comparative Common Law Study on Restitution from the State’
ABSTRACT When should restitution from the State be available? The jurisdictions examined in this paper – England, Canada, Australia – once gave a common answer to this question, but they no longer do, for reasons concerning both these jurisdictions’ constitutional and unjust enrichment laws. The aim of this article is to provide an account of […]
D’Onfro and Epps, ‘Constitutional Rights and General Private Law’
ABSTRACT Public and private law are treated as doctrinally siloed opposites. But the two are surprisingly interrelated in the arena of constitutional rights. Courts must define, for constitutional purposes, various private law entitlements: what interests constitute property, when a contract has been made, and when government conduct constitutes the tort of trespass, among other pervasive […]
Tarunabh Khaitan, ‘Authorial and Authorised Purposiveness: Natural Persons, Organised Agents, and the Public-Private Debate’
ABSTRACT Liberal law rests on a familiar contrast: private persons may do whatever law does not forbid, whereas public bodies must justify action as authorised by positive law. Through legal ‘personhood’, this agentive public-private divide extends a presumption of autonomy-and the fundamental rights expressing it-to most non-state legal persons, including companies, charities, trade unions, political […]
Russell Korobkin, ‘Contract Boilerplate and Constitutional Public Policy’
ABSTRACT The modern economy is awash in standard form contracts filled with ‘boilerplate’ terms that are drafted by repeat players and routinely accepted by consumers, employees, and businesses without reading or understanding their content. Standard form contracts weaken but do not subvert party autonomy but they do undermine contract efficiency. While American courts attempt to […]
Joanna Schwartz, ‘Police Indemnification Reexamined’
ABSTRACT From 2006-2011, in forty-four large jurisdictions across the country, plaintiffs were awarded more than $735 million to resolve approximately 9225 police misconduct lawsuits. Law enforcement officers contributed to just 0.41% of settlements and judgments in these cases, and their contributions amounted to just 0.02% of the money paid. Officers did not pay even when […]
Catherine Sharkey, ‘Tort Law in the Age of Regulations’
ABSTRACT Tort law’s role as an information-sharing and enforcement mechanism in the age of regulations can serve as a critical supplement or complement to federal regulatory schemes. Public nuisance, perhaps the quintessential modern regulatory tort, provides fertile ground for consideration of the role of tort law in the age of regulations. In order to analyze […]
Samuel Beswick, ‘The Police Officer’s Right of Redress’
ABSTRACT Should a police officer be able to sue a citizen in tort for harming them? On one view of the theory and practice of private law, they should not. According to this view, a police officer as a public agent is not juridically comparable to a private person and so their interactions with other […]
Peter Bo Zhang, ‘Constructive Scienter: An Animal-Law Answer to the AI Responsibility Gap’
ABSTRACT This article recovers an overlooked common law doctrine, the scienter action’s heightened liability for the keeper of a dangerous animal, and brings it to bear on the opaque algorithmic systems through which the state now makes consequential decisions about individuals. It argues that the less a public body can explain a coercive decision, the […]
I Bennett Capers, ‘We, The Watchers’
ABSTRACT A man’s home is his castle, the expression goes. It is a place where he can retreat from intrusion or prying eyes, including from the state, at least without a warrant or extenuating circumstances. At least this is what we tell ourselves. This Essay shows the falsity of this belief. A man’s home may […]
Alicia Solow-Niederman, ‘Clickwrap Accountability’
ABSTRACT Picture a public-facing generative AI chatbot on a government website that can answer questions about benefits eligibility. Systems like these expose a sociotechnical-legal divide: they route around the standard due process framework, because there has been no formal government determination, yet they induce reliance from users, above and beyond past rounds of automated legal […]