Category Archives: Public law
John Crain, ‘The Constitutional Tort of Shielding Criminal Wrongdoers in Violation of the Equal Protection of the Laws’
ABSTRACT When it comes to the obligations of state prosecutors, the Fourteenth Amendment’s guarantee of ‘the equal protection of the laws’ does not mean that state governments must protect people equally. As a matter of constitutional interpretation this means that a prosecutor’s decision not to prosecute a criminal wrongdoer, no matter how benighted by prejudice, […]
Malcolm Rowe and Manish Oza, ‘Tort Claims Against Public Authorities’
ABSTRACT When interactions between modern states and their citizens result in harm to individuals, the legal system is called upon to provide redress. Holding public authorities liable in tort is one solution the common law has developed to compensate individuals for harm incurred through state action. This article highlights the role that tort law plays […]
Mark Leeming, ‘Justice Basten and the New Frontiers of Administrative Law: Crime, Tort and Contract’
ABSTRACT This appreciation of Justice Basten’s judicial and extra-judicial contribution to administrative law focuses upon three areas outside the mainstream: in crime, tort and contract. These areas of administrative law at the State level have seen considerable developments over the last two decades, coinciding with the intrusion of statute into areas traditionally regulated by common […]
Torrible, ‘Policing, citizenship and the civil courts: how increased settlement of civil claims has impacted police accountability’
ABSTRACT It is recognised that civil litigation has a place within the police accountability infrastructure. However, the role of actions against the police for wrongful arrest, false imprisonment, assault, and malicious prosecution (hereafter police actions) is underexplored. Taking citizenship as its analytical frame, this paper probes the relationship between police actions and the police complaints […]
Davies and Sales, ‘Controlling contract discretions: Wednesbury reasonableness, good faith and proper purposes’
INTRODUCTION It is common for a contract to confer a discretion upon one party. Sometimes the limits of that discretion will be explicitly stated in the agreement, but often the contract is silent. It can then be difficult to ascertain what, if any, controls upon the exercise of discretion exist. We suggest that any restrictions […]
Patricia Cain, ‘Taxation of Tort Damages’
ABSTRACT Under Section 104(a)(2) of the Internal Revenue Code, damages for personal injury can only be excluded from income in cases in which the plaintiff is physically injured. If the plaintiff instead suffers emotional distress from the injury, even if the distress is so great that it results in physical injury or physical sickness, then […]
Zamir Golestani, ‘Surrey County Council v NHS Lincolnshire Clinical Commissioning Group and the relationship between unjust enrichment and public bodies’
ABSTRACT In both tort and contract, the addition of a public body as a party to proceedings typically superimposes complex, policy-based considerations onto a given claim. This premise remains true in the context of a claim concerning restitution for unjust enrichment. The recent case of Surrey County Council v NHS Lincolnshire [2020] EWHC 3550 (QB) […]
‘Restitution and Reasonableness Review: Ontario Addiction Treatment Centres v Canada (Attorney General), 2022 FC 393′
“The application of the principles of restitution/unjust enrichment to overpayments of tax in Canada is in a muddled state. The problem arises where a taxpayer overpays on the basis of a mistake of law or a mistake of fact, a capacious set of categories which can include mistakes about the lawfulness or applicability of a […]
William Weinberg, ‘Tort: The Liberal Alternative to the Criminal Law’
CONCLUSION While the rise of liberalism has led to many advances in the justice and the rule of law that contribute to human flourishing, a fundamental flaw in the history of liberalism has been the failure to universally denounce the criminal law as an inherently illiberal institution. By abolishing the criminal law, and replacing it […]
Just Published: Taking Law Seriously – Essays in Honour of Peter Cane (Goudkamp, Lunney and McDonald eds)
James Goudkamp, Mark Lunney and Leighton McDonald, Taking Law Seriously – Essays in Honour of Peter Cane. Published 27 January 2022, 392pp. ISBN 9781509940721. Hart Publishing. 1. Tort Law Beyond the Forms of Action: Achieving the Goal of The Anatomy of Tort Law (Christine Beuermann) 2. Elements of Torts (James Goudkamp) 3. Culpability and Compensation […]