Category Archives: Public law
‘Law’s Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law’
David A Dana, ‘Public Nuisance Law: When Politics Fail’ (May 26, 2021), available at SSRN. Public nuisance is in the news again. Three important opioid cases have been recently decided. In November plaintiffs lost a bench trial in California state court, and eight days later, the Oklahoma Supreme Court reversed a $465 million trial verdict, […]
Erika Chamberlain, ‘Francis v Ontario: Can The Crown Restore Its Own Immunity?’
“In Francis v Ontario, the Court of Appeal for Ontario had its first opportunity to weigh in on the Ontario Crown Liability and Proceedings Act, 2019 [CLPA]. The Act, which was introduced as part of an omnibus bill, purports to expand the scope of Crown immunity in tort to include not just policy decisions but […]
Paul Craig, ‘The EU, the Member States and Damages Liability’
ABSTRACT It is instructive to return to fundamentals when thinking about EU damages liability and state liability in damages for breach of EU law. The evolution of the case law is especially interesting given that the Court was working from something akin to a tabula rasa in both instances. Article 215 EEC gave the ECJ […]
‘IRAL’s Missing Remedy: Compensation for Unlawfulness’
“The current blog post considers the failure of the current judicial review reform process, from IRAL onwards, to give proper consideration to compensation for unlawful government acts. This has been less discussed than the discretion over the temporal effect of quashing orders (which I considered here). It may be that the Realpolitik of this omission […]
Matthew Hoyle, ‘Splitting the difference: Surrey CC v NHS Lincolnshire Clinical Commissioning Group and contribution between public bodies’
“What happens when one public body pays for a service that ought to have been provided by another? That was the question facing Thornton J in Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB); [2021] 2 WLR 805. Her judgment shows that 30 years after the ‘swaps’ cases, public law […]
Kumaralingam Amirthalingam, ‘Public prosecutors and the tort of misfeasance’
“The Canadian Supreme Court decision in Ontario v Clark, 2021 SCC 18 on prosecutorial immunity against civil claims for misfeasance in public office should be of interest to English lawyers. Canada and England share similar traditions in public prosecution, and their jurisprudence on tort liability of prosecutors has developed in tandem. Public prosecutors exercise considerable […]
‘Crown Immunity Means Tough Luck for the Police: A Good Call?’
“In Ontario (Attorney General) v Clark (‘Clark’), the majority (8 judges) of the Supreme Court of Canada held that Crown immunity precludes claims based on misfeasance in public office. Justice Côté dissented. Here I consider the policy underpinnings and ramifications of the two opinions. Clark addressed only the question of whether the claim at issue, […]
Dmitriy Ivanov, ‘Compensation for Harm Caused by Crimes: Foreign Experience and Modern Legal Structures’
ABSTRACT in this article, the author conducts a comparative analysis of various approaches to compensation for harm caused by crimes in the legislation of a number of foreign states. Compensation for harm to persons who have become victims of criminal acts is not unreasonably raised by the world community in a number of global and […]
Daly and Davis, ‘Money justice’
ABSTRACT Money justice – defined as money offered and paid to victims in the aftermath of wrongs – permeates society and everyday life. Current mechanisms of money justice are civil justice awards or out-of-court settlements for personal or cultural injury; redress programs or schemes for mass atrocities, political repression, historical injustice, and institutional abuse; and […]
Roth and Bambauer, ‘From Damage Caps to Decarceration: Extending Tort Law Safeguards to Criminal Sentencing’
ABSTRACT The Supreme Court has recognized a civil defendant’s substantive due process right not to be subject to grossly excessive punitive damage awards. Such awards – even if furthering legitimate state interests in retribution and deterrence – must not be grossly disproportionate to the compensatory damages reflecting the actual harm suffered by the plaintiffs. More […]