Category Archives: Public law
Boaz Segal, ‘Utilizing Tort Law to Deter Misconduct in the Public Sector’
ABSTRACT This article analyzes tort law’s ability to effectively guide the actions of public officials and agencies and proposes separating tort judgments into two components: the imposition of accountability and the imposition of liability. This separation leads, in turn, to the conclusion that it is sufficient to impose accountability – and to label the public […]
David Foxton, ‘Public law illegality in private law claims: some recent developments’
“Professor Dicey took pride in the fact that English law knew no ‘droit administratif’, suggesting that ‘in England, and in countries which, like the United States, derive their civilization from English sources, the system of administrative law, and the very principles upon which it rests, are in truth unknown’. Dicey was particularly exercised by the […]
Gregory Sisk, ‘Recovering the Tort Remedy for Federal Official Wrongdoing’
ABSTRACT As the Supreme Court weakens the Bivens constitutional tort cause of action and federal officers avoid liability for unlawful behavior through qualified immunity, we should recollect the merit of the common-law tort remedy for holding the federal government accountable for official wrongdoing. For more than a century after ratification of the Constitution, federal officers […]
Cristina Carmody Tilley, ‘Private Law, Public Law, and the Production of American Virtue’
INTRODUCTION … This Essay suggests that the time has come to revitalize private law – tort law, in particular – as an engine of national virtue. The groundswell of activism in the summer of 2020 lends itself to particularizing this argument to the virtue of racial justice, but it is equally applicable to gender justice, […]
Ellen Rock, ‘Brett Cattle: a New Lease on Life for Misfeasance?’
ABSTRACT Conventional wisdom has it that a plaintiff rarely succeeds in making out the tort of misfeasance in public office – it is a cause of action that is more relevant in theory than in practice. The recent case of Brett Cattle Company Pty Ltd v Minister for Agriculture offers us a rare glimpse into […]
‘Covid-19 and False Imprisonment’
“The Cambridge Private Law Centre last week hosted its annual Freshfields lecture. Lord Sumption addressed us on ‘Government by decree — Covid-19 and the Constitution’. This lecture has received considerable media attention and already been mentioned on this blog. (A link to the lecture and a transcript is here.) One of Lord Sumption’s major claims […]
Donal Nolan, ‘Tort and Public Law: Overlapping Categories?’
ABSTRACT This article explores the relationship between tort law and public law as legal categories. The principal argument of the article is that certain aspects of modern tort law are best understood as falling within public law, rather than private law. I begin my analysis with the two tort doctrines that seem to me most […]
Gabrielle Holly, ‘Challenges to Australia’s Offshore Detention Regime and the Limits of Strategic Tort Litigation’
ABSTRACT Australia’s offshore detention regime has been the subject of numerous attempts to seek accountability for harm caused to detainees using legal and other avenues in Australia. This Article examines recent strategic litigation actions against the Australian government and the corporate contractors engaged in offshore detention, including: Kamasaee v Commonwealth; AUB19 v Commonwealth; and actions […]
Anatoliy Kostruba, ‘Methodological Basis of Legal Personality of the State (Civil Aspects)’
ABSTRACT Article deals with the investigation the legal nature of the state. It was found that the state is the allied unity of settled people provided with primary power of primacy. The essence of the state lies in creation of conditions for the development of the civil society, implementation of shared interests of members of […]
Ellen Rock, ‘Misfeasance in Public Office: A Tort in Tension’
ABSTRACT The rationale for the tort of misfeasance in public office remains the subject of academic speculation. This article adopts the concept of accountability as the tort’s guiding rationale, analysing it within the accountability framework: who is accountable to whom, for what, and how? Within this framework, it is possible to identify various points of […]