Category Archives: Public law
Kit Barker, ‘Modelling Public and Private Enforcement: The Rationality of Hybridity’
Abstract This article models the circumstances in which hybrid public and private enforcement systems exist in both public and private law. Although public law is normally enforced publicly and private law privately, there are a number of notable departures from this pattern – of which competition law provides one example – in which the law […]
‘Do Civil Rights Remedies Deter Police Misconduct?’
John Rappaport, How Private Insurers Regulate Public Police, 130 Harvard Law Review 1539 (2017). Constitutional tort remedies, like their common law counterparts, are presumed to deter future violations. But the inference of deterrence depends, of course, on a number of sub-inferences that may not hold. For example, deterrence may not obtain if the officer is […]
Leah Litman, ‘Remedial Convergence and Collapse’
Abstract This Article describes and interrogates a phenomena of spillovers across remedies – how the legal standards governing the availability of remedies in cases regarding executive violations of individuals’ constitutional rights, particularly in the area of policing, have converged around similar ideas that narrow the availability of several different remedies. A similar set of limits […]
Donal Nolan, ‘A Public Law Tort: Understanding Misfeasance in Public Office’
Abstract This chapter provides a theoretical analysis of the tort of misfeasance in public office. The current vitality of the tort is attested to by the frequency with which it appears in the law reports, and by the spirited opposition which met a (subsequently abandoned) proposal by the Law Commission of England and Wales that […]
William Goldstein, ‘Standing, Legal Injury Without Harm, and the Public/Private Divide’
Abstract Legal injury without harm is a common phenomenon in the law. Historically, legal injury without harm was actionable for at least nominal damages, and sometimes other remedies. The same is true today of many ‘traditional’ private rights, for which standing is uncontroversial. Novel statutory claims, on the other hand, routinely face justiciability challenges: Defendants […]
Jason Varuhas, ‘Taxonomy and Public Law’
Abstract: This paper (i) identifies the reasons for the general absence of legal taxonomy in public law scholarship; (ii) argues that legal taxonomy and taxonomic debate is vital to the principled development of public law and rigorous legal analysis, and is of acute importance today given trends towards open-ended balancing in public law adjudication which […]
Cody Jacobs, ‘The Second Amendment and Private Law’
Abstract: The Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play – if any – when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law – specifically, the law […]
Shai Stern, ‘Remodeling Just Compensation: Applying Restorative Justice to Takings Law Doctrine’
Abstract: Compensation for expropriation in most western jurisdictions aims to provide justice. Yet, while this quest for justice is inherent in expropriation laws, they nevertheless say little, if any, about the underlying conception of justice or how justice should be pursued. A closer examination of courts’ judgments, as well as scholarly discourse on the quest […]
Eleanor Lumsden, ‘How Much Is Police Brutality Costing America?’
Abstract: The criminal law of the United States fails to stop the unlawful killing of minorities by law enforcement. In fact, it was never meant to do so. Civil tort law is also unequal to the task. The consequences of not correcting these legal failures are far-reaching for the United States and for our neighbors, […]
Huq and Lakier, ‘The Triumph of Fault in Public Law’
Abstract: Federal criminal law and constitutional remedies might seem distinct bodies of law. In the closing decades of the twentieth century, however, parallel transformations swept both domains. In each field, the Supreme Court demonstrated increasing unwillingness to impose individualized legal consequences simply because a defendant committed the discrete acts that comprised a crime or constitutional […]