Category Archives: Public law
James Pfander, ‘Constitutional Torts and the War on Terror’
Abstract: This book explores the response of the federal courts to Bivens claims brought to secure remedies for torture and other human rights abuses that were committed in connection with the Bush Administration’s war on terror. It finds that such claims have been almost universally rejected, on one basis or another. Indeed, while some claims […]
Anna Holmes, ‘Will Australia Courts Move To A Caribbean Beat? The Question Of A State’s Standing To Sue In The Tort Of Misfeasance In Public Office’
Abstract: It is unclear whether an Australian body politic could ever gain standing to sue in the tort of misfeasance in public office. Throughout the common law world, the question of a state’s standing to sue in the tort has only arisen for judicial determination in the State of Belize. The Caribbean Court of Justice […]
Ronit Levine-Schnur, ‘Private Property and Public Power in the Occupied West Bank’
Abstract: Does an Occupying Power have a duty to protect private property rights of protected persons against acts of its own citizens? What is the extent of such a duty? This paper argues that under belligerent occupation, land disputes between individuals of both sides of the conflict are not a private matter even if the […]
Charles Mitchell, ‘Restitutionary Claims by Indirect Taxpayers’
Abstract: The paper discusses the first instance judgment in Investment Trust Companies (in liq) v HMRC [2012] STC 1150, an English case on the recovery of overpaid VAT, not by the service provider which accounted for and paid the tax, but by the customer which ultimately bore the economic burden of paying for it. The […]
Charles Mitchell, ‘Recovery of Overpaid Tax Under English Law’
Abstract: The paper discusses the impact on the English law of unjust enrichment of a series of class actions in the 2000s and 2010s to recover money paid as tax under sections of the UK tax legislation that were found to have been contrary to EU law. Mitchell, Charles, Recovery of Overpaid Tax Under English […]
Joanna Schwartz, ‘How Governments Pay: Lawsuits, Budgets, and Police Reform’
Abstract: For decades, scholars have debated the extent to which financial sanctions cause government officials to improve their conduct. Yet little attention has been paid to a foundational empirical question underlying these debates: When a plaintiff recovers in a damages action against the government, who foots the bill? In prior work, I found that individual […]
Myles McLellan, ‘Innocence Compensation: Private Law Principles for Public Law Remedies’
Abstract: As challenging as it is for an innocent person accused of a crime to be successfully exonerated, the pursuit of compensation to redress the harm caused by that accusation is an entirely new yet continuing burden. Notwithstanding the State’s error or in the investigation and prosecution that wrongly caused damage, there are substantial hurdles […]
Hunter Bruton, ‘The Questionable Constitutionality of Curtailing Cuckolding: Alienation-of Affection and Criminal-Conversation Torts’
Abstract: What can you do if your husband or wife cheats on you? Go to a marriage counselor? Seek a divorce? Sue the marital interloper for millions of dollars in damages? The third option is still available in some states through actions euphemistically titled ‘alienation of affection’ and ‘criminal conversation’. This Note tackles their constitutionality […]
Dorfman and Harel, ‘Against Privatisation As Such’
Abstract: Privatisation has occupied the attention of theorists of different disciplines. Yet, despite the multiplicity of perspectives, the typical arguments concerning privatisation are instrumental, relying heavily on comparing the performance of a public functionary with that of its private counterpart. This article challenges this approach for leaving unaddressed other important consequences of shifting responsibilities to […]
Cortney Lollar, ‘Punitive Compensation’
Abstract: Criminal restitution is a core component of punishment. In its current form, this remedy rarely serves restitution’s traditional aim of disgorging a defendant’s ill-gotten gains. Instead, courts use this monetary award not only to compensate crime victims for intangible losses, but also to punish the defendant for the moral blameworthiness of her criminal action. […]