Category Archives: Public law
Cortney Lollar, ‘What Is Criminal Restitution?’
Abstract: A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore no longer serves its traditional purpose of disgorging a […]
Joanna Schwartz, ‘Police Indemnification’
Abstract: This Article empirically examines an issue central to judicial and scholarly debate about civil rights damages actions: whether law enforcement officials are financially responsible for settlements and judgments in police misconduct cases. The Supreme Court has long assumed that law enforcement officers must personally satisfy settlements and judgments, and has limited individual and government […]
Greg Weeks, ‘The Public Law of Restitution’
Abstract: Restitution as the response to unjust enrichment has been available for a long time. As a body of law, it has mainly related to transactions between private entities. The decision of the House of Lords in Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 changed the law of restitution as it […]
Linda Mullenix, ‘Competing Values: Preserving Litigant Autonomy in an Age of Collective Redress’
Abstract: In one of the most famous law review articles ever written, The Role of the Judge in Public Law Litigation, Professor Abram Chayes in 1976 described a paradigm shift away from bipolar traditional litigation to a new model of public law litigation. Embedded in the traditional model was a deeply-held notion of litigant autonomy […]
Just published: Private Law: Key Encounters with Public Law (Barker and Jensen eds)
The relationship between private and public law has long been the focus of critical attention, but recent years have seen the growing influence upon private law of statutory intervention, public regulation, corporate globalisation and constitutional and international human rights norms. Such developments increasingly call into question the capacity of private law reasoning to operate in […]
Catherine Sharkey, ‘Tort as Backstop to Regulation in the Face of Uncertainty’
“Thomas Merrill & David Schizer, The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy, Columbia Law and Economics Working Paper No. 440 (2013). Thomas Merril and David Schizer — a property law theorist and tax law expert — deliver an ostensibly new framework for analyzing tort liability-regulation tradeoffs, standing on […]
Elizabeth Chamblee Burch, ‘Revisiting the Government as Plaintiff’
Abstract: This is a symposium essay dedicated to the late Richard Nagareda and written in response to Adam S. Zimmerman’s piece, The Corrective Justice State. Burch, Elizabeth Chamblee, Revisiting the Government as Plaintiff (December 1, 2013). 5 Journal of Tort Law (2014), Forthcoming. First posted 2013-12-03 07:38:41
David Super, ‘A New New Property’
Abstract: Charles Reich’s visionary 1964 article, The New Property, paved the way for a revolution in procedural due process. It did not, however, accomplish Reich’s primary stated goal: providing those dependent on government assistance the same security that property rights long have offered owners of real property. As Reich himself predicted, procedural rights have proven […]
Police Don’t Pay
“Joanna C Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. ___ (forthcoming 2014) … Professor Schwartz’s data yield a stark finding: police officers are virtually always indemnified. Officers contributed to judgments in just 0.44% of the 8600 civil rights settlements and judgments to plaintiffs, and their contributions amounted to a mere 0.02% of the $760 million that states, […]
Matthew Dyson, ‘Tort and Crime’
Abstract: This chapter will set out how the distinction and relationship between tort and crime can be examined comparatively. To do so it gives a framework to prime investigations and to facilitate comparison. It builds on three interfaces of tort and crime: where, how, why they connect. Progressing through these interfaces builds up layers towards […]