Category Archives: Public law
Dan Priel, ‘The Indirect Influence of Politics on Tort Liability of Public Authorities in English Law’
Abstract: The scope of negligence liability of public authorities in English law has undergone significant changes in the Post-World War II period, first expanding and then, from the mid-1980s, retracting. This article tries to explain why this happened not by focusing, as is common in most commentary on this area of law, on changing doctrinal […]
Michael Wells, ‘From Compensation to Vindication in Constitutional Tort Law’
Abstract: This article examines some basic normative issues in constitutional tort law: What is the point of litigation seeking damages for violation of one’s constitutional rights? Is the primary aim to deter violations by imposing liability on violators? Is it to compensate persons for harm done by constitutional violations? Or is it to vindicate rights […]
Jonathan Marcantel, ‘Abolishing Implied Private Rights of Action’
Abstract: For nearly a century, jurists and scholars have attempted to generate a normatively justifiable, generally applicable mechanism to evaluate implied rights of action. Yet, in each instance, the existence of the Doctrine has been presumed. Thus, in each instance, jurists and scholars have — at least implicitly — presumed that the Doctrine provides some […]
Stephen Munzer, ‘How to Integrate Administrative Law and Tort Law: The Regulation of Stem Cell Products’
Abstract: This article offers a proposal for the regulation of stem cell products by the Food and Drug Administration (“FDA”) that corresponds to a specialized product liability scheme. It shows how product liability and administrative law can be successfully integrated to create a comprehensive legal and regulatory system that will promote the safety and efficiency […]
Jasminka Kalajdzic, ‘Public Goals by Private Means, and Public Actors Protecting Private Interests: A Response to Professor Jones’
Abstract: In his thoughtful paper on the relative advantages and deficiencies of private and public enforcement mechanisms for improving consumer protection, Craig Jones forces us to ask a fundamental question about our choice of legal tools: under what circumstances, if ever, should reliance be placed on public regulatory bodies, and when should the protection of […]
Victoria Duke, ‘A Silk Purse Does Not Come From a Sow’s Ear: Non-Class Aggregate Settlements Based on Public Law Erode the Model of Private Law Remedies’
“… This Article not only offers a solution to prevent public remedies from carrying over into private litigation, but it also explains why a solution is required to protect individuals from unfair and improper redress of claims. Part II reconciles the nuances between private law and public law. Through this recognition, it becomes evident that […]
John C Jeffries Jr, ‘The Liability Rule for Constitutional Torts’
Abstract: There is no liability rule for constitutional torts. There are, rather, several different liability rules, ranging from absolute immunity at one extreme to absolute liability at the other. States and state agencies are absolutely immune from damages liability for violations of constitutional rights, no matter how egregious their conduct may be. The same is […]
Tobias Lock, ‘Is Private Enforcement of EU Law Through State Liability a Myth? – An Assessment 20 Years after Francovich‘
Abstract: This paper article assesses the success of Member State liability as a tool for the private enforcement of European Union law. The argument made is that Member State liability, first established 20 years ago in Francovich, is not a suitable and reliable mechanism to compensate for the weaknesses of public enforcement. The article presents […]
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 […]