Category Archives: Public law
Mark Geistfeld, ‘The Tort Entitlement to Physical Security as the Distributive Basis for Environmental, Health, and Safety Regulations’
Abstract: In a wide variety of contexts, individuals face a risk of being physically harmed by the conduct of others in the community. The extent to which the government protects individuals from such harmful behavior largely depends on the combined effect of administrative regulation, criminal law, and tort law. Unless these different departments are coordinated, […]
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 […]
Shaakirrah Sanders, ‘Lochnerian Values, Mandatory Compensatory Damage Caps, and Lessons from the Sixth Amendment Jury Trial Clause’
Abstract: … This Article investigates whether mandatory caps on compensatory damage awards impact the Court’s Lochner-based due process reasonableness review of punitive damages. This Article discusses whether legislatively imposed mandatory caps encroach on the civil jury trial right, which in all states finds its interpretative basis in the English common law. This Article maintains that […]
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 […]
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 […]
Adam Zimmerman, ‘The Corrective Justice State’
Abstract: Prosecutors, federal agencies, state attorneys general, and other officers in the executive branch often shape national policy through large monetary settlements with corporations. But the debate over this kind of “regulation by deal” has changed dramatically over the past decade. Although commentators once questioned whether such settlements made for good policy or exceeded officials’ […]
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