Category Archives: Public policy
Baffi and Parisi, ‘The Double Edge of Freedom of Contract’
ABSTRACT Standard economic reasoning suggests that expanding an individual’s choice set cannot reduce welfare because additional options may always be ignored. This intuition underlies the traditional economic justification for freedom of contract. This paper shows that the monotonic relationship between choice and welfare may break down in bargaining environments characterized by asymmetric bilateral monopoly and […]
Rzewuski and Rzewuska, ‘The public policy exception as grounds for refusing to recognize or enforce foreign court judgments in succession cases’
ABSTRACT The number of cross-border civil proceedings is on the rise and is likely to increase in the future. The above also applies to succession law regulating the statutory order of succession. Therefore, national courts adjudicating a succession case have to be familiar with and respect foreign laws indicated by the appropriate conflict-of-law rule. Significant […]
Kwan Yiu Cheng, ‘Invalidating Civil Juristic Acts: Public Order and Good Morals in the Chinese Civil Code’
ABSTRACT This article discusses the concepts of public order and good morals in the Chinese Civil Code. Under Article 153 of the Civil Code, a civil juristic act is rendered void if it violates these concepts. This article examines their substance, functions, and practical significance in determining the invalidity of civil juristic acts in Chinese […]
Greg Bowley, ‘The Public Limits of Private Justice: An Account of the Doctrine of Public Policy in Contract’
ABSTRACT The common law doctrine of public policy remains poorly defined. It has been invoked to produce outcomes distinct from what conventional doctrine would require, but no consensus exists as to the purposes it serves, the factors justifying its intervention, or even the manner of its operation. This paper argues that the best understanding of […]
Jane Thomson, ‘Public Order and Capricious Wills in Quebec: Some Important Lessons for the Rest of Canada’
ABSTRACT Quebec is a leader when it comes to avoiding testamentary conditions that perpetuate discrimination. It has held this a position for over a century, with its public order decisions long pre-dating famous common law cases hailed as firsts in this area of the law. Some might balk at the idea of citing Quebec jurisprudence […]
Jane Thomson, ‘“And Two Cows to my Wife … so Long as she Remains my Widow”: Public Policy and Testamentary Marriage Clauses in Canada’
ABSTRACT This article, part one of a two part project, provides a comprehensive review of the law surrounding marriage conditions in wills in Canada, including the civil law jurisdiction of Quebec, through a quantitative study of nearly every electronically reported Canadian decision involving a marriage clause in a will. It begins with an overview of […]
Marie-Louise Holle, ‘Commodification of human remains: Public policy in contract law – and beyond’
ABSTRACT Although human remains have long been regarded as worthy of legal protection, they are increasingly treated as commodities. The trade in human remains via the internet, their display within religious institutions such as the Roman Catholic Church, and their use in commercial plastination exhibitions illustrate distinct forms of commodification. The manuscript aims to examine […]
Zuzanna Nowicka, ‘SLAPP vs Mutual Trust: Protecting the Public Debate Through Public Policy Considerations’
ABSTRACT This Article argues that to protect public debate, which is vital for democratic societies, it is crucial for courts in EU Member States to apply the freedom of expression standards established by the European Court of Human Rights (ECtHR) when adjudicating cases, particularly in the context of Strategic Lawsuits Against Public Participation (SLAPPs). The […]
Rzewuski and Rzewuska, ‘The public policy exception as grounds for refusing to apply foreign law in succession cases’
ABSTRACT Increasing migration flows in Europe and the world will contribute to a rise in cross-border succession proceedings. As a result, when hearing a succession case, a domestic court should not only be familiar with, but should also apply the foreign law indicated by an authoritative conflict-of-law rule in the same manner that the foreign […]
Dagan and Gergen, ‘Harnessing the Unruly Horse: Public Policy in Contract Law’
ABSTRACT It is blackletter law that agreements or terms which violate public policy are unenforceable. But the precise role of the public policy in contract law remains elusive, which may explain the chaotic state of this veteran doctrine. Without a principled framework to guide judges in deciding when the law should refuse to lend its […]