Dear Colleagues:
Those of you intrigued by Misfeasance in Public Office and
Rights-Based theories of tort law will be interested in an article
by ODGer John Murphy forthcoming in the OJLS entitled:
"Misfeasance in a Public Office: A Tort Law
Misfit?".
Here is the abstract:
This article explores the peculiarities of the
tort of misfeasance in a public office from the perspective of
two popular, contemporary theories of tort law: the rights-based
theory of Robert Stevens, and the corrective justice theory of
Ernest Weinrib. It identifies four significant problems of fit
for these theories: viz, the fact that this tort does not
protect a clearly defined private law right; the fact that its
touchstones of liability include concepts that are highly
unusual in tort law (such as malice, recklessness and bad
faith); the fact that it confounds the private/public law
dichotomy envisaged by both authors, and the fact that it is
both animated by, and makes ready use of, public policy
considerations. It is nonetheless argued that these apparent
oddities are not unique to this tort (each featuring elsewhere
in tort law) and that, therefore, misfeasance in a public office
is by no means as anomalous as these theories would lead us to
believe. Having established that it is not a theoretical
anomaly, the article goes on to suggest that this tort also
serves a discrete and vital role in holding public officers to
account thus rendering implausible any suggestion that it has
very little to commend it in practical terms, or that it ought
to be abolished.
Those interested in contract formation and comparative law will be
interested in
"Contract Formation and
Mistake in European Contract Law: A Genetic Comparison of
Transnational Model Rules" by Nils Jansen and Reinhard Zimmermann.
Here is the abstract:
The article examines how the rules on formation
of contract and on mistake, contained in the various
transnational model rules that have been published over the past
two decades, have taken shape. The approach adopted here is
based on an analysis of the ‘textual stratification’ of European
private law. The relevant instruments (Convention on Contracts
for the International Sale of Goods, Principles of European
Contract Law, UNIDROIT Principles of International Commercial
Contracts, Draft Common Frame of Reference, Principes
contractuels communs) are analysed and compared in their
historical sequence. To what extent and why have the texts been
transformed in the process? The article demonstrates that there
is a very considerable common ground reflecting the state of the
art of comparative research in these fields over the past
hundred years. It also highlights issues on which consensus must
still be reached and it suggests patterns towards reaching such
consensus. It is argued that the Principles of European Contract
Law, rather than the Draft Common Frame of Reference, should
provide the point of departure for future discussions. The scene
for the article is set by a critical examination of the concepts
of contract and legal act, as used in the Draft Common Frame of
Reference.
Both articles are available here:
http://ojls.oxfordjournals.org/content/early/recent.
All the best,
--
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435