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Misfeasance in a Public Office: a Tort Law Misfit?

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Misfeasance in a Public Office: a Tort Law Misfit? / Murphy, John.
In: Oxford Journal of Legal Studies, Vol. 32, No. 1, 2012, p. 51-75.

Research output: Contribution to Journal/MagazineJournal articlepeer-review

Harvard

Murphy, J 2012, 'Misfeasance in a Public Office: a Tort Law Misfit?', Oxford Journal of Legal Studies, vol. 32, no. 1, pp. 51-75. https://doi.org/10.1093/ojls/gqr018

APA

Vancouver

Murphy J. Misfeasance in a Public Office: a Tort Law Misfit? Oxford Journal of Legal Studies. 2012;32(1):51-75. doi: 10.1093/ojls/gqr018

Author

Murphy, John. / Misfeasance in a Public Office : a Tort Law Misfit?. In: Oxford Journal of Legal Studies. 2012 ; Vol. 32, No. 1. pp. 51-75.

Bibtex

@article{cf507238cfb1401ca83267cf5295a4c7,
title = "Misfeasance in a Public Office: a Tort Law Misfit?",
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.",
keywords = "misfeasance in a public office , nature of torts, corrective justice , rights-based tort theory",
author = "John Murphy",
year = "2012",
doi = "10.1093/ojls/gqr018",
language = "English",
volume = "32",
pages = "51--75",
journal = "Oxford Journal of Legal Studies",
issn = "0143-6503",
publisher = "Oxford University Press",
number = "1",

}

RIS

TY - JOUR

T1 - Misfeasance in a Public Office

T2 - a Tort Law Misfit?

AU - Murphy, John

PY - 2012

Y1 - 2012

N2 - 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.

AB - 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.

KW - misfeasance in a public office

KW - nature of torts

KW - corrective justice

KW - rights-based tort theory

U2 - 10.1093/ojls/gqr018

DO - 10.1093/ojls/gqr018

M3 - Journal article

VL - 32

SP - 51

EP - 75

JO - Oxford Journal of Legal Studies

JF - Oxford Journal of Legal Studies

SN - 0143-6503

IS - 1

ER -