Research output: Contribution to Journal/Magazine › Journal article › peer-review
Research output: Contribution to Journal/Magazine › Journal article › peer-review
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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 -