Equity and the Constitution: The Supreme Court, Equitable Relief, and Public Policy

The Supreme Court in the United Kingdom has held that it is not contrary to public policy to award damages in tort to fund a commercial surrogacy in another jurisdiction where this is lawful. This significant decision, in the case of Whittington Hospital NHS Trust v XX [2020] UKSC 14, will potentially have an impact on the regulation and reform of surrogacy law in the United Kingdom, Ireland and internationally. The judgment delivered by Lady Hale draws attention to multiple inconsistencies in the law, and it highlights, in particular, the need for effective regulation of domestic surrogacy. Legislators face an important and imminent challenge to reconcile the reality of commercial surrogacy with a deficient legal framework. This article seeks to highlight some of the important issues which this case has raised when considering regulation and reform of surrogacy law.

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11. Illegality

Anson's Law of Contract ◽

10.1093/he/9780198829973.003.0011 ◽

2020 ◽

pp. 405-434

Author(s):

Jack Beatson ◽

Andrew Burrows ◽

John Cartwright

Keyword(s):

Public Policy ◽

Supreme Court ◽

Final Section ◽

Common Law ◽

The Supreme Court ◽

The Common ◽

Restraint Of Trade

This chapter considers what counts as illegality and the effect of illegality on a contract (and consequent restitution). The approach of the Courts to illegality has been transformed for the better, and simplified, by the Supreme Court in Patel v Mirza in 2016. Illegal conduct, tainting a contract, can vary widely from serious crimes (eg murder) to relatively minor crimes (eg breach of licensing requirements) through to civil wrongs and to conduct that does not comprise a wrong but is contrary to public policy. As regards the effect of illegality, where a statute does not deal with this, the common law approach is now to apply a range of factors. A final section of the chapter examines contracts in restraint of trade.

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A Step Too Far? Whittington Hospital NHS Trust v XX [2020] UKSC 14

Medical Law Review ◽

10.1093/medlaw/fwaa037 ◽

2020 ◽

Author(s):

Kirsty Horsey ◽

Andrew Powell

Keyword(s):

Public Policy ◽

Supreme Court ◽

Family Formation ◽

Commercial Surrogacy ◽

The Past ◽

The Supreme Court

Abstract This comment piece explores the decision in Whittington Hospital NHS Trust v XX [2020] UKSC 14. It argues that despite notable shifts in public policy in respect of the acceptability of surrogacy as a means of family formation in the past twenty years, the Supreme Court has taken a step too far in deciding that foreign commercial surrogacy is as widely socially accepted. This impacts on the reasonableness of any claim for damages in negligence for the costs of commercial surrogacy. It is posited that the issue of whether damages for foreign commercial surrogacy are reasonable or not will be the key battleground in future negligence cases of this type.

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The Contemporary Issues and Supreme Court

10.20850/9781534299672 ◽

2019 ◽

Author(s):

Kiyoung Kim

Keyword(s):

United States ◽

Public Policy ◽

Supreme Court ◽

Public Good ◽

National Government ◽

Judicial Activism ◽

The Supreme Court ◽

The Us ◽

Arbitrary Rule ◽

Main Class

While the Constitution of United States had brought a popular democracy and Constitution-based structure of government, the Ancien Regime had been overhauled in new land. The “nobility” as a basis of government was dispelled, and people arose as a main class or pillar of nation. As we take a precept of chaotic years from the Articles of Confederation thorough the Constitution, the earlier ambition was mixed between the diplomatic unity and one strong national government. This context implicates much over the centuries and can also be illustrated with a residue of classic and present practice of international politics. The kind of Kantian ambition for the universal justice on liberty and equality, hence, should wait for more prosperous time afterwards that people tend to be conscious of their basic rights or public good from the arbitrary rule of majority, given our concocted recognition from the kind of public policy ideals from Bentham, “the greatest happiness of greatest number,” and “revolutionary spirit on people.” Given the judicial activism, the Supreme Court justices might be clairvoyant, who would be equipped with goodwill, wisdom and almighty intelligence to assuage an untreatable scope of interests and state specificities. Foreign lawyers would find such ample source of laws in surprise, who might envy a wide coverage of judicial interests. They perhaps would take the US context as the kind of insightful classroom and learn the lessons from their case laws.

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Constitutional Politics in the Gilded Age

The Journal of the Gilded Age and Progressive Era ◽

10.1017/s1537781400003777 ◽

2010 ◽

Vol 9 (1) ◽

pp. 7-35 ◽

Cited By ~ 2

Author(s):

Michael Les Benedict

Keyword(s):

Public Policy ◽

Supreme Court ◽

Social Order ◽

Gilded Age ◽

American People ◽

Ordinary People ◽

Policy Makers ◽

Constitutional Politics ◽

Personal Liberty ◽

The Supreme Court

During the Gilded Age, constitutional issues pervaded the discussion of nearly all matters of public policy, including regulation of railroads, suppressing unsafe and fraudulent products, labor issues, and combating trusts and monopolies. The Democratic and Republican parties differed in their conceptions of federal power and state rights as well as on matters related to social order and personal liberty. They articulated these differences in political platforms and manifested them in their approach to public policy. The obsession with constitutional issues was not confined to the halls of Congress or the chambers of the Supreme Court. Constitutional discourse ran up from ordinary people and interest groups to public policy makers and down from policy makers seeking support based on fidelity to constitutional principles. Ordinary people influenced constitutional policymaking not only through voting but through various means of making their views known. Advocates used all types of media to make constitutional issues clear to the American people. These ranged from formal treatises aimed at the intellectual elite to cartoons, caricatures, songs, and screeds. Politicians articulated constitutional positions in political platforms, congressional addresses, pamphlets, political and commemorative addresses, and stump speeches. Justices of the Supreme Court eschewed technical and abstract language in constitutional opinions, addressing them to a more general public than they did in other areas of law. In the end, constitutional policy was not determined through legal determinations of the Supreme Court but by the political decisions of the American people.

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Exile within the United States

Crime & Delinquency ◽

10.1177/001112876501100103 ◽

1965 ◽

Vol 11 (1) ◽

pp. 22-29

Author(s):

Brent T. Lynch

Keyword(s):

United States ◽

Public Policy ◽

Supreme Court ◽

Constitutional Law ◽

The United States ◽

The State ◽

Prison Inmates ◽

Federal Constitution ◽

The Supreme Court ◽

Executive Agency

The Utah Board of Pardons, an executive agency, releases some Utah prison inmates by an order of "conditional termina tion," which directs the recipient to leave the state immediately and remain away permanently. The Supreme Court of Utah has recently held this order to be valid and constitutional, a ruling attacked by this article, which cites cases wherein rights guaranteed by the federal Constitution are violated. Public policy, sound penology, and constitutional law all militate against use of conditional termination.

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The Unilateral Determination of Price – a Question of Certainty or Public Policy?

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad ◽

10.17159/1727-3781/2013/v16i3a2360 ◽

2017 ◽

Vol 16 (3) ◽

pp. 66

Author(s):

Hanri M Du Plessis

Keyword(s):

Public Policy ◽

Supreme Court ◽

South African ◽

Extended Period ◽

Objective Standard ◽

Bargaining Position ◽

The Supreme Court ◽

Form Part ◽

Court Of Appeal

The unilateral determination of price has been a controversial issue for an extended period of time. During the 1990s the Supreme Court of Appeal asked if the rule should still form part of South African law. Specifically, the court raised a few questions in respect of the rule and commented that the rule as applied in South African law is illogical. The court also remarked that public policy, bona fides and contractual equity might also be employed when considering such issues. Despite the criticisms of the Supreme Court of Appeal, it would seem that the rule still forms part of our law. This article investigates whether or not the rule should be retained in the South African common law. The answer will depend on two separate questions: Is the rule a manifestation of the requirement of certainty of price? If not, does public policy require that the rule be retained? The article shows that the rule prohibiting the unilateral determination of price should not be seen as a manifestation of the requirement of certainty of price. This is because there are various circumstances where the unilateral determination of the price results in certainty of price or can be applied in such a way as to arrive at certainty of price. Most of these arguments require that the discretion to determine the price should not be unfettered and should be subject to some objective standard. This can be done expressly or tacitly in the contract, or an objective standard (in the form of reasonableness) will be implied by law. Thereafter, the article considers various public policy considerations that could be used to determine if a discretion to determine the price should be enforced. The article argues that public policy may dictate that such a discretion should be valid and enforceable provided that it is not unfettered and subject to an external objective standard or reasonableness. However, in cases where an unfair bargaining position is present, public policy may dictate otherwise. The article accepts that whether a term providing for the unilateral determination of the price would be contrary to public policy or not will depend on the facts of the case. However, it is submitted that, at a minimum, the considerations and factors discussed in the article should be taken into account when making such an assessment.

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Poligamia en Marruecos y pensión de viudedad en España. El Tribunal Supremo y el orden público internacional atenuado = Poligamy in Morocco and pension in Spain. The Spanish Supreme Court and the public policy exception

CUADERNOS DE DERECHO TRANSNACIONAL ◽

10.20318/cdt.2018.4396 ◽

2018 ◽

Vol 10 (2) ◽

pp. 718

Author(s):

María José Valverde Martínez ◽

Javier Carrascosa González

Keyword(s):

Public Policy ◽

Supreme Court ◽

International Law ◽

Private International Law ◽

Spanish Society ◽

International Convention ◽

The Public ◽

Policy Effect ◽

The Supreme Court ◽

Legal Foundations

Resumen: El presente trabajo expone y analiza los criterios de solución empleados por el Tribunal Supremo para dar respuesta a la cuestión de saber si dos mujeres, viudas de un sujeto legalmente casado con ambas en Marruecos, pueden ser beneficiarias de la pensión de viudedad generada por dicho sujeto. El Tribunal Supremo acoge e implementa la tesis del orden público internacional atenuado. Lo hace al margen de todo convenio internacional y de todo precepto legal porque entiende que el orden público atenuado protege los fundamentos jurídicos de la sociedad española y permite, al mismo tiempo, que un matrimonio legalmente celebrado en Marruecos, surta ciertos efectos legales en España. En particular, admite que ambas esposas puedan ser consideradas beneficiarias, a partes iguales, de la pensión de viudedad española.Palabras clave: orden público internacional, pensión de viudedad, poligamia, Derecho internacional privadoAbstract: This paper deals with the criteria used by the Supreme Court of Spain in order to answer the question of whether two women, widows of the same husband, both legally married in Morocco, can be regarded as beneficiaries of the widow’s pension generated by their husband. The Supreme Court of Spain implements a mitigated public policy effect even though no international convention applies to the case. Once guaranteed that the legal foundations of Spanish society are safe, the Spanish Supreme Court activates an attenuated public policy to allow some legal effects of a marriage legally celebrated in Morocco. Among them, the court admits that both wives can be considered beneficiaries, in equal parts, of the Spanish widow’s pension.Keywords: public policy, widow’s pension, polygamy, private international law.

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