Ius & Iustitium

What do we want copyright law to do, and who do we want it to protect? At the end of the day, those are the questions driving the decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith. Behind all the analysis of market factors, review of decades-old licensing agreements, and the surprisingly rancorous back-and-forth between Justice Sotomayor’s majority opinion and Justice Kagan’s dissent, these two questions emerge: Should copyright law protect individual creativity or the public’s right to use? And if the former, which individual is being protected, the original artist or the person inspired by it?

William Baude’s recent lecture “Beyond Textualism?” has been making the rounds in conservative circles, including a response here from Adrian Vermeule and Connor Casey welcoming Baude’s agreement that the natural law would have been accepted as “unwritten law” among the Founders. Baude has responded on Twitter that his position is not new and in fact remains originalist.

Now I’m just a caveman patent lawyer, not a constitutional law professor—their world frightens and confuses me! But it seems to me that the dispute can be summarized in the following manner: Baude would accept natural law jurisprudence because the Founders interpreted their own law against that background, and therefore it is a valid interpretive principle today as well. In contrast, Vermeule and Casey would say to apply natural law principles because they are true and accurate principles of law, regardless of whether the Founders applied them or not. The first version is positivism (though perhaps of a Pickwickian kind), whereas the second is natural law.

And if that is the case, I will confess that in my younger days as a law student I would have taken Baude’s side. There is an attraction to it for lawyers of a conservative bent: “It is not I who have taken this or that position that seems at odds with general public mores today, but we must apply the law that was publicly enacted by the Founders. We cannot contravene their law, can we? And unless you change the law, well, you have to accept these essentially conservative positions of the law.”

I appear to have caused a bit of a stir in conservative circles recently when I asserted that Justice Hearn’s lead opinion finding a right to an abortion in the South Carolina state constitution was originalist. The general retort was that Justice Hearn engaged in results-oriented judicial activism, not originalism. But these two things are not necessarily contradictory–originalism as a method of interpretation does not guarantee that a judge is not using it merely as a means to a desired end. Whether Justice Hearn was doing exactly that is for her to say–I can only say that she did indeed use an originalist method to arrive at her conclusion. 

The whirlwind was coming, and the whirlwind has now come. That it originated from South Carolina is perhaps the only surprise.

On January 5 in a 3-2 decision in Planned Parenthood South Atlantic v. South Carolina, the South Carolina Supreme Court struck down a statute passed by the South Carolina state legislature banning abortions after the detection of a fetal heartbeat on the ground that the South Carolina constitution protected a woman’s right to abortion. The decision is based entirely on state constitutional grounds and not appealable to the U.S. Supreme Court. The five justices that arrived at the decision were all appointed by the strongly Republican state legislature, and prior to elevation to the bench all but one were registered Republicans.

And yet, such were the justices that found a right to an abortion in the South Carolina constitution. So yes, that it was South Carolina that has first taken this step may be surprising. But that originalist jurisprudence led to this result is the least surprising thing about the decision. 

What follows are unedited remarks, without footnotes, delivered at the Abigail Adams Institute’s colloquium on the common good, held at Harvard University on Thursday, November 10. Thanks to the organizers and to fellow speakers Fr. Jeff Langan, Mary Hirschfeld, and Darel Paul.

I’ll talk today about the common good as a legal concept. And I hope you can hear in my voice that legal is in italics. That is, I’m going to sketch with criminal celerity the more distinctively legal side of the classical tradition and say a few words in praise of the civilian jurists as opposed to the philosophical and theological side of the tradition.

Let me begin with a simple point that the book emphasizes, but which some of the commentators have overlooked, although others have not. “The common good” in the legal sense is not to be seen, at least not solely, as an external concept, that the analyst uses to justify or evaluate the legal system. Rather, it is a concept used by actors within the system. And it is an absolutely ubiquitous concept. Indeed, it is often literally embodied in the language of enacted provisions and judicial doctrines. Lawyers have constantly to construe provisions or work with doctrines that refer in terms to “the common good,” “the public interest,” “the general welfare,” or similar terms. (I follow the comparativist Elisabeth Zoller’s analysis of the concept of res publica in treating these versions of the common good as relatives and cognates of one another).

In order to illustrate how lawyers have to work with the common good as a concept within the legal system, I’m going to begin by introducing some provisions, and even cite some cases, to provide a few scattershot examples from around the law and its history, at all levels of legal systems (and these examples could be multiplied almost indefinitely). So buckle up everyone, it’s going to be a wild ride. Continue reading “The Common Good As A Legal Concept” →

What do you do in an official sporting event when something patently unfair happens? As it is football season in the US, I thought we could use a famous play as a light-hearted and enlightening example about lex, ius, the common good, and statutory interpretation. Now, I should be clear at the outset that judges and referees are not exactly the same. Referees are tasked with determining violations of the rules, and those rules are set based on the good of the game, not necessarily the good of the players involved. The referee also typically has little discretion about the implementation of those rules. Nevertheless, as the following story shows, on some occasions even referees look beyond the mere rules of the game.

Our story concerns the 1954 Cotton Bowl played between the mighty University of Alabama Crimson Tide and my alma mater, the lowly Rice University Owls. The Rice Owl football program has not had much historical success. At one time the Owls went 45 years—1961 to 2006—without earning a berth to a postseason bowl games. In 1962, when President John F. Kennedy announced that the US manned space program would send a man to the Moon, he gave the speech at Rice Stadium in Houston, Texas. As part of that speech, Kennedy asked rhetorically, “But why, some say, the Moon? Why choose this as our goal? And they may well ask why climb the highest mountain? Why, 35 years ago, fly the Atlantic? Why does Rice play Texas? We choose to go to the Moon. We choose to go to the Moon in this decade and do the other things, not because they are easy, but because they are hard.” So, yes, Rice has a bit of a reputation for historical football futility.

That was not the case in 1953, however, when Rice went 9-2 and won the Southwest Conference championship. On New Year’s Day in 1954, Rice played in the Cotton Bowl in Dallas, Texas against the champions of the Southeastern Conference, the Alabama Crimson Tide. Rice running back Dicky Moegle* turned in the game of his life, rushing for 265 yards and 3 touchdowns on 11 carries. (That’s an average of 24.1 yards per carry. For our international readers to understand how much this is, the current season’s leading individual rusher’s average is 7.5 yards per carry.)