Month: October 2020

In 1926, in a case called Village of Euclid v. Ambler Realty Co. that is well-known to approximately all American law students, Justice Sutherland wrote for the Court to uphold a zoning scheme in Ohio. Drawing upon the deferential version of the police-power framework that, I have argued, embodies common-good constitutionalism within American law, Sutherland announced that “if the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” Implicitly drawing upon the classical idea of determination, under which the public authority gives reasonable specifications to general legal principles, and also anticipating the famous “margin of appreciation” of human rights law, Sutherland added

it may thereby happen that not only offensive or dangerous industries will be excluded, but those which are neither offensive nor dangerous will share the same fate. But this is no more than happens in respect of many practice-forbidding laws which this Court has upheld, although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves…. The inclusion of a reasonable margin to insure effective enforcement will not put upon a law, otherwise valid, the stamp of invalidity…. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some industries of an innocent character might fall within the proscribed class. It cannot be said that the ordinance in this respect passes the bounds of reason and assumes the character of a merely arbitrary fiat.

Euclid thus illustrates the classical framework of deferential judicial review. Continue reading “A Euclid for Civil Liberties” →

Last week, the U.S. Department of Justice, accompanied by 11 state attorneys general, sued Google under Section 2 of the Sherman Act, 15 U.S.C. § 2.  The action seeks to “restrain [Google] from unlawfully maintaining monopolies in the markets for general search services, search advertising, and general search text advertising in the United States through anticompetitive and exclusionary practices, and to remedy the effects of this conduct.”  While widely lauded as decisive action against the power of “Big Tech”, this complaint will usher in years of mind-numbingly expensive litigation led by the top law firms in the country, the success or failure of which will hinge on a battle of economists seeking to prove or disprove the complaint’s carefully chosen markets.  Daubert motions will be as dispositive as any motion to dismiss or summary judgment.  The court will come to its conclusion based on hundred-page economist expert reports, and after analyzing a dizzying array of graphs and regressions.

Many antitrust scholars decry the chokehold of the economists on contemporary antitrust jurisprudence, mostly blaming Chicago School economics and Robert Bork’s seminal 1978 book, The Antitrust Paradox.  See e.g., Barak Orbach, How Antitrust Lost Its Goal, 81 Fordham L. Rev. 2253 (2013).  These scholars see a break between prior antitrust enforcement focused on “trust busting,” and the subsequent adoption of a “consumer welfare test,” to be proven by economic analysis, as the center of U.S. antitrust law.  Far from being a complete departure, however, this development was the natural result of liberalism’s unraveling of business regulation from the common good. 

Continue reading “Antitrust and the Common Good” →

The 23^rd of October is the feast of Saint John of Capistrano. He is perhaps best known as a Franciscan preacher and miracle worker, the “soldier saint” who defended Hungary against the Turks, and the namesake of a city in California. It is less well known that St. John of Capistrano is a patron saint of jurists (along with the more familiar patrons: St. Thomas More, St. Raymond of Penyafort, and St. Yves of Kermartin).

St. John was born in the Abruzzi in 1385, the son of a noble family from France that had settled in the Kingdom of Naples under the Angevin dynasty. As a young man, he studied law at Perugia and was noted for his brilliance. He was appointed governor of Perugia at the age of 27. However, while imprisoned during a regional conflict, John had a conversion experience and entered the Franciscans at the age of 31. Continue reading “Feast of Saint John of Capistrano, Patron of Jurists” →

Sir John Fortescue (1394–1479), who has been called by Ernst Kantorowicz “England’s greatest jurist of the Lancastrian period,” called England a dominium politicum et regale. A kingdom ruled politically and regally. This definition became subsequently very influential, not least because it contains a limitation on both the monarch and Parliament. One cannot rule without the other. Fortescue purported to derive his analysis from St. Thomas Aquinas and Giles of Rome. This has been the subject of considerable controversy, not least because it has not been clear over the last five hundred years or so where in Aquinas Fortescue found the notion of the dominium politicum et regale. Nevertheless, it is important to observe that Fortescue took great pains to claim Aquinas as an antecedent. This is one more example of the classical legal tradition—the ius commune—finding its way into English legal theory.

Continue reading “Sir John Fortescue and the ius commune“ →