Month: December 2020

A Comment on Facebook, Antitrust, and the Common Good

Maria Messina

On December 9, the Federal Trade Commission and 48 state attorneys general, led by New York Attorney General Letitia James, filed separate antitrust complaints in the federal district court for the District of Columbia.  The complaints allege violations of Section 2 of the Sherman Act, 15 U.S.C. § 2, and Section 7 of the Clayton Act, 15 U.S.C. § 18.  The FTC and State AGs request extraordinary equitable relief “sufficient to restore the competition that would exist absent the conduct alleged,” specifically the divestiture of Instagram and WhatsApp.

Of course, the FTC cleared Facebook’s acquisitions of Instagram and WhatApp when they were subjected to antitrust review at the time of the transactions in 2012 and 2014, respectively.  This is not surprising.  As I wrote in October, “[b]oth Democratic and Republican administrations were blinded into regulatory inaction by the myth of entrepreneurship nurtured by the industry’s extensive lobbying and campaign contributions.”  Fault for Facebook’s allegedly dominant position in the defined market should be laid squarely at the doorstep of regulators asleep at the wheel.

Continue reading “A Comment on Facebook, Antitrust, and the Common Good” →

Deference and Determination

Adrian Vermeule

In his remarkable and underappreciated book on Natural Law in Court, Dick Helmholz observes that when moderns turn to the subject of the relationship between natural law and positive law, they immediately focus on the question whether the former in some sense “trumps” the latter in cases of irreconcilable conflict. To the classical lawyer, however, that question was not central. To be sure, as early as the Institutes of Gaius it was said that “changes to civil law can take away rights belonging to civil law (jus civile), but not rights belonging to natural law (jus naturale)” (I.158). But natural law had many other roles detailed by Helmholz, roles much more central in actual practice, such as supplying interpretive principles and default rules for construing statutes, supplying principles of just procedure, and suggesting remedies.

More broadly, for the classical lawyer, the whole framework within which to discuss the relationship between natural and positive law was different, centering on their complementary roles rather than on potential conflict. The positive law, the ius civile, was understood as a set of rational ordinances promulgated by the public authority for the common good —that is, in order to give more specific content to the general principles of the natural law. In a famous passage, Aquinas distinguished two ways in which positive law might be derived from the natural law:

Continue reading “Deference and Determination” →