Yves Casertano

A Victory for Originalism?

May 5, 2022May 5, 2022 Yves Casertano

The leaked draft majority opinion in Dobbs v. Jackson Women’s Health Organization suggests that the Supreme Court is poised to finally overturn Roe v. Wade (1973). While the fight for legal protection of the unborn will continue and even intensify, it is undeniable that the demise of Roe would be an improvement over the status quo and a true victory—at least in the “end of the beginning” sense. Who deserves credit for this victory? First and foremost, the pro-life movement. Instead of retreating into obscurity following Roe, pro-lifers grew a movement, captured a political party, and forced it to make abortion a top priority in the appointment of judges. Credit is also due to the mainstream conservative legal movement, which includes and is led by many committed pro-lifers for whom overturning Roe v. Wade was always a top priority. Despite its many shortcomings and failures (which this blog routinely highlights), there can be no denying that the conservative legal movement may have finally delivered the result it has promised for decades. But what credit do we owe originalism, the official ideology of the conservative legal movement? Based on Justice Alito’s draft majority opinion, the answer seems to be nothing. Originalism will not have played any meaningful role in overturning Roe.

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Justinian Goes Fox Hunting

May 26, 2021June 19, 2021 Yves Casertano

Perhaps without realizing it, most United States-educated lawyers are familiar with Book II.1.13 of Justinian’s Institutes. Here is the relevant excerpt:

Does an animal become yours when it is wounded and ready to be caught? Some jurists thought it became yours at once and stayed yours till you gave up the chase, only then becoming available again to the next taker. Others thought that it became yours only when you caught it. We confirm that view. After all, many things can happen to stop you catching the animal.

This passage is referenced in Pierson v. Post, a New York case from 1805 that most American law students read in their first-year property law course. Pierson v. Post involved a dispute between two hunters over who was the rightful owner of a fox killed on a beach on Long Island: The hunter who first spotted and pursued the fox? Or the hunter who intercepted, captured, and killed the fox? Apart from its usefulness in introducing law students to the complexities of property rights, Pierson v. Post undoubtedly owes its place in the first-year law curriculum to its amusingly old-timey facts (a fox hunt in Long Island!) and the playfully flowery prose employed in the opinions, particularly the dissent (“[W]ho would keep a pack of hounds; or what gentleman, at the sound of the horn, and at peep of day, would mount his steed, and for hours together, ‘sub jove frigido,’ or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honors or labors of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit?”)

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Yes, Courts Can Enforce Fourteenth Amendment Personhood For The Unborn

April 5, 2021April 7, 2021 Yves Casertano

One of the objections to extending Fourteenth Amendment protections to unborn children is that it would be impossible for the Supreme Court and lower courts to meaningfully enforce such a ruling. Ed Whelan raised this objection in his initial response to John Finnis. Josh Craddock, Finnis, and Whelan published further replies and sur-replies. Most recently, Ramesh Ponnuru expressed his agreement with Finnis’s view on the Fourteenth Amendment, but argued that only Congress can enforce these protections. Finnis and Craddock convincingly explain, in broad strokes, how a Supreme Court ruling would translate into concrete legal protections for the unborn. While I largely agree with Craddock and Finnis, I would like to offer a few supplemental observations.

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Reviving the Classical Legal Tradition in an Age of Legal Barbarism

February 2, 2021February 10, 2021 Yves Casertano

Historians debate whether and how much the barbarian invasions of the fifth century marked a rupture with the Roman past in the former territories of the Western Roman Empire in Europe. Given the endurance of the Catholic religion and the Latin language (at least outside of Britannia and Germania), a strong argument can be made for continuity. Perhaps the clearest sign of rupture, however, was the eclipse of Roman law.

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Feast of Saint John of Capistrano, Patron of Jurists

October 23, 2020November 26, 2020 Yves Casertano

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” →

The E.U.’s Class Action Directive: An Inspiration for Corporatist Class Action Reform?

September 15, 2020November 26, 2020 Yves Casertano

The origins of the class action can be traced to the English chancery courts—perhaps even to King Edward II’s adjudication of a dispute concerning the rights of Channel Islanders in 1309. The class action as we know it today, however, emerged in the United States in the mid-20th century and has mutated far beyond anything that would have been recognizable to chancery courts of even a century ago. In recent decades, the U.S.-style class action has begun to spread not only to other common law jurisdictions but also to the civil law countries of Europe and elsewhere. Earlier this summer, the European Union published the text of a proposed directive on “representative actions for the protection of the collective interests of consumers” (the “Directive”). Consumer law is defined broadly to include “data protection, financial services, travel and tourism, energy, telecommunications, environment and health, as well as air and train passenger rights, in addition to general consumer law.” While the class action procedure envisioned by the E.U. directive is more limited in scope than Federal Rule of Civil Procedure 23 and state law analogues, the Directive (once it is formally approved and implemented) is expected to significantly expand the availability of the class action mechanism in Europe, particularly in cross-border litigation.

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Eighty-five years ago this past May, the Supreme Court struck down a statute that overhauled U.S. economic regulation according to principles promoted in a papal encyclical. The case was A.L.A. Schechter Poultry Corp. v. United States (“Schechter”),^[1] the statute was the National Industrial Recovery Act of 1933 (“NIRA”), and the encyclical was Quadragesimo anno. NIRA, and the agency it created (the National Recovery Administration (“NRA”)), represented the high tide of the U.S.’s brief experiment with corporatism.^[2] To the extent NIRA is remembered at all, it is often viewed as an unwieldy, ill-conceived–but perhaps understandable–response to the Great Depression. Among right-liberals in particular, NIRA is denounced as a shameful flirtation with an un-American authoritarian continental ideology. Indeed, the Supreme Court’s unanimous decision striking down NIRA seems to reflect distaste with the corporatist principles underlying the statute. Since 1935, however, the specific legal grounds on which the Supreme Court invalidated NIRA have either become obsolete or called into question and, in any event, Schechter’s concerns can be avoided in future legislation. Notwithstanding the historical importance of Schechter’s death-blow to American corporatism, neither Schechter nor any other constitutional principles foreclose reinvigorated corporatist reforms, which are as needed today as they were during the Great Depression.