A tort for “cancel culture”

In his annual address to the Vatican diplomatic corps on January 11, Pope Francis decried the phenomenon of “cancel culture.” The Pope noted that “[u]nder the guise of defending diversity,” “cancel culture” obliterates “all sense of identity, with the risk of silencing positions that defend a respectful and balanced understanding of all sensibilities.” Worse than that, it promotes a kind of thinking that is “constrained to deny history or, worse yet, to rewrite it in terms of present-day categories, whereas any historical situation must be interpreted in the light of a hermeneutics of that particular time, not that of today.” 

One finds examples of the “cancel culture” condemned by the Pope everywhere, with new examples emerging almost daily. Professors and podcasters alike find themselves in the hot seat with astonishing regularity. However, few solutions to “cancel culture” have been identified. The cycle continues. Some prominent professor, executive, or personality says something wicked, foolish, or merely unpopular. The usual suspects of left-wing journalists and Twitter power users find it and boost the signal, often notifying the person’s employer through the phenomenon of “snitch tagging.” The outrage builds in a sort of positive feedback loop. Finally the desired goal is reached and the professor or executive finds herself without a job, without friends, and without prospects. 

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Catholics for Choice and Trademark law

On the evening of January 21, 2022, the night before the annual March for Life in Washington, D.C., pro-life activists gathered in the Basilica of the National Shrine of the Immaculate Conception to celebrate Mass for the unborn and for the success of the March. Unbeknownst to the Mass-goers, another group of protesters gathered with a projector across the street from the Basilica. As Mass was being celebrated inside the church, these protestors projected onto the outside of the church statements in support of legal abortion access. This group was led by Catholics for Choice, an organization dedicated to protecting legal abortion.

The same group released a statement that evening by its president Jamie L. Manson stating, “I support abortion access because my Catholic faith teaches that healthcare is a human right, and that includes abortion. … Catholics for Choice will never stop shining our light on behalf of the pro-choice, faithful majority for the fundamental constitutional and human right to abortion – as a matter of justice, a matter of freedom, and a matter of faith.” The following day Wilton Cardinal Gregory made plain his view of the dissident group and their stunt, stating, “The true voice of the Church was only found within the Basilica,” and that “those whose antics projected words on the outside of the church building demonstrated by those pranks that they really are external to the Church and they did so at night.” He then cited John 13:30: “And Judas having received the bread, went out immediately. And it was night.”

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Customary Law and Popular Sovereignty

Following are lightly edited remarks delivered at a panel on “Unwritten Law,” held at the annual meeting of the Association of American Law Schools on January 6, 2022. These informal remarks are of course not intended to be rigorous or comprehensive, merely suggestive. Many thanks to organizer Robert Leider and fellow panelists Jeremy Waldron, Steve Sachs and Ashraf Ahmed for their thoughts and contributions.


It’s difficult to know how to discuss the topic of unwritten law in twelve minutes. The topic is an incredibly heterogeneous one, full of analytic complications that require endless preliminary distinctions, such as the extremely pellucid and not at all confusing distinction, beloved of legal historians, between legal custom and customary law. So naturally I propose simply to heroically ignore all those conceptual preliminaries and tell you how I changed my mind on a fundamental substantive issue: the relationship between popular sovereignty and custom. 

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The Private Right of Action

Recently Texas enacted the Heartbeat Bill, which contains a twist on the standard heartbeat law, which many states have adopted in recent years. It allows individuals to sue abortion providers who violate the law, entitling them to collect at least $10,000. (It does not allow individuals to sue women who obtain abortions, however.) The United States Supreme Court declined to enjoin the enforcement of the law on a complicated procedural basis, but it is certain that there will be more litigation over the Heartbeat Bill. In fact, President Joseph Biden and Attorney General Merrick Garland have, citing the sanctity of the 1973 United States Supreme Court decision Roe v. Wade, vowed to prevent Texas from enforcing the law. President Biden has even considered taking other, more direct action to circumvent the law.

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Justinian Goes Fox Hunting

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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DACA and Leadership

In Department of Homeland Security v. Regents of the University of California, 591 U.S. ____ (2020), Chief Justice John Roberts struck down the actions of the Department of Homeland Security revoking the prior administrative actions popularly known as “DACA” (“Deferred Action  for Childhood Arrivals”). The DACA program, established in 2012 and expanded in 2014, allows individuals who came to the United States illegally as children to defer their deportation and, having done so, regularize their immigration status. The program came to include access to benefits. Shortly after President Trump took office in 2017, the Department of Homeland Security rescinded its DACA orders. The Supreme Court struck down these rescissions, not as exceeding the government’s power, but as failing to comply perfectly with the Administrative Procedure Act.

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The Significance of Roman Law for the Development of European Law

by Wolfgang Waldstein[1]

The Roman jurists, quite matter-of-factly, recognized natural law to be an inherent normative order for mankind, recognizable through reason and, thus, applied it in concrete decisions. With this work, the Roman jurists developed a concrete knowledge regarding the practice of natural law, thereby making it a historic reality. Over time, the deviations from natural law, which existed in the old Roman law, were perceived more and more as being unjust. Through countless individual decisions, these were corrected by the Roman jurists, in order to be able to arrive at just decisions. This work by the Roman jurists was conducted over a time period of nearly 500 years, from the 2nd century BC to the 3rd century AD. As was mentioned in the introduction, the results of this work were published in the year 533 AD by Emperor Justinian as one of his codes of law, in a work known as the Digest. The rediscovery of this work in the Middle Ages and the study of it at the original academy of the artes in Bologna, resulted in this school’s becoming the very first university in Europe. This university then influenced the entire further development of legal culture in Europe. Upon this foundation, the “natural law codes ”, the General Prussian state law of 1794 (AL), the Napoleonic Code of 1804, and the 1811 Civil Code of Austria (ABGB) were created. Based on this, the ABGB, even today, can say in § 16: “Every person has innate rights, already intelligible through reason.”

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