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?
Continue reading “Prince, Pop Art, and the Purpose of Copyright”Category: Uncategorized
Accept No Substitutes
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.”
Continue reading “Accept No Substitutes”The Originalism of Justice Hearn
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.
Continue reading “The Originalism of Justice Hearn”Reaping the Whirlwind of Originalism
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.
Continue reading “Reaping the Whirlwind of Originalism”The Common Good As A Legal Concept
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”
Lex and Ius in Football
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.)
Continue reading “Lex and Ius in Football”How the Supreme Court Misses the Point on Fair Use
Three icons of American pop culture–Andy Warhol, Prince, and the Supreme Court of the United States1–converged this week when the Court heard oral arguments in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The case concerns whether a Warhol print based on a portrait of Prince by photographer Lynn Goldsmith constituted fair use or was instead an infringement of Goldsmith’s copyright. Warhol’s “Orange Prince” was one of a series of 16 works based on the same photograph, none with a license from Goldsmith. Goldsmith has asserted that this infringed her reproduction and derivative work rights in the original photograph. The images in question may be viewed at SCOTUSBlog’s summary of the oral argument.
Continue reading “How the Supreme Court Misses the Point on Fair Use”The Bourbons of Jurisprudence
Profs. William Baude and Stephen Sachs have published a review of Adrian Vermeule’s new book, Common Good Constitutionalism. Ius & Iustitium is pleased to publish Vermeule’s response as a coda to our symposium on this work.
The Editors
Adrian Vermeule[1]
In a recent and illuminating paper,[2] Emad Atiq (a legal philosopher) and Jud Mathews diagnosed what they called a “jurisprudential turn” in public law scholarship, and argued that this turn amounted to a poorly theorized attempt to rule in certain approaches to public law theory, and rule out other approaches, on highly contestable grounds, by a kind of unwarranted conceptual fiat. One of the central examples Atiq and Mathews used to illustrate this critique is the work of William Baude and Stephen Sachs.[3] Baude and Sachs confidently imagine that their particular, highly idiosyncratic versions of positivism and originalism provide the yardstick against which all public law theories should be measured. They present as unquestioned axioms of legality and legal interpretation in our legal order what are, in fact, highly controversial views, which do not correspond to or derive from any recognized version of positivism in jurisprudence. As Atiq and Mathews put it, “[Baude and Sachs] argue that an originalist approach to constitutional interpretation is a requirement of law, and that this fact follows from the correct first principles about law—roughly, the positivistic claims of H.L.A. Hart. In fact, it takes work to clarify the controversial variation on Hart’s theory that underwrites their defense of originalism. … Baude and Sachs’ originalist conclusions do not follow from standard versions of positivism defended by Hart, Raz, and Shapiro.”[4] Continue reading “The Bourbons of Jurisprudence”
Symposium on Common Good Constitutionalism
Ever since Adrian Vermeule published “Beyond Originalism” in The Atlantic in the spring of 2020, there has been considerable excitement about Vermeule’s argument that it is time for conservatives to abandon originalism in favor of a more robust approach to law and government. Vermeule’s book, Common Good Constitutionalism (Polity Press 2022), expands upon the argument of the original Atlantic essay and presents his case for a new conservative approach to the law. Over the course of the next week, Ius & Iustitium is pleased to present a special symposium on Common Good Constitutionalism.
Readers of Ius & Iustitium will be familiar with the elements of Vermeule’s argument, but Common Good Constitutionalism sets it forth with admirable force and clarity. It is also an excellent introductory work for an educated general audience, which may well be aware of the ongoing debates about Vermeule’s work and wishes to learn more about his position. And above all Common Good Constitutionalism is a thought-provoking work, pointing toward numerous avenues for further investigation and further discussion. The range of essays presented as part of this symposium shows just how broad the vistas opened by Common Good Constitutionalism are.
It is a lamentable fact that much of the discourse surrounding Common Good Constitutionalism has been driven by Vermeule’s critics. The valued employees of Conservatism, Inc. have hastened, for whatever reason, to haul out their shopworn critiques of not merely Vermeule’s work but also the entire thrust of the classical legal tradition from Aristotle to the day before yesterday. Yet Vermeule understands what his critics do not: the American left of 2022 is not the left of 1982. The ivory-tower crowd can descend from their faculty lounges and think-tank offices and do their best King Canute impressions, but the Marxist waves show no signs of retreating. Ronald Reagan will not save us now.
Happily, however, there are lawyers who are not so insulated from reality by that greenest of cushions. Ius & Iustitium is pleased to present a selection of essays about and inspired by Common Good Constitutionalism written by lawyers coming from the heart of the classical tradition. Michael Foran writes about the book as a challenge to the the conventional wisdom of constitutional theory. Conor Casey writes on the place of the administrative state under common good constitutionalism. Aníbal Sabater writes on Quintilian’s presentation of the natural lawyer as the “good man skilled in speaking.” Masurius Sabinus writes on the book from the vantage point of a recent law school graduate—an important perspective given the book’s enthusiastic reception amongst law students and young lawyers. And Jacob Neu offers an all-too-often-overlooked perspective: that of the practitioner. Finally, Adrian Vermeule will respond to the authors of the essays presented here, and there will be a concluding panel discussion of the book and symposium essays via Zoom.
Common Good Constitutionalism has generated unusual excitement, perhaps unheard-of excitement for a work of jurisprudence. The audience of enthusiastic students and young professionals at the book’s recent launch at the National Press Club demonstrates that there is deep interest in Vermeule’s ideas. It is our hope that this symposium will present further opportunities for discussion and debate, above all from those committed to the classical legal tradition.
The Editors
The Short History and Checkered Tradition of “History and Tradition”
In three major cases at the end of June, the Supreme Court has relied upon a “history and tradition” test to define the scope of constitutional rights and federal powers. Writing for the Court in Dobbs v. Jackson Women’s Health Organization, Justice Alito overruled Roe v. Wade held that the Constitution did not protect a right to abortion and that unenumerated rights and liberties “must be deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty,” quoting Washington v. Glucksberg in support. In Kennedy v. Bremerton School District, Justice Gorsuch overruled Lemon v. Kurtzman’s test for a violation of the Establishment Clause and held, “The line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers.” And in New York State Rifle & Pistol Association v. Bruen, Justice Thomas rejected reliance on intermediate scrutiny in considering government regulation of firearms under the Second Amendment, holding that the government must show a firearm regulation is support by the text, “as informed by history,” or “comported with history and tradition.” In each case, the Court expressly or implicitly rejected a tiered scrutiny framework and chose to focus instead on how the scope of the right was historically defined within the Anglo-American tradition.
What do “history and tradition” mean in these contexts, and why should they be important? By this test, the conservative majority intends to ground American law within a broader tradition to avoid the temptation of “living constitutionalism.” Yet these cases also demonstrate the problem of originalist reliance on history only at specifically favored moments in time, rather than incorporating a broader understanding of the tradition in which they are embedded. And if the “history and tradition” test is ultimately not grounded in the legal and philosophical substance of that tradition—the natural law and the Western classical legal tradition, as interpreted by English jurists—then they are at best half-hearted and superficial attempts to recall that tradition and will be easily manipulated in future cases.
Continue reading “The Short History and Checkered Tradition of “History and Tradition””