In his first few days in office, President Joseph R. Biden, Jr. has issued thirty executive orders and other actions. This number, without context, is hard to interpret. However, Biden’s willingness to use executive orders at the very beginning of his administration is unparalleled in recent history. In Donald Trump’s first month in office, he issued four. In Barack Obama’s first month, he issued eight. George W. Bush and Bill Clinton each issued two. George H.W. Bush and Ronald Reagan each issued one. While conservatives—especially common-good conservatives—will object to the substantive content of many of Biden’s orders, they ought to take Biden’s first few days in office as a model for future administrations.
Continue reading “Joe Biden’s Orders and the Common Good”Category: Uncategorized
A Comment on Facebook, Antitrust, and the Common Good
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”A Euclid for Civil Liberties
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”
Antitrust and the Common Good
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”Feast of Saint John of Capistrano, Patron of Jurists
The 23rd 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 and the ius commune
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“The Living Voice of the Law
In the very first book of the Digest of the Emperor Justinian, the great jurist Papinian lists the sources of the ius civile, the civil law of Rome, as “statutes, plebiscites, decrees of the Senate, imperial decrees, or authoritative juristic statements”—and then immediately adds that “praetorian law is that which the praetors have introduced in aid or supplementation or correction of the ius civile.” Just as the ius civile is, in part, a determination or specification within reasoned boundaries of the more general principles of the natural law, so too the edicts of the praetors—high magistrates of Rome, just beneath the consuls—added specification to or adjusted the contours of the ius civile as necessary. Even more detailed specification could be added through the application of the edict to facts in particular cases by the courts. Non curat minima praetor became the maxim; the praetor does not attend to small details. The function of the praetor was to determine important questions of policy within the bounds of the ius civile, adjusting it to lived realities and changing circumstances. Each praetor’s edict was in force only for the praetor’s own term, but each successive officeholder tended to adapt the edict of his predecessor as a baseline, making adjustments at the margin. The result was a system in which, as the jurist Marcian put it, the edicts of the praetors were “the living voice of the ius civile.” Continue reading “The Living Voice of the Law”
The E.U.’s Class Action Directive: An Inspiration for Corporatist Class Action Reform?
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.