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Retroactive laws present vexing problems for lawyers. On one hand, they are awfully convenient, especially when a problem with the law is discovered. On the other hand, they are a favorite tool of tyrannies like Nazi Germany. They are especially disfavored in the penal context, especially in the Anglo-American tradition of the seventeenth and eighteenth centuries. However, the problem remains present in the jurisprudence of the twentieth century, notably in the work of Lon Fuller. Yet the condemnation of retroactive laws has deep roots in the classical legal tradition, going back to Justinian and Gregory IX’s Liber Extra. Indeed, one can find condemnations of the concept all the way back to Ancient Rome. Given that retroactive laws—and putatively retroactive administrative regulations—remain troublesome for lawyers and judges, the tradition provides an under-utilized source for considering the problem.

Continue reading “The Moral Rule Against Retroactivity” →

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.

Continue reading “Reviving the Classical Legal Tradition in an Age of Legal Barbarism” →

In his mini-treatise On the Government of a City, the great Italian lawyer-commentator Bartolus (Bartolo de Sasseferrato) begins with a fairly conventional typology of the six regime-types of classical constitutional theory. The city may be ruled by the many, the people; by the few, the optimates; or by one man. Any of these forms of rule may or may not be tyrannical. We thus have six categories, named respectively polity or regimen ad populum (good rule by the many) and democracy (bad or, in Bartolus’ preferred term, “perverse” rule by the many); aristocracy (good rule by the few) and oligarchy (bad); kingship (good rule by one) and tyranny (bad).

Continue reading “Monstrous Government” →

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” →

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” →

Ius et Iustitium is happy to present this guest post by Gregory B.L. Chilson. Mr. Chilson is an LL.M. candidate at the University of Vienna.

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In his examination of American patent law for Ius & Iustitium earlier this year, Jake Neu’s piece explored Adrian Vermeule’s view that the common good tradition enjoys a pedigree worthy of greater examination. Neu offered a compelling demonstration of the practical role which the classical legal tradition can and should play in contemporary jurisprudence, drawing on his chosen topic of patent law. Can the same be said of the company and corporate law as well?

Just as the patent found its role in Venetian courts, the parentage for our companies can be traced back to late medieval Italy. Although the modern company is often attributed to English and Dutch Mercantilism (and French liberalism)^[1], jurists ought not overlook the extent to which English guilds were in part influenced by Italian confraternities and para-ecclesiastical bodies.^[2] The term ‘guild’ itself, is well noted for its dual meaning as it is a derivative of the Germanic word ‘geld’ which first and foremost as a verb means ‘to pay’ or ‘contribute’, but also as a noun for ‘sacrifice’ or ‘worship’.^[3]

Both meanings point to a common theme: pulling resources together in order to achieve common goals, both religious and secular in character, which were desired by stakeholders and at the same time benefitted the society and the state.

Continue reading “Man Is Known by the Company He Keeps: Corporate Law and the Common Good” →

Ius et Iustitium is happy to present this guest post by Jake Neu. Mr. Neu is a partner at Bradley Arant Boult Cummings LLP. This is the second part of a two-part series, part I can be found here. Mr. Neu argues in favor of the civil law (or droit d’auteur) understanding of copyright. A reply to this series, countering that the droit d’auteur (and copyright generally) is ill-founded on natural law and Thomistic grounds, will follow.

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Defining Fair Use

As introduced in my first post on copyright law, fair use is a peculiarly American legal doctrine that permits the public to copy copyrighted works without payment to the original author in various circumstances. Other Anglo-American jurisdictions have some notion of fair use or fair dealing, but these are typically more limited in scope, nothing like the fact-based flexible inquiry found in the United States. But as I also previewed in the initial post, the flexibility of the inquiry and its increasing scope has also been the source of two concerns. First, there are jurisprudential concerns about fair use exceptions swallowing the grant of copyright. Second, pragmatically, the application of fair use in any given case has become highly unpredictable. In this post, I argue that by introducing to the fair use analysis certain principles from the natural law and common good jurisprudence underlying the Continental conception of author’s right, we may retain the flexibility so advantageous to the American conception of fair use while also providing predictable contours and limiting principles to allay the twin concerns that fair use raises.

Continue reading “Copyright, Author’s Right, and the Common Good: Fair Use (Part II)” →

Ius et Iustitium is happy to present this guest post by Jake Neu. Mr. Neu is a partner at Bradley Arant Boult Cummings LLP. This is the first part of a two-part series. Part II is available here. Mr. Neu argues in favor of the civil law (or droit d’auteur) understanding of copyright. A reply to this series, countering that the droit d’auteur (and copyright generally) is ill-founded on natural law and Thomistic grounds, will follow.

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In my previous post on “The Common Good in Patent Law,” I stated that modern patent law had a single source, the Venetian Patent Statute of 1474. In that statute one finds all the principal characteristics of modern patent law present in various stages of maturity, and this conception eventually spread to all European countries and around the world. Therefore, patent law enjoys a very stable and common global understanding of its nature and purpose, even if the contours and scope of the law remain hotly debated.

The same cannot be said for copyright law, which has long struggled to balance two competing, ancient conceptions of what copyright law should be and do. Given the importance that copyright plays in technology, software, data management, and mass entertainment today, these differences have profound implications for how we organize rights and obligations under the law. Before considering how copyright may operate in support of the common good, we must first discuss these competing conceptions.

Continue reading “Copyright, Author’s Right, and the Common Good (Part I)” →

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” →

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” →