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Hugo Grotius, Monopolies and the Shift in Business Morality in the Early Modern Low Countries
No full textVol. 35:3As James Whitman has shown in a groundbreaking article in the The Yale Law Journal, subtle changes in the moral-legal treatment of business practices in the early modern Low Countries may be indicative of a wider tendency to lend normative support to the rise of a modern commercial society. Expanding on this insight, this article shows that with regards to the treatment of the problem of" monopolies", a similar such change occurs. In a passage from his influential work On the Law of War and Peace (1625), Hugo Grotius argued that" not all monopolies are against nature", thereby creating space for a more lenient treatment of chartered companies and dominant positions acquired through commercial industry in comparison to the Roman legal tradition and scholastic morality. Moreover, drawing on Max Weber's intuition about the spiritual sources of Western legal culture, this paper argues that a fresh look at Grotius's moral theological sources, especially Leonardus Lessius's On Justice and Law (1621), may provide us an explanation as to the why this subtle shift in his normative assessment of certain monopolistic practices occurred in the first place
The Pet Fish Canon
No full textInspired by the work of the late Professor Larry Solan, this article proposes that judges recognize as one of the textualist canons of statutory construction a "pet fish" canon. Such a canon would posit that when an ordinary reader would understand two or more words to yield a meaning that is different than the sum of the two words defined separately, the statutory interpreter should not disaggregate them. The Roberts Court has already followed such a linguistic precept in some statutory cases, and this article proposes that the Court recognize this as a canon considered at least as seriously as the dictionary, associated words, and negative implication canons. The pet fish canon reveals surprising power in cases involving criminal statutes, as it proves to be a useful tool for thinking about ordinary meaning (i.e., that meaning of federal criminal law that would be accessible to all of us ordinary speakers of the language)
The Case of the Boar That Fell Into the Trap (Digest 41.1.55)
No full textVol. 35:3Proculus was a Roman jurist and law-teacher of the mid-first century CE,
who was much respected and cited by later jurists. Relatively little survives of his writings,
but there are thirty-three extracts from his Letters that
Justinian's compilers placed in the Digest, including the one just quoted.
Many of the extracts are abridged, but enough of them have the original
form that the structure of the work is clear. Someone asks Proculus a
question normally using some form of the verb quaerere ("I ask," in the
translation). Proculus' answer is usually marked with some form of the verb
respondere (''the answer given was," in the translation). The questions often
have multiple parts, as does Digest 41.1.55. Proculus always answers the
question or questions in the order presented, normally in a quite oracular
fashion. That is characteristic of all the extracts except for this one. This one
begins with a series of distinctions, beginning with "let us see" in the
quotation. Proculus uses none of these distinctions in the answers that he
gives to the questions
EXCUSE 2.0
No full textExcuse doctrine presents one of the great enigmas of contract law. Excuse allows courts to release parties from their contractual obligations. It thus stands in sharp contrast to the basic principles of contract law and adds signifcant uncertainty to contract adjudication. This Article offers a crucial missing perspective on the doctrine of excuse: the view from a macroeconomic lens. Macroeconomics offers a new justifcation for the law of excuse and new ways of understanding the doctrine’s mysteries, creating Excuse 2.0. We offer a simple macroeconomic model of excuse doctrine, highlighting the role the doctrine plays under conditions of economic crisis and potential recession. Our analysis illustrates a counterintuitive advantage of excuse doctrine, suggesting that the legal uncertainty surrounding the doctrine can induce loss-sharing between contractual parties, thus minimizing the costs of long-term economic instability. In the COVID crisis, for example, excuse doctrine facilitated an extraordinary wave of contractual renegotiation and loss sharing—without triggering excessive litigation. We discuss the interpretive and normative implications of our analysis and highlight its signifcance for contemporary policy debates in the wake of the COVID-19 pandemic
‘New Parents’ and the Best Interests Principle
No full textVol. 35:2Parenthood law in the U.S. has traditionally been based on
gestation, marital status, and genetics. The best interests of the child principle,
which is pervasive in the law of parental rights and responsibilities, has
conventionally not played any role in parentage law. In contrast, foreign law,
especially, international human rights law, stresses on the interests of the child
as a universal standard in all decisions concerning children. This conventional
view of American law is no longer true.
With the rise of ‘new parents’ in non-traditional families, the American law
of parenthood has been undergoing an expansion to include intentional and
functional principles to treat non-traditional families equally. This new law of
parenthood has been accompanied by the creeping application of the best
interests principle to a new range of situations that are not merely disputes over
custody and visitation but raise the first order question of parenthood. This
application of the best interests principle is surprising given that it has
extensively been critiqued for being discretionary and indeterminate in custody
law.
This Article argues that the creeping application of the best interests
principle in parentage law is a development that should be avoided. First, the
Article suggests that the best interests principle rarely does independent work in
parentage law. Second, and more importantly, as a conceptual matter, it is
incompatible with parentage determinations.
To understand the work that the best interests principle is beginning to do,
the Article analyzes emerging case law on de facto parenthood in the United
States. These developments are brought in conversation with the more pervasive
use of best interests reasoning in the jurisprudence of the European Court of
Human Rights. Based on a comparative case law analysis, the Article shows that
the best interests principle is used inconsistently, does no independent work, and
obscures what is truly at stake in parenthood determinations.
While existing literature has extensively critiqued the best interests principle
for being discretionary, this Article makes four novel normative arguments
against the use of best interests in parentage law, focusing on the permanency
and relationality of parenthood and the temporality and the dignitary harms of
best interests. Ultimately, the Article endorses equality-based approaches to
parenthood, which center principles of intent and function, compared to the more
discretionary best interests standard
The Multicultural State: Progress or Tragedy?
No full textThis essay is a short response to Daniel Bonilla Maldonado's contribution, »Beyond the State: Can State Law Survive in the Twenty-First Century?« to the recently published Cambridge History of Latin American Law in Global Perspective. While Bonilla sees progress in the movement from the centralized nation-state to the multicultural state, my essay argues for an appreciation of the values that motivated the creation of the unified state as a single constitutional order in the post-colonial period. This effort may have failed, but with that failure went a distinct and valuable idea of freedom
The Strange Career of Antisubordination
No full textConstitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. Scholars advancing the first view contend that the Clause prohibits the government from racially classifying people. But scholars promoting the second view argue that racial classifications are permissible--provided that the government does not engage in racial subjugation. On no issue have these competing perspectives clashed more intensely than affirmative action. Where the anticlassification view deems those policies unconstitutional for exhibiting race consciousness, the antisubordination view finds them permissible because they do not racially subjugate anyone. Conventional antisubordination scholars portray the concept's support for affirmative action as one part of its larger intellectual program that inexorably champions racial egalitarianism. This Article challenges that conventional account by demonstrating that antisubordination's career has been far more protean, complex, and--above all--strange than scholars typically allow. Some of the most reviled opinions in Supreme Court history were predicated upon antisubordination rhetoric, as that concept has been used both to challenge and to maintain racist regimes. Legal luminaries from across the ideological spectrum, moreover, have often contended that affirmative action marks Black and brown people as substandard. Indeed, it is impossible to understand last Term's decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College without foregrounding antisubordination's multiplicity. That decision introduced "antisubordination" into the U.S. Reports, reframed how affirmative action subjugates racial minorities, and witnessed the Justices talking past each other by wielding the concept in divergent fashions. Grappling with antisubordination's complexity remains urgent today because the theory has been exported to an ever-growing, astonishingly diverse array of legal domains. This Article contends neither that antisubordination must be abandoned nor that affirmative action should have been invalidated. To the contrary, it explores arguments designed to shore up antisubordination and to provide alternate grounds for affirmative action's constitutionality. It will no longer do, however, simply to ignore antisubordination's considerable complexity. By tracing the winding, peculiar path of antisubordination, this Article not only recasts Justice Clarence Thomas's much-debated jurisprudence but also clarifies our nation's garbled constitutional discourse
Abortion-Eugenics Discourse in Dobbs: A Social Movement History
No full textReferences to eugenics in recent abortion opinions—including Dobbs v.
Jackson Women’s Health Organization—have only begun to attract scholarly attention
as a distinctive form of constitutional discourse. In the early twentieth
century, the term “eugenic” appeared frequently in legal, scientific, and other
books, as a policy objective or subject of scientific study concerned with “improving”
the quality of the nation’s “racial stock.” After peaking in the 1910s,
use of the term steadily declined in the World War II era as Western democracies
came to repudiate the politics of Jim Crow and the Holocaust. Usage
spiked again at the turn of the century, a period when historians began critically
to examine the eugenics movement in Europe and the United States. As condemnation
of eugenics has grown, the term “eugenic” has become a term of
opprobrium—a way to shame or discredit
Administering a Democratic Industrial Policy
No full textIn Washington today, we are witnessing what many call the "return of industrial policy." Some argue that a new political economic paradigm is emerging, departing from the neoliberal order of the last several decades. High-stakes questions about how to administer industrial policy have followed, for good reason: industrial policy necessarily involves a great deal of administrative discretion. Yet we have no adequate literature discussing how that discretion should be deployed. Administrative law scholarship has largely ignored the distinctive tools of industrial policy, such as grantmaking, lending, government contracts and ownership stakes. These tools require flexibility and discretion, and often cannot be--and are not--constrained by conventional administrative law tools like notice-and-comment rulemaking or judicial review. The literature on industrial policy argues for bureaucratic autonomy and flexibility, but also has little account of how this power can be accountable in a democracy. This Article seeks to address this gap. We argue that we should view industrial policy as a developmental practice: it involves deliberate attempts to shape sectors of the economy to meet public aims writ broadly, rather than to serve values of wealth-maximation or national competitiveness. In order to be both effective and legitimate, we argue, industrial policy today requires concerted efforts to build administrative power sufficient to enable effective governance of the economy, including by experimenting with new kinds of conditionalities and public ownership structures. It must also build countervailing power to allow disorganized and marginalized groups to exercise influence over both the government and subsidy recipients. We map administrative tools that can help achieve these aims, arguing that by using them, we can help build industrial policy that does not merely subsidize particular sectors but advances shared goals for democratic development
Principles for just and rational policing
No full textPolice reform has long been a topic of heated debate in the United States. But it assumed new urgency and political significance
during the past decade, as national news has carried story after story about the killing of unarmed Black men and women at the hands of law enforcement officials. In 2015, not long after the death of Michael Brown in Ferguson, Mo., the American Law Institute (ALI) launched its Principles of the Law, Policing project to address pressing questions about law enforcement failures and to provide a written framework for building just and rational policing laws, policies, and practices — a framework that police
agencies and police reform advocates alike might agree on