Vermeule: Democracy, Disagreement, and Authority: A Response to the Symposium on Common Good Constitutionalism :: SSRN

Democracy, Disagreement, and Authority: A Response to the Symposium on Common Good Constitutionalism by Adrian Vermeule :: SSRN

Democracy, Disagreement, and Authority: A Response to the Symposium on Common Good Constitutionalism

29 Pages Posted:

Adrian Vermeule

Harvard Law School

Date Written: November 13, 2024

Abstract

In this response to a recent symposium on Common Good Constitutionalism in the American Journal of Jurisprudence, I principally take up themes related to democracy, disagreement, pluralism, and authority. I emphasize that the classical legal tradition is teleological, oriented to performance standards rather than design standards. Thus it does not attempt to prescribe an identical set of constitutional and institutional arrangements for all polities everywhere, but asks whether constitutional arrangements are ordered to the common good and (thus) compatible with natural and divine law. Subject to those conditions, political authority is natural, inevitable, inescapable, and good. The possibility of social and political disagreement is just a precondition for all law, not an objection to the classical legal framework. None of this entails judicial supremacism in any form, which the classical legal tradition squarely rejects.

Keywords: common good constitutionalism, classical legal tradition, democracy, legal interpretation, judicial review

Suggested Citation:

Vermeule, Adrian, Democracy, Disagreement, and Authority: A Response to the Symposium on Common Good Constitutionalism (November 13, 2024). Available at SSRN: https://ssrn.com/abstract=

The End of the Synod… | Commonweal Magazine

The End of the Synod… | Commonweal Magazine

By Massimo Faggioli (Villanova)

When Francis was elected pope in 2013, “synodality” was a technical term used mostly by ecclesiologists and Church historians. But a synodal Church was the hope of many who did not have the word for it. The conclusion of the second assembly in October did not necessarily satisfy those hopes. But the process and the Final Document suggest that Catholicism is moving in the direction of a more communional, participatory, and missionary Church—if slowly.

The assemblies of October 2023 and October 2024 had the difficult task of slowing down runaway local synodal experiences (Germany, for example) while at the same time spurring synodal momentum in churches where it was lacking (including some U.S. dioceses). The model Pope Francis had in mind was Latin American, infused with Jesuit practices. The process has been complex—conversations at the local, national, and continental levels, and then at the central level. It differed from previous synods and Vatican II, where the restitutio to the local churches of what was elaborated at the center took place formally only at the end of the Synod’s assembly in Rome. But there was a sensible improvement from the first assembly to the second. The first took the form of a “conversation in the Spirit,” with little or no integration of theological expertise. But the intersession and the second session of October 2024 corrected this in important ways—providing evidence that theology still matters. 

Another difference from previous synods was the way information was imparted to the public. In the past, the speeches that participants delivered during the proceedings provided a view of what was developing. This time, the media had limited access to the proceedings, so as to allow participants to speak more freely while also encouraging them to focus on the spiritual dimension—while also limiting the likelihood of it being covered as a media event (this succeeded only in part). But there were daily press conferences with speakers chosen by the Synod’s leaders. The feed available to the public had a feel akin to a World Youth Day split: between the 350 attendees and their followers “sharing” their enthusiasm, and the rest of the Church that was not in Rome. The social dynamics of the “peri-council” at Vatican II and its predecessors—theological work in informal meetings and evening lectures—turned into the social-media Synod: selfies and photos of colleagues’ and friends’ reunions, dinners, and gelato. Synodality as communion and participation now must take into account the digitalization of religious and ecclesial identities—a reality that simply didn’t exist at synods of Francis’s predecessors. 

The Church’s work on synodality since 2021, locally and in Rome, has been important. If the Synod on Synodality didn’t settle on a clear preference for a theory or theology of synodality, it did settle on a style: one based on Vatican II.

Stephen Vladeck | Will the Supreme Court Stand Up to Trump? - The New York Times

Opinion | Will the Supreme Court Stand Up to Trump? - The New York Times

By Stephen I. Vladeck

Mr. Vladeck is a professor at Georgetown University Law Center.

Because of all that has happened since President-elect Trump’s first term in office, it is easy to forget that the Supreme Court repeatedly stood up to him during those chaotic four years.

The court impeded Mr. Trump’s initial efforts to ban people from six Muslim-majority countries from entering the United States. It blocked Mr. Trump’s attempt to put a question on the 2020 census asking whether the respondent was a U.S. citizen. It rejected his effort to rescind the program that shields people brought to the United States as children from deportation and allows them to work. It ruled against him in a high-profile subpoena dispute. And it sat on its hands as Mr. Trump and his supporters tried to use the legal process to challenge the results of the 2020 election.

Mr. Trump won some big cases, too, but his track record was surprisingly poor for a Republican president before a Supreme Court with a majority of Republican-appointed justices.

Now, with Republicans looking likely to control both chambers of Congress by the time Mr. Trump is inaugurated for his second term on Jan. 20, and with fewer moderating influences within Mr. Trump’s own party to restrain him, it seems inevitable that the court will once again be the last institution standing between Mr. Trump and whatever he wants to do.

Lawfare What does a second Trump term look like? video

 

Unjust Enrichment in Law and Equity by Jennifer Nadler :: SSRN

Unjust Enrichment in Law and Equity by Jennifer Nadler :: SSRN

Jennifer Nadler

York University - Osgoode Hall Law School

Date Written: October 17, 2024

Abstract

In Moses v Macferlan, Lord Mansfield used money had and received, a common law money count, to provide relief in a case where an action’s outcome failed to align with the actor’s intention. In the First Restatement of Restitution, Warren Seavey and Austin Scott gathered together all cases, quasi-contractual and equitable, under the single principle that ‘a person who has been unjustly enriched at the expense of another is required to make restitution to the other.’ These two influential acts of fusion between common law and equity have caused a great deal of confusion in the scholarship and jurisprudence on unjust enrichment. With the fundamental differences between quasi-contract and equitable unjust enrichment obscured, scholars and judges have struggled to find the single principle or core case that unifies liability in what is now called the law of unjust enrichment. I argue that we can resolve the puzzles of unjust enrichment by rejecting the fusionist claims that started them all – that is, by distinguishing cases of quasi-contract (the common law money counts) from cases of equitable unjust enrichment – and by recognizing that each has a distinctive normative foundation. Quasi-contract, like other common law doctrines, is grounded in respect for the freedom and equality of agents conceived as beings with the capacity for free choice. Quasi-contract is concerned with the objective significance of external acts like requests and agreements on terms; it is not concerned with the frustration of the plaintiff’s particular purpose in acting. Equitable unjust enrichment, like other equitable doctrines that attend to mistakes, expectations, and intentions, is grounded in concern for individual autonomy. It recognizes that a court, as a public institution attuned to law’s self-imposability, cannot enforce an alienation of property with indifference to the way in which it may fail as an expression of the individual’s purposes and reasons for action.

Keywords: Unjust enrichment, quantum meruit, equity

Suggested Citation:

Nadler, Jennifer, Unjust Enrichment in Law and Equity (October 17, 2024). Osgoode Legal Studies Research Paper No.4990834, Accepted for publication in the University of Toronto Law Journal, Available at SSRN: https://ssrn.com/abstract=4990834 or http://dx.doi.org/10.2139/ssrn.4990834

Catholic reaction to Trump's 2024 election win falls along ideological lines | National Catholic Reporter

Catholic reaction to Trump's 2024 election win falls along ideological lines | National Catholic Reporter

By NCR Staff

With a mix of emotions that fell along ideological lines, Catholics awoke to the early morning news Nov. 6 that Donald Trump had secured a second term in the White House.

Trump's supporters touted his victory over Vice President Kamala Harris as a triumph for a nation worried about the economy and moving to the right, while opponents expressed fears his return to the White House opens a dark and uncertain period for American democracy.

Archbishop Timothy Broglio, president of the U.S. Conference of Catholic Bishops and head of the Archdiocese for the Military Services, USA, congratulated Trump for his win and stressed that now the task is to "move from campaigning to governing" and to "transition peacefully from one government to the next."   

Broglio said the Catholic Church is "not aligned with any political party, and neither is the bishops' conference. No matter who occupies the White House or holds the majority on Capitol Hill, the Church's teachings remain unchanged, and we bishops look forward to working with the people's elected representatives to advance the common good of all."

He also said Christians and Americans "have the duty to treat each other with charity, respect, and civility, even if we may disagree on how to carry out matters of public policy." He asked for Mary's intercession to guide leaders to "uphold the common good of all and promote the dignity of the human person, especially the most vulnerable among us, including the unborn, the poor, the stranger, the elderly and infirm, and migrants."

Editorial: Hope in a time of darkness | National Catholic Reporter

Editorial: Hope in a time of darkness | National Catholic Reporter

We now must live with our worst fears.

The incompetent, dishonest, divisive and authoritarian-prone Donald J. Trump again has been elected president of the United States. In time, volumes of books will attempt to explain this colossal lapse of judgment. Sooner explored are the dire consequences of this election for our nation, wider human family and the planet.   

For now, as we embark on an uncharted journey, allow no time for debilitating self-pity or anger. Shed these temptations for the sake of individual and collective health. We need balance and wholeness to move forward while protecting the most vulnerable. We need mental acuity to decide how to support each other and our nation's democratic institutions.

We are not the first to face such darkness; we now join countless others living uncertain lives amidst political turmoil. We can learn from them, first by taking less for granted and then by reaching out to them and the rest of the human family to know better how to keep the faith, build courage and sustain resilience and resistance. We need each other more than ever to avoid doubt and to hold fast to principles of fairness, decency and truth. So, how large is this community from whom we need this encouragement? It is global, crosses cultures, races and religions and reaches back generations

*****

We will endure Donald Trump and his sycophants. His time will pass. Sadly, he will cause significant damage. However, we can, indeed we must, limit this damage through our unceasing resolve. As active witnesses of justice and mercy, we will transform darkness into light and weakness into strength for ourselves and others. Every act of love, every gesture of kindness and healing builds the nation that, for now, seems to elude us.

Hope is not a mere feeling. Hope is a choice we make every day. When we choose hope, we embody the essence of our Christian calling — a calling to be agents of change and witnesses of the love our nation so desperately needs, now more than ever. 

Ralph Wolf - Civil Court

Proud to celebrate my friend and former student's move to the Bench.

Judge Of The Civil Court 5th Municipal Court District (New York County)

• Ralph L. Wolf (Democratic): 99.24%

 Ralph Wolf for Civil Court

Induction December 18, 10 AM

Trump Attorney Chesebro Suspended by New York Court

State of New York Supreme Court, Appellate Division Third Judicial Department 

Decided and Entered: October 31, 2024 PM-213-24

 ________________________________ 

In the Matter of KENNETH JOHN CHESEBRO, an Attorney. 

MEMORANDUM AND ORDER ON MOTION (Attorney Registration No. 4497913) 

Calendar Date: October 10, 2024

________________________________ 

PM-213-24 Chesebro.pdf

Thirty five years ago I picked up the Saturday morning New York Times and saw a squib that the Supreme Court had accepted a case Jason Daubert v. Merrell Dow Pharmaceuticals.  The appeal challenged the admission of evidence that an anti-nausea drug Bendectin blocked the development of healthy bone in utero.  The claim was plausible but plaintiffs' experts could point to no definitive statistical or widely accepted opinion evidence to establish a causal connection.    Junk Science! was the battle cry of pharmaceutical companies eager to avoid liability - particularly for such dramatic injuries.

I dialed long distance information and got the number of the lawyer who had filed the petition for certiorari. - Kenneth Chesebro, a young protege of Harvard's lion of constitutional law Laurence Tribe.

I had represented trial lawyers and the CIO in similar challenges in New Jersey.  I cited our successes and volunteered my time.  That began months of work on a team of lawyers and law professors mustered by the plaintiffs trial lawyers organization Association of Trial Lawyers of America.

Chesebro was a principal brief writer for Georgetown professor Michael Gottesman.  Justice Harry Blackmun wrote the majority opinion calling for trial judges to be "gatekeepers" but not final judges of the facts.  The case established the framework used to this day in Federal Rule of Evidence 702.  Expert opinion testimony must be based on reliable principles and methods" which are "reliably applied" to the facts of the case.  The transformation of jury trial into battles of experts was complete.

Despite his Massachusetts Avenue office and Harvard pedigree Chesebro drifted into the Trump orbit.  He was in the January 6, 2021 crowd at the Capitol which disrupted the legal transfer of power.  He helped devise and implement  scheme to submit  as valid a slate of unsuccessful Georgia electors who were pledged to Donald J. Trump, the defeated candidate for President.  Indicted  as a co-conspirator of the former President,  Chesebro pleaded guilty rather than face trial.     The Appellate Division of the New York Supreme Court has declared

Count 15 of the indictment alleged that respondent, along with Donald] Trump, [Rudy] Giuliani, John Eastman and others, unlawfully conspired in Georgia between December 6, 2020 and December 14, 2020 to knowingly file, enter and record a document entitled "Certificate of the Votes of the 2020 Electors from Georgia," in a court of the US, while having reason to know that the document contained a materially false statement. Specifically, the Certificate wrongfully stated that the signatories thereof were "the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Georgia." Additionally, count 15 alleged that defendants David Shafer, Shawn Micah Tresher Still, and Cathleen Alston Latham – but notably not respondent – acting as co-conspirators, had placed in the US mail a document addressed to the Chief Judge of the US District Court for the Northern District of Georgia, with such act being an overt act to effect the object of the conspiracy.

His career in ruins Chesebro, who now resides in Puerto Rico finds himself unable to practice law in Massachusetts,, California, Florida, and Illinois.