Top News

Our Living (That Is, Amendable) Constitution

Mark Pulliam Sep. 11, 2017, 2:22pm

Proponents of “living constitutionalism” or other non-originalist theories of constitutional law sometimes argue that our now 230-year-old Constitution wasn’t designed for current social conditions. Prevailing attitudes on a variety of subjects have changed dramatically since 1787, critics of originalism say. Judges must be allowed to augment or update the Constitution to keep it “relevant.”

Let’s Bust Some 21st Century Trusts

Mark Pulliam Sep. 5, 2017, 7:09pm

During the Gilded Age, so-called “captains of industry” such as Andrew Carnegie, John D. Rockefeller, and J.P. Morgan led an industrial revolution that transformed the nation with technological innovation, creating for Americans unparalleled improvements in the average standard of living and amassing great personal fortunes in the process. The spectacular success—and enormous power—of these newly minted tycoons earned them the sobriquet “Robber Baron,” even as their ruthless business tactics, such as Rockefeller’s cartelization of the oil industry through trusts, fostered new laws to regulate anti-competitive business practices, notably the 1890 Sherman Act. These measures are called “antitrust” laws, an often-forgotten tribute to the dynastic Standard Oil Trust, which at its peak controlled the refining of 90 to 95 percent of all oil produced in the United States.

Leaving Lochner Behind

Mark Pulliam Aug. 8, 2017, 5:09pm

What prompts a man to change his mind on a serious matter after 35 years, and should the reversal be met with pride (for eventually getting it right), or chagrin (for taking so long)? For reasons of vanity, I’m going to take a positive tack and choose the former.

Americans with Disabilities Act: An Epic Tragedy of Good Intentions

Mark Pulliam Jul. 27, 2017, 9:09am

Looking back at the Americans with Disabilities Act, passed by Congress in 1990[1], one has to be struck by the extent to which the ADA’s lofty sentiments have been overwhelmed by its adverse results. If it’s true that the road to hell is paved with good intentions, then the ADA is a veritable Autobahn of wishful thinking gone awry. Yet no one seems inclined to reroute the ill-fated traffic; some states are even widening the highway with additional lanes.

Judicially Supervised Plunder

Mark Pulliam Jul. 18, 2017, 10:15am

The unexpected retirement of Judge Janice Rogers Brown, 68, from the U.S. Court of Appeals for the D.C. Circuit will trigger a well-deserved celebration of her extraordinary judicial career, both as a federal appellate judge (since 2005) and previously as a member of the California Supreme Court (1996 to 2005). It will be difficult for President Donald Trump to appoint a replacement that comes anywhere close to filling the shoes of the of the forceful, fearless, and independent Brown, whose nomination by President George W. Bush to the nation’s second most influential court in 2003 was delayed for two years by Democratic opposition.Despite a filibuster in the U.S. Senate, Brown was ultimately confirmed in 2005 by a 56 to 43 vote, when the so-called Gang of 14 reached an agreement to avoid Republicans’ invocation of the “nuclear option.” Hopefully, Brown will continue to serve on the D.C. Circuit as a judge with “senior status.”

Selective Outrage

Mark Pulliam Jul. 7, 2017, 2:11pm

Is Sen. Kamala Harris the victim of partisan politics, or its savvy practitioner and beneficiary?

The ADA Litigation Monster

Mark Pulliam Jun. 14, 2017, 2:32pm

A landmark law to protect the disabled has spawned senseless mandates, abusive lawsuits, and stratospheric costs.

Texas Supreme Court -- Model of Judicial Integrity, Unlike California

Mark Pulliam Jun. 13, 2017, 8:55am

The Texas Supreme Court has a unique structure, reflecting the state’s stubbornly independent-minded culture. Most state supreme courts have jurisdiction over civil and criminal cases and have seven (or fewer) members, who are appointed by the governor and face the voters — if at all — only for periodic “retention” elections. The Texas Supreme Court, in contrast, hears only civil appeals (criminal cases are decided by the co-equal Texas Court of Criminal Appeals) and has nine members, all of whom are subject to statewide partisan elections. The last feature is quite unusual; only seven states select judges in this manner. Despite this distinctive design, the Texas Supreme Court succeeds at steering a steady jurisprudential course in a cautious, low-key style.

Fake Law by Fake Judges

Mark Pulliam May 27, 2017, 2:33pm

Brazen judges openly legislating from the bench are confirming the widely-held public perception that activist courts are out of control. As a lawyer practicing for three decades in the plaintiff-friendly stronghold of California, within the jurisdiction of the notorious Ninth Circuit, I witnessed many instances of judges—state and federal—slanting their decisions against disfavored parties, such as insurance companies, corporate employers, and deep-pocketed defendants.

Lone Star Lilliput

Mark Pulliam May 16, 2017, 3:00pm

Complacent Texas taxpayers have become captives of their rent-seeking civil servants.

Plain Talk about Law School Rot

Mark Pulliam May 7, 2017, 12:27pm

The legal academy is a strange place. It differs from other intellectual disciplines in that legal scholarship is published mainly in student-edited law reviews, not peer-reviewed journals. Most faculty members at elite law schools have never practiced law, or have done so only briefly and usually without professional distinction. The curricula at many of the nation’s law schools are larded with trendy courses devoted to identity politics and social issues du jour. Elite law schools eschew the teaching of “nuts and bolts” fundamentals, deriding such practical instruction as resembling a “trade school.”

Whining About Article III

Mark Pulliam Apr. 26, 2017, 9:58am

The latest tract by Erwin Chemerinsky, liberal law professor and dean of the University of California at Irvine School of Law, is depressingly familiar. Like his Enhancing Government: Federalism for the 21st Century (2008), The Conservative Assault on the Constitution (2011), and The Case Against the Supreme Court (2014), his new book is a diatribe masquerading as legal scholarship. The usual villains—conservative Supreme Court justices, malevolent government officials, rapacious corporations, racist police officers—are pitted against the wrongly accused, helpless consumers, and oppressed victims of discrimination.

Implementing Obergefell: An Addendum

Mark Pulliam Mar. 24, 2017, 8:49am

In a prior post, I discussed the Pidgeon v. Turner case, now pending before the Texas Supreme Court, involving a taxpayer challenge to same-sex spousal benefits.  Oral argument was held on March 1. The taxpayers challenging the city of Houston’s policy of granting same-sex spousal benefits to city employees were represented at oral argument by Jonathan Mitchell, a former Scalia clerk, former Texas solicitor general, and now a visiting professor at Stanford law school. The city of Houston was represented by Douglas Alexander, a leading appellate practitioner in an Austin law firm whose partners include former Texas Chief Justice Wallace Jefferson. The oral argument was superb, and both counsel fielded numerous questions from the fully-engaged justices.

Can Activist Judges Be Controlled?

Mark Pulliam Mar. 21, 2017, 9:22am

The disquieting spectacle of three unelected judges (all appointed by President Barack Obama) enjoining the signature initiative of the newly inaugurated President Donald Trump, without even citing the statute—8 U.S.C. section 1182(f)—that expressly authorizes the action they just stopped, has focused public attention as never before on the threat posed by liberal judicial activism to our system of self-government.

Reclaiming the Federal Judiciary: Start with the Fifth Circuit

Mark Pulliam Feb. 27, 2017, 12:16pm

The widely publicized judicial resistance to President Donald Trump’s executive order temporarily limiting entry into the United States by foreign nationals from certain countries has focused public attention as never before on the enormous power wielded by activist judges.

Lone Star Justice

Mark Pulliam Feb. 20, 2017, 6:47pm

Is Texas’s attorney general a corrupt officeholder or an innocent official being railroaded by political rivals?

Implementing Obergefell: Who Decides the Scope of a Newly Minted Right?

Mark Pulliam Feb. 7, 2017, 1:20pm

The Supreme Court’s fractured decision in Obergefell v. Hodges (2015) required states to recognize same-sex marriage. Obergefell came less than 30 years after Bowers v. Hardwick,[1] in which the court refused to recognize a right to engage in homosexual sodomy. In changing its mind, the Court effectively amended the U.S. Constitution with its Delphic utterances.

Neil Gorsuch is Just Round One in the Fight for the Supreme Court

Mark Pulliam Feb. 1, 2017, 1:01pm

President Trump’s nomination of 10th U.S. Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court will be met by fierce resistance by Democrats in the Senate and unrelenting demagoguery from left-wing groups and media outlets. About that there can be no doubt. (American Greatness readers may recall a reference to Gorsuch in my December 22 article, “The Trump Court: SCOTUS Could Stand Some Disruption.”)

Will a Tiny, Blind, Subterranean Bug Be the Undoing of the Federal Leviathan?

Mark Pulliam Jan. 24, 2017, 9:40am

In 1942, deciding the case of Wickard v. Filburn, the U.S. Supreme Court deemed the wheat grown by an Ohio farmer purely for his own use and consumption—not for sale—to “exert a substantial effect on interstate commerce.” This infamous decision led many to conclude that the scope of Congress’s authority under the Commerce Clause is essentially unlimited.

Libertarian Judicial Activism Isn’t What the Courts Need

Mark Pulliam Jan. 4, 2017, 11:12am

Were the Founding Fathers anarchists? Did the ideas contained in John Stuart Mill’s On Liberty, published in 1859, somehow inspire the delegates to the Constitutional Convention in 1787? Does the Constitution contemplate Robert Nozick’s minimal state, presaging his 1974 magnum opus Anarchy, State, and Utopia?