As flattered as I was to attract George Will’s attention—in his 4th of July column, no less—being criticized by a Pulitzer Prize-winning essayist left me somewhat perplexed, for several reasons. Allow me to explain. First, although I have engaged Will directly in the past, he used his nationally-syndicated column to take issue with something I had written in response to someone else—specifically, Ed Erler (a disciple of Harry Jaffa) regarding Robert Bork’s view of the Constitution.
Protecting intellectual property is a critical component of our nation’s founding and is essential to strengthening our economy, however flawed jury awards disconnected from underlying legal doctrine could have disastrous effects on collaboration and innovation. The United States Constitution allows Congress to write laws granting “authors and inventors the exclusive right to their respective writings and discoveries”. In the spirit of this constitutional objective, the Uniform Law Commission promulgated the Uniform Trade Secrets Act forty years ago to establish clarity about what a trade secret is and how misappropriation of trade secrets should be punished. To date 47 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands have adopted the uniform code.
In January, the US Court of Appeals for Veterans Claims (CAVC) issued a landmark decision in Procopio v. Wilkie. This case established that US Navy veterans who served within the twelve nautical miles of the coast of the Republic of Vietnam ("blue water veterans") from January 9, 1962, to May 7, 1975, are entitled to VA disability compensation benefits for medical conditions shown to result from exposure to herbicides such as Agent Orange. This marks a change in the established VA law (38 USC § 1116), which since its implementation in 1991 has provided for presumptive benefits for Vietnam veterans who served in Vietnam during the specified time period and have a diagnosis of one of the medical conditions listed in the statute.
Last week, a Texas appeals court began the process of hearing an historic case between two real estate valuation companies that led to one of the largest trade secret verdicts in American history. While this recent hearing was focused on a discreet motion, the appeals court’s decision could have significant implications when considering the entirety of the case.
Across the country, many large cities sacrifice public safety to political correctness, catering to minority voters by hamstringing—or even demonizing–law enforcement. Some progressive cities, such as Los Angeles, San Francisco, and Seattle, openly condone urban chaos in the form of rampant homelessness and public drug use, despite local residents’ vociferous objections. Defying these trends, in one of the nation’s largest and fastest-growing cities, Austin Police Chief Brian Manley presides over the third-safest major metro area in the United States.
Utopian social movements often degenerate into unruly—and sometimes vicious—mobs. During the French Revolution, the slogan “liberty, equality, fraternity” quickly led to the guillotine as the Jacobins unleashed the Reign of Terror. We are witnessing a softer version of this at Harvard, America’s most elite university, where Ronald Sullivan, an African-American law professor, faces professional retribution for the sin of representing a (presumed innocent) client (Harvey Weinstein) accused of sexual assault. Harvard Law School professor emeritus Alan Dershowitz denounced the incident as “The new McCarthyism comes to Harvard.”
San Antonio, a predominantly Hispanic city named for a Catholic saint, has persisted in its crusade against the popular fast-food chain Chick-fil-A. In reaction to the conservative religious beliefs of its owners, the city council has barred Chick-fil-A from operating at San Antonio’s airport. So far, advocates against the restaurant have the upper hand, though that could soon change. Voters will soon have an opportunity to weigh in on the controversy in a local election.
The concerns surrounding false news, or what is more commonly referred to as “fake news,” not only seems to be growing here in the United States but expanding across the globe, with countries stretching from Southeast Asia to the European Union combating inaccurate reporting.
When asked by Law & Liberty if I would be interested in reviewing Lawrence Wright’s new book, God Save Texas, I had mixed feelings. I greatly enjoyed two of Wright’s previous books, The Looming Tower (2006) and Going Clear (2013), both deeply-researched and impressively-reported works of nonfiction. Wright’s journalism also inspired the acclaimed documentary Three Identical Strangers (2018), which fascinated me. Wright is a Pulitzer Prize-winning author and longtime staff writer for The New Yorker, who happens to live in Austin, Texas (as I do), the state capital and the home of the flagship campus of the University of Texas. Wright is unquestionably a talented writer knowledgeable about his (and my) adopted state.
Over the past several years, there has been a dramatic increase in litigation brought by local governments across Texas utilizing outside lawyers hired on a contingent-fee basis. Much of this litigation has been driven by law firms that have engaged in aggressive marketing efforts, enticing local officials with the prospect of a financial windfall at no risk to them. The nature of these lawsuits varies widely, but includes numerous lawsuits against pharmaceutical manufacturers, automobile manufacturers, construction companies, and other businesses.
No one is surprised when cities like San Francisco, New York City, and Seattle enact policies driven by the latest progressive imperatives. In Texas, where I live, observers have long believed that a statewide Republican majority would insulate the Lone Star State from such pressure. Capital city Austin’s traditionally liberal politics—its unofficial slogan is “Keep Austin Weird”—have usually seemed like an exception to the statewide rule. But now it appears that San Antonio, the state’s second-biggest city (and seventh-largest in the U.S.), has gotten “woke,” too, blacklisting a well-respected business because of its owners’ political contributions and religious beliefs.
Claremont-trained political philosophers represent some of the strongest voices in conservative intellectual circles, but many of them share a flawed view of the Constitution, expressed vigorously—and sometimes splenetically—by the late Harry V. Jaffa. Edward Erler’s recent essay, “Don’t Read the Constitution the Way Robert Bork Did,” channels both Jaffa’s truculent spirit and the doctrinaire position of West Coast Straussians, complete with familiar—albeit irrelevant–references to Abraham Lincoln and the Declaration of Independence. Unfortunately, Erler’s essay illustrates why the Left’s conception of constitutional law is ascendant while conservatives continue to dither: Unlike progressives, discordant conservatives have been largely ineffective in articulating—let alone advancing—a coherent vision of constitutional law.
In the two years since Congress overhauled trade secret laws, a spike of court filings and a record-setting judgement could signal the opening of a new frontier in misusing intellectual property law reminiscent of patent trolling which has become a drag on economic growth.
Last year’s decision in Janus v. AFSCME (2018) is properly seen as a landmark ruling in the area of compelled speech (e.g., here and here), but it is more than that. By overruling Abood v. Detroit Board of Education(1977), the Supreme Court in Janus acknowledged that its extension of private-sector labor law precedents concerning union-security clauses to the public sector was erroneous. I have previously written about “the road to Abood” (here and here), and explained why the Court’s poorly-reasoned decisions under the National Labor Relations Act (NLRA) should not govern arrangements involving government employees. Justice Alito, who authored Janus and the decisions leading up to it, scathingly dissected the Court’s NLRA precedents, most of which were issued during the heyday of the Warren Court.