Latest News

Robert Bork’s Second Amendment

By Mark Pulliam | Oct 23, 2017

Readers of Law and Liberty may have noticed that I am a fan of Justice Antonin Scalia (for example, here and here). I am also an admirer of Robert H. Bork, whom my colleague John McGinnis has described as “the most important legal scholar on the right in the last 50 years.” Bork was a pioneer in both the field of antitrust law (with his influential 1978 book The Antitrust Paradox) and constitutional law, as the father of what we now call “originalism.” In his seminal 1971 article in the Indiana Law Journal, entitled “Neutral Principles and Some First Amendment Problems,”[1] and in his later best-selling books, The Tempting of America (1990) and Slouching Towards Gomorrah (1996), Bork eviscerated the “noninterpretive” theories of constitutional law that dominated the legal academy in the 1960s and 1970s.

I Heard the Voice of Scalia

By Mark Pulliam | Oct 5, 2017

Justice Antonin Scalia definitely had a way with words. Law students pore over his opinions not just for Scalia’s keen analysis but to delight in the verve of his prose—pungent, clear, combative, and always colorful. Scalia aficionados also savor his books and essays, which showcase his forceful rhetoric and deft pen. Alas, the body of Scalia’s judicial decisions and scholarship, although considerable, is finite. Fortunately, Scalia fans now have a treasure trove of new material to savor, in the form of a recently-released compilation of the late Justice’s speeches, entitled Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.

Lone Star Chamber

By Mark Pulliam | Sep 27, 2017

Texas’s top law officer, Ken Paxton, faces an unjustified legal gauntlet.

Desiccated by Judicial Dereliction

By Mark Pulliam | Sep 25, 2017

Originalism is a two-way street. Judges wishing to interpret the Constitution in accordance with its original public meaning must not import into their decisions policy proscriptions not actually derived from the text and structure of that document. Just as important is that textualism and originalism require judges to give force to all provisions of the Constitution, and not pick and choose which clauses to enforce.

Our Living (That Is, Amendable) Constitution

By Mark Pulliam | Sep 11, 2017

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

By Mark Pulliam | Sep 5, 2017

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.

Chip Merlin: Voss Law Firm Found Guilty of Fraud, Intentional Litigation Misconduct and A Pattern and Practice of Deficient Representation

By The SE Texas Record | Aug 25, 2017

I have written about the problem of the Voss Law Firm before in Policyholders Should Carefully Pick Their Lawyers — Voss Law Firm Loses Hundreds of Hurricane Lawsuits, and Is the Use of Runners and Cappers in Texas Going to Result in Prosecution of Lawyers and Public Adjusters. The problem with Voss is that they are a providing bad publicity for policyholders and honest policyholder attorneys fighting a very well-funded litigation and lobbying adversary: The insurance industry. A federal court judge found that the Voss Law Firm engaged in intentional litigation misconduct, fraud, and had shown a pattern and practice of deficient representation.

Texas Political Prosecution; Another dubious case against a politician who riled the status quo

By Opinion | Aug 21, 2017

Texas has a history of politicized prosecutions that attempt to destroy careers only to be thrown out of court. Think Tom DeLay and Rick Perry. The latest target is Texas Attorney General Ken Paxton, and on inspection the evidence and legal process against him so far look equally dubious.

How FACT Act would bring transparency to asbestos claims

By John Brieden and Morgan Little | Aug 14, 2017

Most Americans have seen those TV ads touting “billions of dollars” set aside for victims of mesothelioma, the lethal cancer associated with asbestos exposure. Few realize that these funds are also at the center of a national controversy that disproportionately affects military veterans.

Gavel to Gavel: Patent venue statute reinterpreted

By Kim Tran | Aug 10, 2017

In June the Supreme Court issued a decision in TC Heartland v. Kraft Food Group Brands that might lead one to believe that the Eastern District of Texas will no longer be the go-to district for patent infringement claims, and companies facing what they believe to be frivolous claims against them will not be forced to defend themselves outside of their home state. But the long-term effect of TC Heartland is still unclear. In TC Heartland, the Supreme Court held that “[residence]” under 28 U.S.C. § 1400(b), the patent specific venue statute that determines where a suit can be filed, refers only to the state of incorporation for domestic corporations.

Leaving Lochner Behind

By Mark Pulliam | Aug 8, 2017

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.

District Courts Disagree on Venue-Waiver Issues After TC Heartland

By Snell & Wilmer | Jul 28, 2017

At the end of May this year, the Supreme Court unanimously clarified the law on venue in patent infringement lawsuits (see here). For 27 years, litigants had relied on a Federal Circuit decision, VE Holding Corp. v. Johnson Gas Appliance Co. (1990), that allowed patent owners to file suit virtually anywhere an infringing product was sold. In TC Heartland v. Kraft Foods Group Brands, the Supreme Court limited venue, and district courts are reaching different conclusions about whether litigants have waived venue arguments by not asserting them before TC Heartland.

Americans with Disabilities Act: An Epic Tragedy of Good Intentions

By Mark Pulliam | Jul 27, 2017

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.

Abbott: Local Property Tax Burden Is Crushing The Texas Dream

By Gov. Greg Abbott | Jul 26, 2017

Everything is bigger in Texas - including, unfortunately, your property tax rate. In fact, Texas has one of the highest effective real estate tax rates in the nation. Only Illinois and New Jersey beat us. Let that sink in. Illinois. And New Jersey. That's unacceptable.

Governor Greg Abbott: Forced Annexation Is Un-Texan

By Gov. Greg Abbott | Jul 26, 2017

Forced annexation by cities — without a vote by the impacted property owners — is piracy by government, a tyranny of taxation without representation that would have made old King George proud.

Judicially Supervised Plunder

By Mark Pulliam | Jul 18, 2017

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

By Mark Pulliam | Jul 7, 2017

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

It's Time to Modernize NAFTA and Texas Knows How

By U.S. Sens. John Cornyn and Ted Cruz | Jul 7, 2017

When the North American Free Trade Agreement was enacted 23 years ago, an economic surge in Texas ensued thanks, in part, to a significant boost in trade with our neighbor to the south. Today, more than 380,000 Texas jobs hinge on free trade with Mexico. Agreements like NAFTA have strengthened our state's economy as a whole, too. More than a third of total goods, worth $92 billion, are exported from Texas to Mexico annually.

Lee, Cruz: In Trump era, it's time to reassess Western Hemisphere alliances

By U.S. Sens. Mike Lee and Ted Cruz | Jul 7, 2017

As citizens of the United States, we recognize the rights of foreign peoples to live and govern themselves as they see fit. Just as the American people would not tolerate another nation dictating to us how to run our country, we believe other people should be able to make their own laws free from outside interference.

The ADA Litigation Monster

By Mark Pulliam | Jun 14, 2017

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

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