Mark Pulliam

Mark Pulliam is a contributing editor of Law and Liberty.

The Emersonian Jurisprudence of Oliver Wendell Holmes

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Legal scholars are endlessly fascinated by Oliver Wendell Holmes, Jr. (1841-1935). To some, he is “the great dissenter,” whose frequently quoted opinions were a harbinger of Legal Realism. Sympathetic biographers and playwrights have described him as the “Magnificent Yankee” and the “Yankee from Olympus.” To many libertarians, Holmes was an avatar of Progressivism, and the architect of the reviled notion of “judicial restraint.” Richard Posner celebrates Holmes, whom he regards as “the most illustrious figure in the history of American law,” as a pioneering legal pragmatist. Felix Frankfurter deemed him a “genius,” and Holmes’ 1881 book, The Common Law, has…

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Taming the Imperial Presidency

Uncle Sam and Executive Order

Going back to the tumultuous reign of Abraham Lincoln, political scientists have long been fascinated with the “Imperial Presidency,” and this interest was heightened further by the executive overreach that characterized the administration of Barack Obama. Some scholars contend that the modern presidency has morphed into a de facto monarchy, wielding power far in excess of what the Framers contemplated in Article II of the Constitution.

But that is only part of the problem. The republican form of government envisioned by the Founding Fathers rested on several essential principles that—unfortunately—became highly attenuated during the 20th century, including robust state sovereignty (federalism), the separation of powers, and the checks and balances inhering in each branch jealously guarding its power from “encroachments” by another. As James Madison memorably stated in Federalist 51, in order to keep the branches in check, “ambition must be made to counteract ambition.” It turns out that all three branches have been overly ambitious—some more than others.

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Darrow’s Dereliction

The reputation of Clarence Darrow (1857-1938) as one of the greatest of American lawyers rests largely on two courtroom performances: in the murder trial of Leopold and Loeb in Chicago in 1924, and the “Scopes Monkey Trial,” which took place in Dayton, Tennessee in 1925. Both were extensively covered by the news media and later became the subject of numerous plays, books, and movies. Darrow’s 12-hour-long closing argument at the sentencing hearing in the case (the teenaged “thrill killers” had confessed, and Darrow convinced them to plead guilty for tactical reasons), which persuaded the trial judge to spare the defendants’ lives, is regarded as a classic of courtroom oratory. The bizarre case was fictionalized in the 1956 book and 1959 film Compulsion, and inspired aspects of the play and Alfred Hitchcock’s 1948 movie Rope (and, some believe, the ransom delivery sequence in 1971’s Dirty Harry).

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Those Ever-Moving Goalposts

Football ready to be kicked.

Since the unexpected—and, in certain circles, inconceivable—election of Donald Trump as President, federal courts have aggressively obstructed his executive orders on immigration, leading to complaints that activist judges are staging an insurrection or even a coup d’état against a President they consider illegitimate. I’ve indulged in a bit of this commentary myself, but—unfortunately—the problem is deeper and more serious than a few rogue judges resisting Trump’s policies. Much of the nation’s elites, and especially the legal class that dominates the judiciary, are in a bipartisan revolt against the bourgeois social order and the constitutional loyalties it underwrites. Trump’s election has merely exposed the extent of the longstanding (and widening) cultural chasm that divides the lumpenproletariat (Hillary’s “deplorables”) from the self-anointed elites.

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Whining About Article III

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. Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable presents one-sided vignettes drawn from actual…

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Implementing Obergefell: An Addendum

The March 1 oral argument was an astounding anti-climax to a manufactured drama

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.

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Judicial Tyranny’s Final Frontier

Law and justice concept. Scales of justice, gavel, paragraphs, brown wooden background, place for text

Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.

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American Legal Thought in a Nutshell

dictionary in library

At first blush, Northwestern University law professor Stephen B. Presser’s just-released survey of legal education, Law Professors: Three Centuries of Shaping American Law, seems to lack a clearly defined mission. Presser, a self-described paleoconservative who says he was influenced by the journal Chronicles, where he has long served as legal affairs editor, has produced a treatise-length book (with 473 pages of text and nearly 1,400 footnotes) on a subject—legal academia—that many people regard as a bastion of left-wing ideology. Published by a scholarly press (West Academic) at a relatively hefty ($48) cover price, the book is aimed, at least in part, at a lay audience: “the general American public.”

Equal parts legal history, biography, and primer on jurisprudence, Law Professors defies categorization. Is it a text book, a reference work, a tutorial for pre-law students, a compilation of biographical profiles, a cautionary tale about the modern legal culture, or a synthesis of all the foregoing? The author calls it “a love letter to the teaching of law,” his vocation for over 40 years.

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Reclaiming the Federal Judiciary: Start with the Fifth Circuit

Lawyer And The Law

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. Many people who do not generally follow the doings of the judiciary were alarmed by the ruling of Seattle-based Judge James L. Robart enjoining the so-called travel ban, despite the dubious “standing” of the two states challenging it (Washington and Minnesota). Many laypeople also listened in dismay to the oral argument before the Ninth Circuit, and have read extensive criticisms of both the temporary restraining order issued by Judge Robart and the unsigned Ninth Circuit decision refusing to stay the TRO, neither of which cited the statute expressly authorizing President Trump to take the disputed action.[1]

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

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.

Under that document’s Supremacy Clause,[2] all states must follow Obergefell. But what is the scope of that obligation? Are all legal distinctions involving same-sex couples now invalid? A case pending before the Texas Supreme Court frames that question.

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