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2011 William Howard Taft Lecture on Constitutional Law

Thursday, October 27, 2011
12:15 - 1:15 p.m.
College of Law - Room 114

The archived version of the webcast will be available soon.

Michael C. Dorf
Robert S. Stevens Professor of Law, Cornell University Law School

The University of Cincinnati College of Law is honored to present Michael C. Dorf, Robert S. Stevens Professor of Law at Cornell University College of Law, as the 2011 William Howard Taft lecturer. The title of his lecture is “Tainted Law.”

In his lecture, Professor Dorf’s will discuss circumstances in which a repealed provision of law “taints” current law. Drawing on examples of slavery, segregation, and women's equality, he will explore the implications of tainted law for constitutional interpretation. He will also discuss whether the Constitution as a whole is tainted by its past entanglements with injustice, and if so, what should be done about it. The abstract of Professor Dorf’s paper, “Tainted Law,” which will soon be printed in the University of Cincinnati Law Review, explains it well. He says:

Laws do not necessarily cease to have legal effect after they are fully repealed or superseded. A repealed law may form part of the pedigree of an operative law, and the operative law’s constitutionality may turn on that pedigree. For example, the constitutionality of a race-neutral public school pupil assignment system may depend on whether the school district’s law formerly assigned pupils by race. In addition, a repealed or otherwise superseded legal provision may shed light on the intentions or expectations of the persons originally responsible for adopting the legal provision. Under modes of interpretation that accord great significance to such intentions or expectations, that can lead to normatively unattractive results, such as the conclusion that the Fourteenth Amendment’s Equal Protection Clause does not forbid most forms of official sex discrimination. Truly unthinkable results may thus taint the mode of interpretation that leads to those results, rather than vice-versa. A sufficiently horrific pedigree can even taint the entire legal order. Accordingly, the prospect of “tainted law” has potentially far-reaching implications for legal interpretation, including constitutional interpretation.

Michael C. Dorf has written dozens of law review articles on constitutional law and related subjects. He is the co-author (with Laurence Tribe) of On Reading the Constitution (Harvard University Press, 1991), the co-author (with Trevor Morrison) of The Oxford Introductions to U.S. Law: Constitutional Law (Oxford University Press, 2010), the editor of Constitutional Law Stories (Foundation Press 2004, second edition 2009), and the author of No Litmus Test: Law Versus Politics in the 21st Century (Rowman & Littlefield, 2006). Professor Dorf writes a bi-weekly column for Justia’s free web magazine Verdict and posts several times per week on his blog, Dorf on Law. A graduate of Harvard College and Harvard Law School, he spent the year between college and law school as a Rotary Scholar at Victoria University of Wellington, New Zealand, playing rugby and co-authoring three articles for refereed physics journals. After law school, Professor Dorf served as a law clerk for Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit and then Justice Anthony M. Kennedy of the Supreme Court of the United States. He has represented clients on a paid and pro bono basis, including a constitutional challenge to NAFTA in the D.C. Circuit and a defense of affirmative action on behalf of the Association of American Law Schools (“AALS”) as amicus curiae in Grutter v. Bollinger in the U.S. Supreme Court. He was the main author of the AALS amicus brief in support of the winning side in the 2010 Supreme Court case of Christian Legal Society v. Martinez. Before joining the Cornell faculty, Professor Dorf taught at Rutgers-Camden Law School for three years and at Columbia Law School for thirteen years. At Columbia, he was Vice Dean from 1998-2002 and when he left, was the Isidor & Seville Sulzbacher Professor of Law.

About the Taft Lecture

The William Howard Taft Lecture on Constitutional Law was established in 1986 to honor the contributions of the only person to have served as both President (1909-1913) and Chief Justice (1921-1930) of the United States.

William Howard Taft was born in Cincinnati on Auburn Avenue in 1857. He is a graduate of the Cincinnati Law School, the predecessor of the University of Cincinnati College of Law. He served as Dean of the newly founded University of Cincinnati Law Department from 1896-1900 and was instrumental in the merger of this department and his alma mater in 1897.