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Thursday, July 11, 2013

Will Baude: Cited in the Supreme Court

This is the third in a series of posts about scholars cited this term in the U.S. Supreme Court.

Will Baude is a fellow at Stanford Law School and will join the University of Chicago Law School this year.  Baude After graduating from Yale Law School, he clerked for Judge Michael McConnell and Chief Justice John Roberts.

Congratulations on being cited in the Supreme Court.  What was the work and how was it used?

My article is Beyond DOMA: State Choice of Law in Federal Statutes, recently published in the Stanford Law Review.  It argues that striking down the Defense of Marriage Act (as the Court ultimately did in Windsor) would prompt a serious choice of law problem-- when a couple's same-sex marriage is lawful in one state but not another, does the federal government treat them as married?  Justice Scalia cited the article in his dissent, arguing that the choice of law problems I had identified provided a rational basis for upholding the statute.

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

Both, but it also depends on the particular project.  I wrote the DOMA paper in part because I was surprised that so many people thinking about the DOMA challenges either didn't understand the choice of law problem, or thought the answer was obvious (although not always the *same* "obvious" answer).

Do you do anything in particular to share your work with practitioners?

Not systematically.  I like to see my work mentioned on Twitter and blogs that practitioners may read, and I mentioned the article to practitioners I knew, but I didn't really have an outreach campaign.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

First, I think it's true (though of course not all of it is trying to be useful). 

Second, I don't think it matters.  As Judge Frank Easterbrook once put it: "A free mind is apt to err-- most mutations in thought, as well as in genes, are neutral or harmful-- but because intellectual growth flows from the best of today standing on the shoulders of the tallest of yesterday, the failure or most scholars and their ideas is unimportant. High risk probably is an essential ingredient of high gain."

Third, it would be nice if judges who complained about the uselessness of legal scholarship told us what specifically they would like scholars to address instead.

Are you happy with the way your work was used?

Mostly.  I didn't write the article with a strong view of DOMA's constitutionality either way, but I'm happy to see somebody on the Court thinking seriously about the choice-of-law consequences.

Posted by Jack Chin on July 11, 2013 at 04:15 AM in Scholarship in the Courts | Permalink


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