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Prof. Robert Post to Speak on "Fashioning the Legal Constitution: Culture, Courts, and Law," Nov. 20


Robert Post will deliver his inaugural lecture as David Boies Professor of Law, titled "Fashioning the Legal Constitution: Culture, Courts, and Law," on Thursday, November 20, 2003, at 4:30 p.m., in Room 127. The talk is free and open to the public.


Robert Post has chosen a fundamental theoretical question about the law as the focus for his inaugural lecture as David Boies Professor of Law: He inquires into the relationship of law to culture, asking how constitutional law can maintain its distinctively legal authority as it draws substance from ambient cultural values.

Post discusses these questions in the context of three recent important Supreme Court decisions handed down during the 2002-03 term: Nevada Department of Human Resources v. Hibbs, which upheld the Family and Medical Leave Act; Grutter v. Bollinger, which upheld affirmative action policies in higher education; and Lawrence v. Texas, which overturned a Texas anti-sodomy statute.

Post argues, "[C]onstitutional law and culture are locked in a dialectical relationship, so that constitutional law both arises from and in turn regulates culture.... [T]he Court in fact commonly constructs constitutional law in the context of an ongoing dialogue with culture, so that culture is inevitably (and properly) incorporated into the warp and woof of constitutional law."

Dissenting in the Lawrence case, Justice Antonin Scalia excoriated the majority for allowing cultural values to influence the articulation of constitutional law. He lamented that "the Court has taken sides in the culture war." Post discusses the implications of imagining constitutional law as independent of cultural disagreements, and concludes that such autonomy is neither possible nor desirable. He thus addresses the challenges that the absence of this autonomy poses for the creation of the legal authority necessary for judicial review. In Post's view, "Lawrence poses the question of how constitutional law can distinguish itself from culture and assume a distinctively legal authority."

Post, a 1977 graduate of YLS, became the first David Boies Professor this year, after teaching at the University of California, Berkeley, School of Law (Boalt Hall) for twenty years. The David Boies Professorship was established by friends and partners of Boies, who graduated from YLS in 1966 and was recently called "perhaps the highest profile lawyer in America" by Time magazine.