Academic

Judge Diane Wood's Extra-Judicial Writings

By Alfred Brophy

I'm recycling a post from last May, dealing with last year's Supreme Court speculation.  With all the discussion of the possible nomination of Judge Diane Wood to the Supreme Court, it may be of some interest....

What has Judge Wood written in law journals that might be discussed in confirmation hearings?  Of course she's written a ton of antitrust, which will probably strike most readers as really "inside baseball."  That includes something in the Harvard Journal of Law and Public Policy, "International Law and Federalism: What Is the Reach of Regulation."  (Availalble from hein-on-line for those coming from institutions with a subscription).  There's stuff on federal courts, like a piece on fine-tuning the anti-injunction act, which appeared in the BYU Law Review back in 1990.  (Not going to excite much discussion in the confirmation hearings, I'd imagine.)  

But speaking of international law, there's Judge Wood's contribution to a discussion on "What's Wrong With International Law" in the first issue of the Chicago Journal of International Law.  Judge Wood's contribution was entitled  "Diffusion and Focus in International Law"  (1 Chi. J. Int'l. L. 141 (2000)).  Again, I wouldn't think this will draw a ton of attention, given how nuanced she is.  It seems really moderate--though I can never tell if any talk of international law will excite discussion.  For instance, she says, at 143-44:

 No one needs to be told that the world has shrunk, that human rights violations in one part of the world are not only morally reprehensible but also have practical repercussions elsewhere, that environmental problems demand international solutions, that weapons of mass destruction know no boundaries, and that the world has become a single economic unit. The question instead is how to bring our laws and legal institutions into line with this reality. Here, in the middle ground between the philosophy and cookbooks that have largely characterized international legal scholarship, the need for creative thinking and innovative scholarship is pressing. 

And, then there is Judge Wood's moderate, balanced, nuanced speech, the James Madison Lecture at NYU, "Our 18th Century Constitution in a 21st Century World" (80 N.Y.U. L. Rev. 1079 (2005)).  It may be getting some airtime--probably a lot of airtime, actually.  Her introduction is as follows:

Fine wines and Stradivarius violins improve with age, taking on greater richness and depth as the years go by. For many, if not most, other things in today's frenetic world, value is evanescent. To be old is all too often to be out of date and ready for disposal. In this paper, I explore which conception of age better describes our Constitution--now 215 years old. Is this eighteenth century document, along with its eighteenth centuryBill of Rights and other seventeen Amendments, still up to the job? How well is it serving the demands we are placing upon it, particularly in the area of individual rights, or what international scholars call human rights?

One's answer depends critically on which model of constitutional interpretation one chooses: the originalist approach or the dynamic approach. While there may be a certain attraction to so-called ?plain language? literalism, the Constitution, when viewed in that light, fares badly as a charter for twenty-first century America. On the other hand, while the dynamic approach has prevailed over time, for the most part, and allowed the Constitution to adapt to the demands of a modern society, this approach has proven vulnerable to criticism.

... The basic charter that suited a small, relatively powerless, rural economy with a population of 3.9 million now serves a global superpower of nearly three hundred million citizens, where economically the relevant stage is the entire world, where national and global communications are instantaneous, and where it is easier to get from New York to Honolulu than it once was to get from New York to Philadelphia.

But not all have welcomed this achievement. The doctrines the Supreme Court has used to allow the Constitution to grow with the times have been hotly contested. Many people today question whether the Court has strayed too far from the original intent of the Framers. They also assert that it is not proper to look to foreign experience when we consider which human rights have constitutional status. While critics are right to note that some of the most important constitutional developments rest on what some have called the ?unwritten Constitution,? this does not mean that we should reject them. The price of doing so would be far too high both for the structural provisions of the Constitution and our commitment--both domestically and internationally--to the protection of human rights. Rejection would be tantamount to an unnecessary conclusion that the Constitution has indeed outlived its usefulness. It is time, therefore, to end the long-standing and unproductive methodological debate over ?originalism? versus ?dynamism? or ?evolution? and focus instead on how, as a substantive matter, we should interpret the Constitution in the twenty-first century, and what it has to say on questions unimaginable to our eighteenth- century Framers.

For me one of the great parts of confirmation hearings is the chance to engage with a person's scholarship and see how it is read and responded to by politicians and the public.  This could be a lot of fun for those of us looking on from the side, especially those of us interested in our  constitution's history and notions of "popular constitutionalism."

Close readers of the faculty lounge may recall that I wrote some about Barak Obama's legal writing last year, as well as his service as Harvard Law Review president and other work that was linked to him.  And whenever we're talking about Obama and law reviews, it's fun to talk aboutObama law review trivia.

Update:  I have just learned that I'm late to this discussion.  The NRO has already been talkingabout Wood's "18th century Constitution in a 21st Century world."  I suppose it's entirely possible that exactly what the NRO finds problematic about Wood's ideology is pleasing to the White House.  We'll all know soon.

Update 2:  I now see that NRO's been talking about Jeff Rosen's praise for Judge Wood.  I think academics will particularly enjoy this paragraph (they may or may not agree with it, but it's amusing prose):

Rosen?s case rests almost entirely on praise from three of Wood?s academic colleagues at the University of Chicago?Martha Nussbaum, Richard Epstein, and Geoffrey Stone.  Legal academics are prodigal in heaping undeserved praise on each other, and Stone?s praise in particular??very careful,? ?respectful of precedent,? ?a craftsperson,? ?not in any way result-oriented??ought to be regarded as a contraindicator of quality, given how wild his rantings are (see, for example, here,here and here, including links within those posts). 

Ah, well, never a dull moment.  As I said before, we'll all know how this plays out soon.

Update 3 (as of April 19, 2010): You may also be interested in this post on the senior theses (and other early writings) of the now-famous, which includes a link to Judge Wood's note in the Texas Law Review.

Full post as published by The Faculty Lounge on April 19, 2010 (boomark / email).