Scott Douglas Gerber

Title:

Professor of Law

Office:

Tilton Hall #177

Phone #:

419-772-2219

Fax #:

419-772-3514

Email:

s-gerber@onu.edu

Biography:

Professor Gerber clerked for U.S. District Judge Ernest C. Torres of the District of Rhode Island and practiced with the Boston-based law firm Bingham, Dana & Gould (now Bingham McCutchen). He is a member of the Massachusetts, Colorado, and Virginia bars, as well as the U.S. Supreme Court bar. He is the 2002, 2009, 2011, and 2012 winner of the Fowler V. Harper Award for excellence in legal scholarship and the 2004 and 2013 recipient of the Daniel S. Guy Award for excellence in legal journalism. He held the Ella & Ernest Fisher Chair in Law at Ohio Northern University from 2008-10. In 2008, he was appointed to a two-year term on the Ohio Advisory Committee of the U.S. Commission on Civil Rights. He was reappointed to a second two-year term in 2010 and to a third two-year term in 2012. StateStats.org named him one of the top law professors in Ohio.

Education:

Ph.D., University of Virginia
J.D., University of Virginia
B.A., College of William and Mary

Teaching Interests:

American Legal History
Constitutional Law

Faculty Activities

Books:

Mr. Justice: A Novel (Sunbury Press, 2011)

A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press, 2011)

The Law Clerk: A Novel (Ohio Northern University Press, as distributed by Kent State University Press, 2007)

The Declaration of Independence: Origins and Impact (CQ Press, 2002) (editor and contributor)

The Ivory Tower: A Novel (University Press of the South, 2002)

First Principles: The Jurisprudence of Clarence Thomas (New York University Press, 1999; expanded edition, 2002)

Seriatim: The Supreme Court Before John Marshall (New York University Press, 1998) (editor and contributor)

To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York University Press, 1995)

Articles:

"Liberal Originalism: The Declaration of Independence and Constitutional Interpretation," 63 Cleveland State Law Review 1 (2014) (invited symposium contribution)

"The Fact of Legal Fiction," The Bencher 18 (November/December 2013)

"Law and the Lively Experiment in Colonial Rhode Island," 2 British Journal of American Legal Studies 453 (2013)

"Teaching the Legal History You Write About," 53 American Journal of Legal History 410 (2013)

*also appeared as a chapter in Robert M. Jarvis, ed., Teaching Legal History: Comparative Perspectives (Wildy, Simmonds & Hill, 2014)

"Introduction to the Tribute to Victor L. Streib: An Ideal Role Model," 38 Ohio Northern University Law Review 407 (2012) (invited symposium contribution)

"William Penn and the Origins of Judicial Tenure During Good Behavior," 136 Pennsylvania Magazine of History and Biography 233 (2012)

"Concluding Thoughts from Ada, Ohio," 35 Harvard Journal of Law and Public Policy 671 (2012) (invited symposium contribution)

"Introductory Address: Justice for Clarence Thomas: An Intellectual History of Justice Thomas’s Twenty Years on the Supreme Court," 88 University of Detroit Mercy Law Review 667 (2011) (invited symposium contribution)

"Legal History as Political Science," 21 Law and Courts 19 (2011) (invited symposium contribution)

"Bringing Ideas Back In: A Brief Historiography of American Colonial Law," 51 American Journal of Legal History 359 (2011)

"The Origins of an Independent Judiciary in New York, 1621-1777," 28 Social Philosophy and Policy 179 (2011)
*also appeared as a chapter in Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul, eds., What Should Constitutions Do? (Cambridge University Press, 2011)

"The Origins of an Independent Judiciary in North Carolina, 1663-1787," 87 North Carolina Law Review 1771 (2009)

"The Origins of the Georgia Judiciary," 93 Georgia Historical Quarterly 55 (2009)

"The Court, the Constitution, and the History of Ideas," 61 Vanderbilt Law Review 1067 (2008)

"Justice Thomas and the Burning Cross," First Amendment Center Online (2007) (invited symposium contribution)

"Unburied Treasure: Governor Thomas Burke and the Origins of Judicial Review," 8 Historically Speaking 29 (July/August 2007)

"The Political Theory of an Independent Judiciary," 116 Yale Law Journal 223 (Pocket Part) (2007)

"The Politics of Free Speech," 21 Social Philosophy and Policy 23 (2004)
*also appeared as a chapter in Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul, eds., Freedom of Speech (Cambridge University Press, 2004)

"Corbin and Fuller's Cases on Contracts (1942?): The Casebook That Never Was," 72 Fordham Law Review 595 (2003)

"Robert H. Bork," Great American Judges: An Encylopedia (John R. Vile ed., ABC-CLIO, 2003)

"The Myth of Marbury v. Madison and the Origins of Judicial Review," Marbury versus Madison: Documents and Commentary (Mark A. Graber and Michael Perhac eds., CQ Press, 2002)

"An Ivy League Mystery: The Lost Papers of Arthur Linton Corbin," 53 South Carolina Law Review 605 (2002)

"Privacy and Constitutional Theory," 17 Social Philosophy and Policy 165 (2000)
* also appeared as a chapter in Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul, eds., The Right to Privacy (Cambridge University Press, 2000)

"On Ranking Public Law Programs," 9 Law and Courts 9 (1999)

"Would the Framers Impeach President Clinton?," 8 Law and Courts 4 (1998)

"Justice Clarence Thomas and the Jurisprudence of Race," 25 Southern University Law Review 43 (1997)

"The Quixotic Search for Consensus on the U.S. Supreme Court: A Cross-Judicial Empirical Analysis of the Rehnquist Court Justices," 91 American Political Science Review 390 (1997) (co-authored with Keeok Park)

"Judging Thomas: The Politics of Assessing a Supreme Court Justice," 27 Journal of Black Studies 224 (1996)

"The State of the Subfield: A View From the Bottom," 6 Law and Courts 3 (1996)

"Roger Sherman and the Bill of Rights," 28 Polity 521 (1996)

"The Republican Revival in American Constitutional Theory," 47 Political Research Quarterly 985 (1994)

"Reordering American Constitutional Law Teaching," 27 PS: Political Science & Politics 703 (1994)

"Whatever Happened to the Declaration of Independence? A Commentary on the Republican Revisionism in the Political Thought of the American Revolution," 26 Polity 207 (1993)

"Justice Clarence Thomas: First Term, First Impressions," 35 Howard Law Journal 115 (1992)

"The Jurisprudence of Clarence Thomas," 8 Journal of Law & Politics 107 (1991)

"Original Intent and Its Obligations: Rediscovering the Principles of the American Founding," 11 Hamline Journal of Public Law and Policy 1 (1990)

Book Reviews:

of John R. Vile, The Men Who Made the Constitution: Lives of the Delegates to the Constitutional Convention, 24 Law and Politics Book Review 238 (2014)

of Kevin R. C. Gutzman, James Madison and the Making of America, 22 Law and Politics Book Review 335 (2012)

of David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, 33 Reason Papers 212 (2011)

of David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, EH.Net, 27 June 2011

of George Athan Billias, American Constitutionalism Heard Round the World, 1776-1989: A Global Perspective (2009) and Mary L. Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (2008), 45 Tulsa Law Review 807 (2010) (invited contribution to a symposium on important recent books in law)

of Clarence Thomas, My Grandfather's Son: A Memoir, Findlaw.com, 4 December 2007

of Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review, 92 Journal of American History 1532 (2006)

of R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court, 101 Virginia Magazine of History and Biography 104 (2002)

of Samuel A. Marcosson, Original Sin: Clarence Thomas and the Failure of Constitutional Conservatives, 12 Law and Politics Book Review 360 (2002)

of Christopher E. Smith and Joyce A. Baugh, The Real Clarence Thomas: Confirmation Veracity Meets Performance Reality, 45 American Journal of Legal History 112 (2001)

of Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court and Mark Tushnet, Taking the Constitution Away from the Courts, 24 Harvard Journal of Law and Public Policy 309 (2000)

of Saul Cornell, The Other Founders: Antifederalists and the Dissenting Tradition in America, 1788-1828, H-Law (2000)

of Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction, H-Law (2000)

of Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship, 9 Law and Politics Book Review 379 (1999)

of Ronald Hoffman and Peter J. Albert, eds., The Bill of Rights: Government Proscribed, 86 Journal of American History 760 (1999)

of Howard Ball, Defiant Life: Thurgood Marshall and the Persistence of Racism in America, 2 Books-on-Law (1999)

of Anthony J. Sebok, Legal Positivism in American Jurisprudence, 9 Law and Politics Book Review 116 (1999)

of Douglas W. Kmiec and Stephen B. Presser, The American Constitutional Order: History, Cases, and Philosophy, 8 Law and Politics Book Review 401 (1998)

of Steven D. Smith, The Constitution and the Pride of Reason, 27 Perspectives on Political Science 228 (1998)

of Richard G. Stevens, The American Constitution and Its Provenance, 27 Perspectives on Political Science 189 (1998)

of Paul W. Kahn, The Reign of Law: Marbury v. Madison and the Construction of America, 85 Journal of American History 1494 (1998)

of Anita Hill, Speaking Truth to Power, Washington Times, 22 November 1997, C3
* reprinted in Washington Times Weekly, 14 December 1997, 27

of Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law and Jean Edward Smith, John Marshall: Definer of a Nation, 84 Journal of American History 658 (1997)

of Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law, Daily Press, 1 September 1996, H5, cols. 2-4

of William R. Casto, The Supreme Court in The Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth, 15 Journal of the Early Republic 673 (1995)

of John Marshall, John Locke: Resistance, Religion and Responsibility, 24 Perspectives on Political Science 249 (1995)

of Gary C. Bryner and A.D. Sorensen, eds., The Bill of Rights: A Bicentennial Assessment, 76 Social Science Quarterly 929 (1995)

of David A. Schultz, Power, Property, and American Democracy, 55 Journal of Politics 1181 (1993)

of Bruce A. Ackerman, We the People v.1: Foundations and Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse, 9 Journal of Law & Politics 232 (1992)

Op-Eds:

"A Hard Lesson From the UVA Sexual Assault Crisis," HuffingtonPost.com, 15 December 2014

"Obama Can’t Make Himself King," Lima News, 26 November 2014, 4A, cols. 2-5

"Affirmative Action and the Crisis in Higher Education," HuffingtonPost.com, 15 August 2014

"5th Circuit Thumbs Its Nose at U.S. Supreme Court in Racial Preferences Case," HuffingtonPost.com, 17 July 2014

*also appeared in Austin American-Statesman, 19 July 2014, A11, cols. 1-3

"The Declaration of Independence and the Constitution," HuffingtonPost.com, 1 July 2014

"The Whistleblower Protection Program Is Broken Too," HuffingtonPost.com, 19 June 2014

“Law and the Lively Experiment in Colonial Rhode Island,” Providence Journal, 18 June 2013, A15, cols. 2-5

"Race and Faculty Hiring," NAS.org, 18 January 2013 (as Nevin Montgomery)

"Mohamed Morsi, Read a Little John Adams," Washington Examiner, 27 November 2012, 25, cols. 1-2

"Upcoming Cases May Signal Clarence Thomas’ Moment," Washington Examiner, 14 November 2012, 30, cols. 1-2 *also appeared in Houston Chronicle, 18 November 2012, B9, cols. 1-6

"Why a Law Professor Writes Fiction," National Jurist, January 2012, 14

"It’s Not Thomas-Gate," National Law Journal, 25 July 2011, 42, cols. 1-4

"John Adams’ Supreme Court," Washington Times, 4 October 2010, B3, col. 4

"Elena Kagan and the Return to Feudalism," Findlaw.com, 7 June 2010 (co-authored with Kevin Hawley)

"A Judicial Experience Myth," National Law Journal, 9 March 2009, 22, cols. 2-4

"Roberts Can Do Better Than Consensus," Wall Street Journal, 26 July 2008, A7, cols. 1-3

"Blame Canada: The Arguments For and Against Increasing Federal Judicial Salaries," Findlaw.com, 1 February 2008 (co-authored with Kevin Hawley)

"Time to Close the Book," National Law Journal , 15 October 2007, 23, cols. 3-4

"A Graduation Missive on Elitism in the Law: or, as Larry David Would Put It, 'I need a little more flair. I don't have enough flair.'," Findlaw.com, 11 May 2007 (co-authored with Kevin Hawley)

"Chief Justice Roberts and the Misguided Call for Judicial Pay Raises," Jurist, 2 January 2007 (reprinted from 5 January 2006)

"Michigan's Controversial Proposition 2, Eliminating Affirmative Action in the State: A Good Example of Popular Constitutionalism?," Findlaw.com, 16 November 2006

"The Legal Professoriate's Case Against Judicial Review: Why the Academy is Wrong, And Why It Matters," Findlaw.com, 30 August 2006

"The Radicalization of American Legal Education, Revisited," Findlaw.com, 15 March 2006

"Chief Justice Roberts and the Misguided Call for Judicial Pay Raises," Jurist, 5 January 2006

"Why the Senate Should Confirm Judge Alito: The Democrats Liked Him Before, and They Don't Need to Love Him Now," Findlaw.com, 3 November 2005

"Bush Blinks and Miers Pays the Price," Jurist, 28 October 2005

"Harriet Miers and the Myth that Great Supreme Court Justices Must Be Former Judges from Elite Law Schools," Findlaw.com, 5 October 2005

"Roberts and Supreme Court Consensus," Jurist, 21 September 2005

"Replacing Justice O’Connor: What Would John Adams Do?," Jurist, 6 July 2005

"The Radicalization of American Legal Education," Findlaw.com, 30 May 2005

"Sen. Reid vs. Justice Thomas," Washington Times, 11 December 2004, A13, cols. 5-6

"Whom Would Kerry Select?," National Law Journal, 4 October 2004, 22, cols. 2-4

"Don't Abuse a Rare Process," National Law Journal, 8 March 2004, 22, cols. 2-4

"Allow Military Recruitment," National Law Journal, 15 December 2003, 34, cols. 2-4

"Justice Thomas and Mr. Jefferson," Legal Times, 5 May 2003, 60, cols. 1-3, 61, cols. 1-2

"A Naive Notion Gone Awry," National Law Journal, 7 April 2003, A18, cols. 1-3

"Marbury v. Madison: Law's Mixed Legacy," Toledo Blade, 22 February 2003, A9, cols. 1-4

"The Strong, Silent Supreme Type," Los Angeles Times, 29 December 2002, M5, cols. 3-6

"Whose Judges Are They?," Legal Times, 25 November 2002, 38, cols. 1-3

"Whatever Happened to Question 6?," Providence Journal, 22 January 2001, A9, col. 1

"High Court Rules R.I. has British System," Providence Journal, 30 July 2000, E8, cols. 3-5

"If It Reaches the Senate, the Chief Justice is Ready," Christian Science Monitor, 8 October 1998, 11, cols. 1-5
* also appeared in Hartford Courant, 9 October 1998, A21, cols. 1-5

"The Ideas of Justice Thomas," Washington Post, 28 July 1998, A15, col. 5
* also appeared in Daily Press, 26 July 1998, H6, col. 1

"Safeguards Against Abuse of Power Are Tested Again," Florida Times-Union, 5 February 1998, A15, cols. 1-3

"Say, What Was the American Revolution About, Anyway?," Richmond Times- Dispatch, 4 July 1996, A17, cols. 2-5

"Bout with Justice: Clarence Thomas Gets Bashed Again," Daily Press, 9 July 1995, H1, cols. 2-5, and H4, cols. 1-3
* also appeared in Virginia Gazette, 8 July 1995, 7A, cols. 1-3

"The Myth of Non-Partisan Consensus-Building on the High Court," Legal Times, 14 November 1994, 24, cols. 1-3, and 27, cols. 1-2 (co-authored with Keeok Park)

"Court Selection Should Be Merit Based," York Town Crier, 21 July 1993, 4, cols. 2-3

"Next President Could Have Huge Impact on the Supreme Court," Virginian-Pilot, 18 September 1992, A18, cols. 1-5

Sundry:

“The Supreme Court and the Uses of History,” 39 Ohio Northern University Law Review 435 (2013) (transcript of a debate with Gordon S. Wood)

“Political Theory and Judicial Activism,” 16 Green Bag 459 (2013)

“The British American Colonies and Comparative Subnational Constitutionalism,” International Journal of Constitutional Law Blog, 26 May 2013

"The Importance of Exploring the Colonial Origins of the United States Constitution," ConSource, 18 February 2013

Letter to the Editor, "Should We End Life Tenure for Justices?," New York Times, 14 April 2012, A16

"Summer Reading," National Jurist, March 2012, 38

"Clarence Thomas," 2 Encyclopedia of the United States Constitution 736 (David Schultz ed., Facts on File, 2009)

"The Declaration of Independence," 1 Encyclopedia of the United States Constitution 187 (David Schultz ed., Facts on File, 2009)

"William Cushing," The Yale Biographical Dictionary of American Law 141 (Roger K. Newman ed., Yale University Press, 2009)

"Clarence Thomas," 10 The New Encyclopedia of Southern Culture: Law and Politics 131 (Charles Reagan Wilson, James W. Ely Jr., and Bradley G. Bond eds., University of North Carolina Press, 2008)

Letter to the Editor, "Understanding Clarence Thomas," 8 Claremont Review of Books 8 (2008)

"Judicial Review before Marbury," 3 Encyclopedia of the Supreme Court of the United States 65 (David S. Tanenhaus ed., Macmillan, 2008)

"John Jay," 3 Encyclopedia of the Supreme Court of the United States 12 (David S. Tanenhaus ed., Macmillan, 2008)

"Seriatim Opinions," 4 Encyclopedia of the Supreme Court of the United States 374 (David S. Tanenhaus ed., Macmillan, 2008)

"Carolina Charter of 1663," North Carolina History Project Encyclopedia (2007)

"Clarence Thomas," 3 Encyclopedia of American Civil Liberties 1650 (Paul Finkleman ed., Routledge, 2006)

"Calder v. Bull (1798)," 1 Encyclopedia of American Civil Liberties 212 (Paul Finkleman ed., Routledge, 2006)

"The Supreme Court, Part I: The Least Dangerous Branch," 93 Journal of American History 971 (2006) (movie review)

"Justice Clarence Thomas," 2 Federalism in America: An Encyclopedia 641 (Joseph R. Marbach, Ellis Katz, and Troy E. Smith eds., Greenwood Press, 2005)

"Justice Thomas, the Declaration of Independence, and the Michigan Cases," 28 Southern Illinois University Law Review 519 (2004) (transcript of remarks)

"Commerce Clause," 2 Dictionary of American History 310 (Stanley I. Kutler ed., 3rd ed., Charles Scribner's Sons, 2003)

Letter to the Editor, "Thomas Jefferson is Okay, Clarence Thomas is Not?," Washington Times, 12 October 2002, A11

"First Principles: The Jurisprudence of Clarence Thomas," Campbell Law Observer, September 2002, 7, cols. 1-4 (published remarks)

"'My Rookie Years are Over': Clarence Thomas After Ten Years," 10 American University Journal of Gender, Social Policy, and the Law 343 (2002) (published remarks)

Presentations:

Federalist Society podcast about A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press, 2011): http://www.fed-soc.org/publications/detail/a-distinct-judicial-power-faculty-book-podcast

Carolina Journal radio interview about A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press, 2011), http://ip.podcast-directory.co.uk/episodes/cj-radio-program-211-2331423.html (begins at 31:47 in program 211)

KALA public radio interview about A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press, 2011): https://docs.google.com/a/onu.edu/file/d/0B7jrrNqwIaEXZExvU3Z3dmdlQ2M/edit

KALA public radio interview about To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York University Press, 1995): http://www.youtube.com/watch?v=keURi6IRkIY&feature=youtu.be

Federalist Society debate with Gordon S. Wood about To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York University Press, 1995): http://www.youtube.com/watch?v=O6o6sm5SJuE

Shaftesbury Society lecture about First Principles: The Jurisprudence of Clarence Thomas (New York University Press, 1999; expanded edition, 2002): http://cjtv.carolinajournal.com/display_video.php?id=1731&type=3; and http://www.youtube.com/watch?v=90IE1bENEnw

Several C-SPAN presentations about First Principles: The Jurisprudence of Clarence Thomas (New York University Press, 1999; expanded edition, 2002):

http://www.c-spanvideo.org/program/ProfileC

http://www.c-spanvideo.org/program/Jurisp

http://www.c-spanvideo.org/program/TheJur

Professor Gerber also has made presentations at the following venues: University of Akron Law School, Brown University, League of Women Voters of Lima (Ohio), Cleveland State University Cleveland Marshall College of Law, Georgia State University College of Law, Valparaiso University Law School, University of Chicago Law School, Regent University School of Law (twice), University of Virginia School of Law, Newport (Rhode Island) Historical Society, Columbus (Ohio) lawyers' chapter of the Federalist Society, Rutgers-Newark School of Law, University of Pennsylvania School of Law, California Western School of Law, Pepperdine University School of Law, UCLA School of Law, University of Southern California School of Law, Capital University School of Law, Brown University’s Bookstore, Poquoson (Virginia) Public Library, Michigan State University College of Law (twice), Medina County Bar Association of Ohio, Harvard Law School, Social Law Library, University of Detroit Mercy School of Law, Liberty Fund Colloquium (five times), Loyola University Chicago School of Law, Cleveland lawyers’ chapter of the Federalist Society, University of Tennessee College of Law (twice), New England Political Science Association’s Annual Meeting, John Carter Brown Library, New England School of Law, University of Texas School of Law, Stetson University College of Law, Boston University School of Law, Quinnipiac University School of Law, Social Philosophy and Policy Center (five times), Case Western Reserve University School of Law (twice), Santa Clara School of Law, Stanford Law School, Loyola University of New Orleans School of Law, Southeastern Association of Law School’s Annual Meeting, Midwest Political Science Association’s Annual Meeting (twice), University of California at Berkeley Boalt Hall School of Law, California Hastings College of Law, University of San Francisco School of Law, San Francisco lawyers’ chapter of the Federalist Society, Golden Gate University School of Law, Sacramento lawyers’ chapter of the Federalist Society, University of California at Davis School of Law, Defiance County Bar Association of Ohio, John Locke Foundation (twice), Campbell University School of Law (twice), Ohio Legal Scholarship Workshop (twice), McGeorge School of Law, Federalist Society Faculty Conference (twice), Ohio State University College of Law, Suffolk University School of Law, Heritage Foundation’s Legal Strategy Forum, University of Gloucestershire (England), Southern Illinois University School of Law, Cato Institute, Michigan State University, American Political Science Association’s Annual Meeting (five times), Campbell University, Princeton University, American University College of Law, Washington and Lee School of Law, William and Mary Law School (twice), New York Academy of Science, University of Toledo College of Law (twice), Northeastern Political Science Association’s Annual Meeting (four times), Southern Political Science Association’s Annual Meeting (twice), National Conference of Black Political Scientists’ Annual Meeting (twice), Ohio Northern University (many times)

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Scott Douglas Gerber