BY EMILY BEARG
In last week’s Wall Street Journal, Professor Einer Elhauge denounced the Ninth Circuit Court of Appeals’ initial decision to postpone the recall election in California as unsound and out of step with the principles of equal protection enunciated in Bush v. Gore. Professor Laurence Tribe, who served as co-counsel to the parties challenging the recall, responded the next day with a column describing the systematic denial of equality that would result for thousands of voters who were still subjected to the punch card system.
While Tribe is well-known for his constitutional scholarship, this recent doctrinal exchange highlighted the interdisciplinary passion of a professor mostly known for his courses on Contracts, Antitrust, and statutory interpretation. Elhauge is well-liked among students for the limericks he uses in his Contracts class to summarize doctrine in interesting ways and play on the comic elements of contracts cases, as well as for the musical finale to the course that sums up contracts law in rhyming verse.
However, a quick glance at the bookshelves in Elhauge’s office on the fifth floor of Hauser Hall reveals the breadth of legal topics that he has pursued and expounded on during his academic career, ranging from health care law to the law of democracy and public choice theory.
Elhauge’s exhaustive interest in the legal academic field, however, did not develop along a traditional path of social science or humanities. When he arrived at Harvard College in 1978, he majored in biochemical sciences and fulfilled the requirements of the pre-med track.
His parents, who emigrated from Argentina, urged him to become a doctor because they believed he should compete in an objective field, rather than in the networking world of law.
“I was a science geek more than anything else. Spanish was my first language and English facility came rather late for me,” he said, adding that he did not complete a substantial piece of writing until his involvement on the Harvard Law Review.
While backpacking through Europe after his college graduation, he debated whether to attend UC San Diego or Stanford Medical School. “I’m normally pretty decisive,” he said. “But I realized the reason I couldn’t decide between the schools was because I didn’t want to do either program.”
During his first week of medical school he took the LSAT, applied to Harvard Law School and was later accepted. He finished his first year at UC San Diego and took a leave of absence that has never ended.
Elhauge found law school’s blend of analytical rigor and creativity to be the “perfect mix,” and he sat through a broad assortment of professors while at HLS, such as Duncan Kennedy, Philip Areeda, Charles Fried and Gerald Frug. His shift from science to the law clearly went smoothly, as Elhauge graduated from HLS at the top of his class.
At a time when HLS was dubbed the “Beirut of legal education,” because of the ideological battles within the faculty, Elhauge said that his experience as a student was exciting and interesting.
Professor Charles Nesson supervised his third-year paper, which was incorporated into the “Developments in the Law” section of the Harvard Law Review. The paper focused on the theoretical arguments underlying evidentiary privileges.
Upon graduation, Elhauge clerked for the Solicitor General’s office before beginning year-long clerkships for Judge Norris on the Ninth Circuit and then Justice Brennan on the U.S. Supreme Court. “They were the two nicest people, completely lacking in pretension.”
While clerking for Norris, Elhauge worked on the first case to hold that discrimination against homosexuals violated the equal protection clause, Watkins v. U.S. Army.
During his time at the Supreme Court, the U.S. Senate was conducting hearings on the nomination of Robert H. Bork, so “a lot was swirling around us … and we spent a fair amount of time waiting for the ninth justice to arrive,” he said.
However, Elhauge still managed to work on notable cases such as Morrison v. Olson, which upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978, and K Mart Corp v. Cartier, Inc., a trademark case that turned on statutory interpretation of the Tariff Act
Despite his clerkships, Elhauge said he is less interested in pursuing a judicial post, although he laughed and said, “I wouldn’t turn down a Supreme Court nomination!”
“I’m very happy with my work here,” he added. Since his clerkships, Elhauge has worked in academia, beginning as a professor at Boalt Hall, then accepting positions as a visiting professor at Harvard, Yale and the University of Chicago, and later becoming a part of the permanent Harvard faculty in 1995.
Since becoming a professor, his list of his publications has grown consistently. “One project leads to another,” he said, mentioning that although there is no unifying theme to his work, he has been particularly interested in looking at collective action problems and default rules across various legal areas. “I look for inter-law disciplinary connections,” he said, citing his recent amicus brief to the U.S. Supreme Court in
Vieth v. Jubelirer, which uses anti-trust concepts to provide a substantive test for impermissible political gerrymandering.
Similarly, his article “Are Term Limits Undemocratic?” published by the University of Chicago Law Review in 1997, takes an outsider’s perspective and uses collective action and entry barrier analysis to address the desirability of term limits.
This publication led to his involvement in the Ninth Circuit case Bates v. Jones, where Elhauge represented the state of California on appeal and successfully argued that term limits for state legislators did not violate the voters’ First and Fourteenth Amendment rights. After the case, Elhauge published “What Term Limits Do That Ordinary Voting Cannot” in the Cato Policy Review, which contends that term limits reduce inequalities in legislative power across districts and over time, by limiting seniority clout and barriers to entry, and thereby furthering democratic equality and freedom.
Elhauge also served as counsel to the Florida House of Representatives with Professor Charles Fried during the Bush v. Gore election, writing amicus curiae briefs on behalf of the House in support of neither party. The brief filed in Bush v. Gore argues that the Florida Supreme Court’s ruling displaced the authority of the Florida Legislature and put in place a system for counting votes so replete with arbitrary and unjustifiable distinctions that it violates Equal Protection.
When asked about his greatest accomplishment, Elhauge replied, “I am very proud of two articles I wrote on statutory interpretation that I worked on, on and off for eight years.” Published in the Columbia Law Review, the articles encompass a range of fields and Elhauge said he hopes they will be a useful and constructive platform for future work.
His current projects include articles on clarifying antitrust monopolization standards and on how corporate boards can sacrifice profits for the public interest, as well as a contracts primer, a health care law casebook co-authored with Duke Professor of Law Clark Havighurst and an antitrust global competition law casebook co-authored with Professor Damien Geradin of the University of LiPge in Belgium.
Of his recently expressed opinion on the Ninth Circuit recall case, Elhauge commented that he hopes Bush v. Gore will be taken seriously for the line it drew with regards to the sort of political discrimination that should be controlled. “There will always be differences” as to how counties count votes, he said, arguing that the default rule should be based on preventing “standardless discretion.”
Outside of the Law School, Elhauge spends his time with his wife and three children, aged nine, seven and three. Of the two older children,
he said that “neither one has shown an interest in going into law,” although his son highlighted his Bush v. Gore brief in crayon because he thought it made it more interesting! Elhauge is also a fan of the Red Sox and New Wave music.
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