H. Jefferson Powell to return to Duke Law faculty

February 1, 2012Duke Law News

H. Jefferson Powell will return to the Duke Law faculty in May 2012. A member of the law faculty from 1989 to 2010, Powell currently serves as deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice and as a professor at George Washington University Law School.

A distinguished constitutional law scholar, Powell also has served in a variety of positions in federal and state government during his career. He has briefed and argued cases in both federal and state courts, including the Supreme Court of the United States. Most recently, Powell and Duke Law Professor Walter Dellinger wrote the amicus brief that the congressional Democratic leadership filed in the U.S. courts of appeals considering the constitutionality of the Affordable Care Act.

“Jeff Powell is one of the leading thinkers and writers in constitutional theory and history,” said Dean David F. Levi. “His work is careful, original and impressive in its reach and volume. He has written numerous books and articles, of great interest not just to law professors but to a large audience outside of the law schools as well. He is also a beloved teacher. Add to this that he is a skilled advocate and experienced, first-rate government lawyer, and one gets a sense of just how multifaceted and talented Jeff is. It will be wonderful to have him back home at Duke.”

Powell’s public service career spans more than two decades. In the early 1990s, he was special counsel to the attorney general of North Carolina. In addition to his recent tenure as deputy assistant attorney general in the Office of Legal Counsel ⎯ which provides legal advice to the president, the attorney general and other high-level executive branch officials ⎯ he served in the U.S. Department of Justice in various capacities from 1993 to 2000, and in 1996, he was the principal deputy solicitor general. In much of his earlier civic service, he worked alongside Dellinger, who headed OLC in the early 1990s and served as acting solicitor general during the 1996-97 term of the Supreme Court.

Powell’s academic career has included positions at Yale University and the University of Iowa, where he was a professor of law prior to joining the Duke Law faculty. Described by the late Professor David P. Currie of the University of Chicago as “one of our foremost scholars of constitutional history” and “surely our leading academic expert on executive interpretation of the Constitution,” Powell is a prolific scholar; he has published many influential articles, essays, and books examining the moral tradition of American constitutionalism, the powers of the executive branch, and legislative and judicial decision-making, among other subjects.

His book No Law: Intellectual Property in the Image of An Absolute First Amendment (Stanford University Press, 2009), which he coauthored with Duke Law Professor David Lange, was hailed as a “thorough rethinking” of the First Amendment as an absolute prohibition of government interference in expression and speech. The book discusses the collision of state-supported intellectual property protections with the First Amendment’s guarantee of freedom of speech and press, arguing, as Lange and Powell explained, that “it is not true that allowing the First Amendment a serious role in shaping IP will simply destroy IP. It is not true that freedom of expression and the provision of incentives for expression have to be reconciled by simply subordinating freedom to incentives ⎯ more or less the current position ⎯ or that freedom is inherently incompatible with the creation of incentives.”

Lange says his collaboration with Powell was challenging and refreshing. “Jeff is in many respects a traditional, gifted academic, superbly educated and well read, and committed to teaching and scholarship alike,” Lange said. “His scholarly work is always driven by intellectual curiosity rather than by fashion. And yet he is also fully engaged in the practical significance of that work because, in the end, he is both a scholar and a serious legal practitioner. Together, these qualities of mind and professional enthusiasms mean that a conversation with him never lags. One topic leads to another, and to another, and before you know it you are talking or thinking about something that is likely to be entirely unexpected. Our book proceeded in that fashion. The truth is I have never felt more intellectually engaged than I did when working with Jeff on that project."

Powell’s forthcoming works include a book he is finishing entitled The Constitution and the Commander in Chief, which argues that our constitutional tradition provides principled guidelines for the lawyers who advise the president on legal issues involving national security. While some assume that respect for Congress and the rule of law are at odds with recognizing a robust independent role for the president as commander in chief, Powell insists that the Constitution provides for both congressional authority and presidential initiative.

In another project, Powell is studying how three great legal figures of the early Republic ⎯ Chief Justice John Marshall, his colleague Justice Joseph Story, and their mutual friend Attorney General William Wirt ⎯ understood the task of resolving difficult issues in public law. In contrast to other scholars, who interpret Marshall and Story in essentially political terms, and generally ignore Wirt, Powell hopes to illuminate the role of distinctively legal reasoning in their decisions.

Powell holds a bachelor’s degree from St. David’s University College (now Trinity St. David) of the University of Wales; a master’s degree and PhD from Duke University; and a Master’s of Divinity and JD from Yale University. He was a law clerk to Judge Sam J. Ervin III of the U.S. Court of Appeals for the Fourth Circuit. He has received numerous awards and honors including, in 2002, Duke University’s Scholar/Teacher Award. “The Contracts Experience,” a video teaching tool he developed in 2002 (in collaboration with Duke Law Professor John Weistart and Georgetown Law Professor Girardeau A. Spann) received a Telly Award and an Aegis Award of Excellence. Powell currently serves as series editor of the Carolina Academic Press Legal History Series.

“I am simply delighted to be coming home,” Powell said. “Duke Law School has a commitment ⎯ one that is unparalleled in contemporary legal education ⎯ to provide an outstanding professional education in the context of one of the leading centers of academic legal research and writing in the country. I am excited at the prospect of becoming a contributor, once again, to the Duke vision of law as a form of public service.”