On Monday, February 10, 2025, the Elisabeth Haub School of Law at ̾Ƶ welcomed Professor Michael C. Dorf, Robert S. Stevens Professor of Law at Cornell Law School as the speaker for the 2025 Dyson Distinguished Lecture. His lecture was entitled: “Play in the Joints of the Religion Clauses and Law More Broadly.”
Professor Dorf’s lecture took as its starting point a view articulated by the late Chief Justice Rehnquist, writing for a majority of the Supreme Court in Locke v. Davey, 540 U.S. 712 (2004): “there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” He used this case as a basis to examine the title of his lecture and the origin of the phrase “play in the joints.” Although Professor Dorf explained how recent cases involving the Constitution’s religion clauses erode this principle, he argued that “play in the joints” is a valuable principle in many domains involving conflicting legal obligations: the law ought not forbid whatever it does not demand; instead, it should leave substantial room for choice. One key example, he noted, involved conflicts between antidiscrimination law and free speech on campus.
While highlighting the functionality and benefits of allowing flexibility in legal interpretation, Professor Dorf also acknowledged its potential drawbacks. He noted that “play in the joints” – inevitably means that “whatever values you have on one side or the other, one or the other of them is going to be sacrificed a bit, relative to what you, the judge, or whoever it is, thinks is the ideal balance.” He elaborated that “allowing ‘play in the joints’ means allowing someone else to decide how to strike the balance between the values that conflict in the law.” Notably, he acknowledged that while “play in the joints” is a strategy for courts to use in construing potentially conflicting legal obligations, there are also lessons as well for lawmakers and constitution writers: “The lesson is that whenever possible try not to give actors subject to your regulatory authority conflicting legal obligations.”
Describing himself as a “value pluralist,” Professor Dorf emphasized that he along with other value pluralists “think there are a lot of things that are valuable – equality and liberty, for example” and as a result, sometimes those values come into conflict. He explained that it is not always possible to specify in exact detail all of peoples’ legal obligations, and so there is some uncertainty around the edges where there are zones of conflict that you don’t anticipate. Professor Dorf ended his lecture by stating that his hope is that going forward these conflicting legal obligations are construed “giving more ‘play in the joints.’”
To kick-off the lecture, Haub Law Dean Horace Anderson spoke about the history of the Distinguished Dyson Lecture and thanked Professor Dorf for delivering this year’s lecture. Haub Law Professor Alexander K.A. Greenawalt followed by introducing Professor Dorf. Following the lecture, Professor Dorf was presented with the Dyson Medal. He then participated in an insightful Q&A session with the audience. The conversations continued at a post-lecture reception held at Haub Law.
Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell Law School. He has written over one hundred law review articles and is the author, co-author, or editor of six books, including On Reading the Constitution (co-author Laurence Tribe, Harvard University Press, 1991) and Beating Hearts: Abortion and Animal Rights (co-author Sherry F. Colb, Columbia University Press, 2016). His popular writing appears regularly in the web-based magazine Verdict and on his blog, Dorf on Law. Professor Dorf received his undergraduate and law degrees from Harvard. Before entering academia, Professor Dorf served as a law clerk for Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit and then for Justice Anthony M. Kennedy of the Supreme Court. He maintains an active pro bono practice.
The Dyson Distinguished Lecture was endowed in 1982 by a gift from the Dyson Foundation and made possible through the generosity of the late Charles H. Dyson, a 1930 graduate, trustee, and long-time benefactor of ̾Ƶ. The principal aim and object of the Dyson Distinguished Lecture is to encourage and make possible scholarly legal contributions of very high quality in furtherance of Haub Law's educational mission. Prior Dyson lectures have been delivered by many distinguished guests, including Secretary of Homeland Security Jeh Johnson, Dr. Cornel West, and more recently family historian, author, and thought leader Chris Rabb and also Professor I. Glenn Cohen, the James A. Atwood & Leslie Williams Professor of Law and Deputy Dean of Harvard Law School.