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Marcosson, Samuel A. 1961-

MARCOSSON, Samuel A. 1961-


Born September 23, 1961, in Brooklyn, NY; son of Thomas and Linda Marcosson. Ethnicity: "Caucasian." Education: Bradley University, B.A. (summa cum laude), 1983; Yale Law School, J.D., 1986. Religion: Jewish.


Office—Louis D. Brandeis School of Law, University of Louisville, Louisville, KY 40292. E-mail—[email protected].


Clerked for Judge George C. Pratt, Second Circuit Court of Appeals, 1986-88; Equal Employment Opportunity Commission, Washington, DC, Office of General Counsel, senior attorney, 1988-96; University of Missouri-Kansas City School of Law, visiting professor, 1995; University of Louisville, Brandeis School of Law, assistant professor, 1996-2000, associate professor, 2000-03, professor, 2003—.


National Lesbian & Gay Law Association (annual conference, program cochair, 1998; amicus committee, cochair, 1998-2000).


Yale Law Journal, senior editor; Herbert Wechsler National Criminal Law Moot Court Competition, national champion, 1998-99, 1999-2000.


Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives, New York University Press (New York, NY), 2002.


A lawyer and prominent gay rights advocate, Samuel Marcosson served eight years at the Equal Employment Opportunity Commission, arguing numerous equal opportunity cases before federal appeals courts. Marcosson has drawn upon that extensive experience in his teaching career at the Brandeis School of Law, and equally so as an adviser and board member of the National Lesbian & Gay Law Association.

Throughout his legal and academic career, Marcosson has argued against a legal doctrine that has come to be known as "originalism." This theory holds that the only legitimate basis for constitutional interpretation is the original intent of the framers, and that Supreme Court Justices and appellate justices had unjustly expanded government powers and invented constitutional rights, often in the kinds of cases brought by agencies like the EEOC and organizations like the National Lesbian & Gay Law Association. In Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives, Marcosson takes Justice Thomas (incidentally, a former EEOC head) as a representative originalist, asking how would Thomas would have used his principles to decide the case of Loving v. Virginia, the case in which the Supreme Court struck down state laws against interracial marriage, laws that would have invalidated Thomas's own marriage. "What at first seems a contrivance leads to an ultimately convincing argument that the world derived from constitutional originalism is purely theoretical," concluded Booklist contributor Will Hickman.

For Marcosson, originalists like Justice Thomas and his mentor, Justice Antonin Scalia, suffer from the very tendencies they criticize in their opponents: self-interested reasoning, a tendency to bend the law to political ends, and a vagueness that makes their rulings unpredictable and often arbitrary. Marcosson seeks for an alternative doctrine, "legitimation," by which the Court would seek out the "original sins" in the Constitution and seek to remove them. While disagreeing with much of the book, including the conflation of Thomas's and Scalia's views and the supposed impossibility of true originalism, Law and Politics Book Review contributor Scott Gerber concluded, "These criticisms aside, Professor Marcosson has written a good book. Its tone is appropriate, its arguments are provocative, and its subject matter is significant."



Booklist, August, 2002, Will Hickman, review of Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives, p. 1897.

Choice, December, 2002, M. W. Bowers, review of Original Sin, p. 708.

Harvard Law Review, April, 2003 review of Original Sin, p. 1931.

Law and Politics Book Review, July, 2002, Scott Gerber, review of Original Sin, pp. 360-362.

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