Jay Wexler

Jay Wexler (born April 12, 1969) is an American legal scholar who was the first to study laughter at the Supreme Court of the United States. His work also focuses on church-state issues, constitutional law,[1] and environmental law. He is a professor of law at Boston University School of Law.

Jay Wexler
Jay D. Wexler

(1969-04-12) April 12, 1969
Alma mater
OccupationLaw professor
EmployerBoston University School of Law


Wexler earned a B.A., magna cum laude in East Asian Studies from Harvard University in 1991, his M.A. in religious studies from the University of Chicago Divinity School in 1993, and his J.D. from Stanford Law School in 1997,[2] where he was a Notes Editor on the Stanford Law Review[3] and a Semifinalist in the Kirkwood Moot Court competition. After law school, Wexler clerked for Judge David Tatel on the United States Court of Appeals for the District of Columbia Circuit and for Justice Ruth Bader Ginsburg at the Supreme Court of the United States. He was an attorney advisor at the Department of Justice Office of Legal Counsel from 1999 to 2001.[4] Wexler began teaching at Boston University School of Law in 2001 and became a tenured professor in 2007.[5]

Wexler has appeared on National Public Radio's All Things Considered[6] and On Point,[7] CNBC,[8] C-SPAN,[9][10][11][12] State of Belief,[13] the Brian Lehrer Show,[14] New Hampshire Public Radio's Word of Mouth,[15] and has been featured in Leah Remini: Scientology and the Aftermath[16] and Hail Satan?[17] He is admitted to the bar in Illinois[18] and Massachusetts.[19]

Supreme Court laughter

In 2005, Wexler's pioneering research counted the number of times each Supreme Court justice generated laughter in the courtroom, as indicated in the official transcript, as well as each Justice's "Laughter Episodes Instigated Per Argument Average," by dividing each justice's total laughs for the 2004-2005 term by the number of oral arguments he or she attended.[20][21][22] This lighthearted inquiry to determine "the relative funniness of the Justices"[20]:59 was replicated by Wexler in 2007.[23] Since then, other scholars have built on these initial studies and seriously examined how laughter is used by the justices at the Supreme Court.[24][21][25]


In addition to laughter during sessions of the Supreme Court of the United States, Wexler's research focuses on church-state issues and environmental law. He also writes legal fiction.


Our Non-Christian Nation: How Wiccans, Satanists, Atheists, and Other Non-Christians are Demanding their Rightful Place in American Public Life (2019)

Wexler examines how a smaller portion of the United States population identifies as Christian than in the past, and how the growing non-Christian religions are using the law to assert themselves and create a more diverse public square. Wexler travels the country to obtain first hand accounts of the religious disputes of the Summum in Salt Lake City, Wiccans in Wisconsin, Atheists in Greece, New York, and Muslims in North Carolina.[26]

When God isn't Green: A World-Wide Journey to Places Where Religious Practice and Environmentalism Collide (2016)

Wexler details his trips to sites where religious practices negatively impact the environment. Because large groups of people engage in these practices, it is the harm caused by the cumulative practice that needs to be weighed against religious freedom.[27]

Tuttle in the Balance (2015)

Wexler's first novel follows a United States Supreme Court Justice during a midlife crisis.[28] Although the story is satirical, it also examines serious legal issues such as filming Supreme Court arguments.[29] Ultimately, the story is a reminder that Supreme Court justices are ordinary people.[30]

Wexler's first collection of short stories takes readers to disparate places: a zoo where all of the animals are black and white, a children's camp where they have to collect clams, Justice Sonia Sotomayor's confirmation hearing run by the 1977 Kansas City Royals, and Henry Clay's advice to various people.[31] The title story about Justice Ed Tuttle trying to pick up women while on vacation[32] was expanded into Wexler's novel, Tuttle in the Balance.[4]

The Odd Clauses: Understanding the Constitution Through Ten of its Most Curious Provisions (2012)

Wexler chose to write about ten of the lesser known parts of the United States Constitution. He examines provisions regarding incompatibility, weights and measures, recess appointments, original jurisdiction, natural-born citizens, the Twenty-First Amendment, letters of marque and reprisal, titles of nobility, bills of attainder, and the Third Amendment. This book, like much of Wexler's work, seeks to educate and entertain,[4] and while some enjoy this "fresh vantage point,"[33] others find it distracting.[34] Wexler also authored a blog called Odd Clauses Watch[35] with news about other odd clauses that did not make the book.

Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars (2009)

In this book, Wexler details his journey to the sites of recent separation of church and state judicial opinions.[36]

Humor publications

In addition to studying which justices are funny, Wexler has authored numerous humor pieces. His first foray into humor publishing explained how it is possible to get 100% of one's daily recommended allowance of vitamins and minerals by eating mass quantities of junk food.[37] Wexler frequently writes about the Supreme Court of the United States,[38][39] including his clerkship with Justice Ruth Bader Ginsburg[40] and alternate reality confirmation hearings for the justices.[41] Wexler also writes about legal oddities, including how legislation limits Woodsy the Owl's effectiveness.[42] Although most of Wexler's humor writings are law-related, he has also written general humor pieces.[43][44][45]

Academic articles

Wexler has written numerous academic articles examining constitutional law,[46] law and religion,[47][48][49][50] environmental law,[51] and intersections thereof.[52] He has made significant contributions to the discourse surrounding the teaching of religion, particularly intelligent design, in American public schools.[53][54][55][56][57][58][59][60][61] Wexler's work has been published in journals such as the Journal of Interdisciplinary History,[62] the Journal of Legal Metrics,[63] New England Law Review,[64] and Texas Law Review.[65] His work has been cited by two federal circuit courts,[66][67] two federal district courts,[68][69] and the Vermont Supreme Court.[70] His most cited articles include[71][72]

  • "Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism", 66 George Washington Law Review 298 (1998): Wexler illustrates the merits of Cass Sunstein's judicial minimalism,[73] discusses the intermediate scrutiny standard, argues that it is better than a sliding-scale approach,[74][75] but acknowledges the Supreme Court of the United States can manipulate this standard.[76][77][78]
  • "Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools", 56 Vanderbilt Law Review 751 (2003): Wexler examines the Santorum Amendment to the No Child Left Behind Act[79] and finds that teaching intelligent design in public schools would violate the Establishment Clause.[80]
  • "Of Pandas, People, and the First Amendment: The Constitutionality of Teaching Intelligent Design in the Public Schools", 49 Stanford Law Review 439 (1997): Wexler was one of the first legal scholars to contend that intelligent design is a religious belief and that teaching it in public schools would violate the Establishment Clause.[81][82] He argued intelligent design should be considered religious belief regardless of whether it is evaluated under a "content-based" or a "functional" definition of religion.[81] Wexler noted that intelligent design could also be considered scientific, but that the religious nature of the theory should preclude it being taught in public schools.[83] Conversely, he argued that evolution is scientific and should not be considered a religious belief because "[i]t does not address the question of origins nor does it postulate the meaning of life. It deals only with proximate causes, not ultimate ones."[84]
  • "Preparing for the Clothed Public Square: Teaching about Religion, Civic Education, and the Constitution", 43 William and Mary Law Review 1159 (2001-2002): Wexler distinguishes teaching about religion from teaching religious beliefs, and argues children should be taught about various religions that exert significant influence in societies around the world.[85][86]

Honors and awards

Wexler received numerous awards as a student at Stanford Law School. He was awarded the Steven M. Block Civil Liberties Award and the Irving J. Hellmann Jr. Award for his student note[87] published in the Stanford Law Review.[2] At Commencement, he was named the Nathan Abbot Scholar for the highest cummulative grade point average, and was elected to the Order of the Coif.[2]

Wexler is a two-time Fulbright Scholar (2007-2008[88] and 2014-2015[89]), and was selected for the Michael Melton Award for Excellence in Teaching in 2009.[5]

See also


  1. Klosterman, Chuck (2016). But What if We're Wrong?. New York: Blue Rider Press. pp. 208–11. ISBN 9780399184123.
  2. Hellyer, Constance (17 June 1997). "Law School graduates 214 students; honors Professor William B. Rubenstein". Stanford News. Stanford University News Service. Retrieved 18 March 2019.
  3. "Stanford Law Review Volume 49 Masthead" (PDF). Stanford Law Review. Stanford Law School. Retrieved 26 April 2019.
  4. Warner, John. "What Jay Wexler Knows: Talking about The Adventures of Ed Tuttle, Associate Justice". Inside Higher Ed. Retrieved 29 March 2019.
  5. Jay D. Wexler, Boston University School of Law, retrieved March 15, 2019
  6. Seabrook, Andrea. "Obama Wields His ... Autopen?". NPR. Retrieved 6 May 2019.
  7. "The Dover Case Decision". WBUR. Retrieved 6 May 2019.
  8. "Trump 'Severs' Biz Ties: Still Conflicts of Interest?". CNBC. Retrieved 3 May 2019.
  9. "Supreme Court Books", C-SPAN, April 5, 2016, retrieved March 12, 2019
  10. "The Odd Clauses", C-SPAN, November 10, 2011, retrieved March 12, 2019
  11. "Holy Hullabaloos", C-SPAN, May 22, 2010, retrieved March 12, 2019
  12. "Symposium on Justice Ruth Bader Ginsburg", C-SPAN, March 12, 2009, retrieved March 12, 2019
  13. Craig, Jonathan. "June 20-21, 2009". State of Belief: Religion and Radio Done Differently. Interfaith Alliance. Retrieved 6 May 2019.
  14. Reader, Stephen. "The Constitution's Odd Clauses". New York Public Radio. It's a Free Country. Retrieved 6 May 2019.
  15. "01.04.16: Jay Wexler, Locker Room Nudity, & Pot Smoking Among Teens". New Hampshire Public Radio. Retrieved 6 May 2019.
  16. "Jay D. Wexler". IMDb. Retrieved 22 April 2019.
  17. Erickson, Steve (17 April 2019). "Director Penny Lane on Her Satanic Temple Documentary, Hail Satan?". studiodaily. Retrieved 22 April 2019.
  18. "Lawyer Search: Attorney's Registration and Public Disciplinary Record (Jay Douglas Wexler)". Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois. Retrieved 6 May 2019.
  19. "Look Up An Attorney (Jay Wexler)". Massachusetts Board of Bar Overseers. Retrieved 6 May 2019.
  20. Wexler, Jay D. (2005). "Laugh Track" (PDF). Green Bag 2d. 9 (1): 59. Retrieved 7 May 2019.
  21. Tonja Jacobi and Matthew Sag, Taking Laughter Seriously at the Supreme Court, March 9, 2019, retrieved March 15, 2019
  22. Liptak, Adam (31 December 2005). "So, Guy Walks Up to the Bar, and Scalia Says..." The New York Times. Retrieved 22 April 2019.
  23. Wexler, Jay D. (2007). "Laugh Track II -- Still Laughin'!". Yale Law Journal Pocket Part. 117: 130.
  24. Malphurs, Ryan A. (2010). ""People Did Sometimes Stick Things in my Underwear": The Function of Laughter at the U.S. Supreme Court" (PDF). Communication Law Review. 10 (2): 48. Retrieved 28 March 2019.
  25. Liptak, Adam (24 January 2011). "A Taxonomy of Supreme Court Humor". The New York Times. Retrieved 22 April 2019.
  26. "Our Non-Christian Nation Contents and Abstracts". Stanford University Press. Retrieved 29 March 2019.
  27. Schindler, Sarah (2016). "Comments on When God Isn't Green". Boston University Law Review Annex. 96: 1. Retrieved 28 March 2019.
  28. Tuttle, Kate (6 December 2015). "Professor's Debut Novel a Case of Law and Humor". Boston Globe.
  29. Gaff, Harry (10 December 2015). "Standard of Review: Satire At the Supreme Court in New Novel 'Tuttle In The Balance'". Above the Law. Retrieved 22 March 2019.
  30. Warner, John (24 February 2016). "The Bibioracle: Books Illuminate Supreme Court Process". Chicago Tribune. Retrieved 22 March 2019.
  31. Baker, Deb (9 September 2012). "Finding Balance". Concord Monitor. Retrieved 29 March 2019.
  32. Greenfield, Scott H. "Book Review: The Adventures of Ed Tuttle, Associate Justice". Simple Justice. Retrieved 29 March 2019.
  33. Brigham, J. (June 2012). "The Odd Clauses: Understanding the Constitution Through Ten of its Most Curious Provisions". Choice. 49 (10): 1969.
  34. Jacobs, Ben (26 November 2011). "BU Professor Looks to Explain Odd Constitutional Clauses". Boston Globe.
  35. Wexler, Jay. "Odd Clauses Watch". Retrieved 6 August 2019.
  36. "Holy Hullabaloos!". KCUR 89.3. Retrieved 6 May 2019.
  37. Cox, Robert; Wexler, Jay (January 1994). "Consume Mass Quantities: Clinton's Secret Health Plan". Spy Magazine: 20.
  38. Wexler, Jay. "Preseason at the Supreme Court". McSweeney's Internet Tendency. Retrieved 8 April 2019.
  39. Wexler, Jay. "The Sound of Silence, Supreme Court Style". Beacon Broadside. Beacon Press. Retrieved 8 April 2019.
  40. Wexler, Jay (8 August 2012). "I Made Clarence Thomas Laugh". Salon. Retrieved 7 May 2019.
  41. Wexler, Jay. "The Confirmation Hearing of Neil Gorsuch, If Supreme Court Confirmation Hearings Really Were a Form of Kabuki Theater". McSweeney's Internet Tendency. Retrieved 8 April 2019.
  42. Wexler, Jay. "Woodsy the Owl Loses His Mojo". McSweeney's Internet Tendency. Retrieved 7 May 2019.
  43. Wexler, Jay. "Failures in Live-Blogging". Yankee! Pot Roast. Retrieved 8 April 2019.
  44. Wexler, Jay. "Champagne". Eyeshot. Retrieved 8 April 2019.
  45. Wexler, Jay. "Some Notes Regarding My Stint as Second-and-a-Half String Center on My Freshman Football Team, Circa 1983". Eyeshot. Retrieved 8 April 2019.
  46. Wexler, Jay (2014). "Constitutional Exaptation, Political Dysfunction, and the Recess Appointments Clause" (PDF). Boston University Law Review. 94: 807. Retrieved 12 April 2019.
  47. Wexler, Jay (2013). "Some Thoughts on the First Amendment's Religion Clauses and Abner Greene's Against Obligation, With Reference to Patton Oswalt's Character "Paul from State Island" in the Film Big Fan" (PDF). Boston University Law Review. 93 (4): 1363. Retrieved 12 April 2019.
  48. Wexler, Jay (2013). "Government Disapproval of Religion". Brigham Young University Law Review. 2013 (1): 119. Retrieved 12 April 2019.
  49. Wexler, Jay (1 January 2007). "Protecting Religion Through Statute: The Mixed Case of the United States". The Review of Faith & International Affairs. 5 (3): 17. Retrieved 29 April 2019. Subscription needed.
  50. Wexler, Jay D. (2006). "The Endorsement Court". Washington University Journal of Law & Policy. 21: 263. Retrieved 3 May 2019.
  51. Wexler, Jay D. (February 2006). "The (Non)Uniqueness of Environmental Law". George Washington Law Review. 74 (2): 260. Retrieved 3 May 2019. Subscription needed.
  52. Jay Wexler, "When Religion Pollutes: How Law Should Respond When Religious Practice Threatens Public Health?" in Law, Religion, and Health in the United States. New York: Cambridge University Press. ISBN 9781107164888.
  53. Wexler, Jay D. (Fall 2009). "Intelligent Design and Judicial Minimalism: Further Thoughts on the 'Is it Science' Question". University of St. Thomas Journal of Law and Public Policy. 4 (1): 30. Retrieved 26 April 2019.
  54. Wexler, Jay D. (2009). "Religion in Public Schools". The Child: An Encyclopedic Companion. University of Chicago Press. ISBN 978-0226475394.
  55. Jay D. Wexler, "From the Classroom to the Courtroom: Intelligent Design and the Constitution" in Not in Our Classrooms: Why Intelligent Design is Wrong for Our Schools, p. 83 (Beacon Press, 2006).
  56. Wexler, Jay D. (2006). "Intelligent Design and the First Amendment: A Response". Washington University Law Quarterly. 84 (1): 63. Retrieved 3 May 2019.
  57. Wexler, Jay D. (Fall 2006). "Kitzmiller and the 'Is it Science?' Question". First Amendment Law Review. 5 (1): 90. Retrieved 3 May 2019. Subscription needed.
  58. Wexler, Jay D. (2006). "Too Much, Too Little: Religion in the Public Schools". University of Maryland Law Journal of Race, Religion, Gender & Class. 6 (1): 107. Retrieved 3 May 2019.
  59. Wexler, Jay D. (2003). "Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools". Vanderbilt Law Review. 56 (3): 751. Retrieved 26 April 2019. Subscription needed.
  60. Wexler, Jay D. (March 2002). "Preparing for the Clothed Public Square: Teaching About Religion, Civic Education, and the Constitution". William and Mary Law Review. 43 (3): 1159. Retrieved 29 April 2019. Subscription needed.
  61. Wexler, Jay D. (January 1997). "Of Pandas, People, and the First Amendment: The Constitutionality of Teaching Intelligent Design in the Public Schools". Stanford Law Review. 49 (2): 439. Retrieved 26 April 2019.Subscription needed.
  62. Wexler, Jay (Winter 2017). "The Contract Clause: A Constitutional History by James W. Ely (review)". Journal of Interdisciplinary History. 48 (3): 415. Retrieved 19 April 2019.
  63. Hatton, David; Wexler, Jay (2012). "The First Ever (Maybe) Original Jurisdiction Standings". Journal of Legal Metrics. 1 (1): 19. Retrieved 19 April 2019. Subscription needed.
  64. Wexler, Jay D. (2009). "Justice Ginsburg's Footnotes". New England Law Review. 43 (4): 855. Retrieved 29 April 2019.
  65. Wexler, Jay (2011). "I'm a Laycockian! (for the most part) (book review)". Texas Law Review. 89 (4): 935. Retrieved 19 April 2019. Subscription needed.
  66. Bartnicki v. Vopper, 200 F.3d 109, 123 (3rd Cir. 1999). Subscription needed.
  67. Ernst J. v. Stone, 452 F.3d 186, 200 (2nd Cir. 2006). Subscription needed.
  68. Selman v. Cobb County School District, 390 F.Supp.2d 1286, 1308 (United States District Court, N.D. Georgia 2005). Subscription needed.
  69. Guzzi v. Thompson, 470 F.Supp.2d 17, 27 (United States District Court, D. Mass. 2007). Subscription needed.
  70. Baker v. State, 744 A.2d 864, 870 (Supreme Court of Vermont 1999). Subscription needed.
  71. "Jay Wexler". Google Scholar. Retrieved 6 May 2019.
  72. "Wexler, Jay (HeinOnline Author Profile)". HeinOnline. Retrieved 19 April 2019. Subscription needed.
  73. Cudahy, Richard D. (Winter 2002). "Nondelegation Doctrine: Rumors of Its Resurrection Prove Unfounded". St. John's Journal of Legal Commentary. 16 (1): 33, n.165. Retrieved 22 April 2019. Subscription needed.
  74. Stearns, Maxwell (June 2017). "Obergefell, Fisher, and the Inversion of Tiers". University of Pennsylvania Journal of Constitutional Law. 19 (5): 1066, n.120. Retrieved 19 April 2019.
  75. Chemerinsky, Erwin (Summer 2016). "The Rational Basis Test is Constitutional (and Desirable)". Georgetown Journal of Law & Public Policy. 14 (2): 405, n.15. Retrieved 22 April 2019. Subscription needed.
  76. Troy, Daniel (2004). "Do We Have a Beef with the Court - Compelled Commercial Speech Upheld, but it Could Have Been Worse". Cato Supreme Court Review. 2004-2005: 136, n.76. Subscription needed.
  77. Ross, Susan Dente (2000–2001). "Reconstructing First Amendment Doctrine: The 1990s (R)Evolution of the Central Hudson and O'Brien Tests". Hastings Communications and Entertainment Law Journal. 23 (4): 725. Retrieved 22 April 2019.CS1 maint: date format (link) Subscription needed.
  78. Schraub, David (Summer 2010). "The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement". University of Chicago Law Review. 77 (3): 1445, n.50. Retrieved 22 April 2019. Subscription needed.
  79. Brauer, Matthew J.; Forrest, Barbara; Gey, Steven G. (2005). "Is it Science Yet?: Intelligent Design Creationism and the Constitution". Washington University Law Quarterly. 83 (1): 111. Retrieved 23 April 2019.
  80. Shreve, Gene (2010). "Religion, Science and the Secular State: Creationism in American Public Schools". American Journal of Comparative Law. 58 (Supplement): 54, n.22. Retrieved 23 April 2019. Subscription needed.
  81. Bauer, David R. (November 2006). "Resolving the Controversy Over Teaching the Controversy: The Constitutionality of Teaching Intelligent Design in Public Schools" (PDF). Fordham Law Review. 75 (2): 1046. Retrieved 23 April 2019.
  82. DeWolf, David K.; DeForrest, Stephen C.; Edward, Mark (2000). "Teaching the Origins Controversy: Science, or Religion, or Speech". Utah Law Review. 2000 (1): 79. Retrieved 24 April 2019. Subscription needed.
  83. House, H.Wayne (2000–2001). "Darwinism and the Law: Can Non-Naturalistic Scientific Theories Survive Constitutional Challenge?" (PDF). Regent University Law Review. 13 (2): 437. Retrieved 24 April 2019.CS1 maint: date format (link)
  84. Beckwith, Francis J. (2003). "Public Education, Religious Establishment, and the Challenge of Intelligent Design". Notre Dame Journal of Law, Ethics & Public Policy. 17 (2): 490. Retrieved 24 April 2019.(Citing Jay D. Wexler, Note, Of Pandas, People, and the First Amendment: The Constitutionality of Teaching Intelligent Design in the Public Schools, 49 Stanford Law Review 439, 462 (1997)).
  85. Shriffin, Steven H. (November 2004). "The Pluralistic Foundations of the Religion Clauses" (PDF). Cornell Law Review. 90 (1): 86. Retrieved 24 April 2019.
  86. Berg, Thomas C. (2006). "What's Right and Wrong with No Endorsement". Washington University Journal of Law & Policy. 21: 311. Retrieved 24 April 2019.
  87. Wexler, Jay (1997). "Of Pandas, People, and the First Amendment: The Constitutionality of Teaching Intelligent Design in the Public Schools". Stanford Law Review. 49 (2): 439. Retrieved 21 March 2019. Subscription needed.
  88. "Fulbright Scholar List Archive". Retrieved 22 March 2019.
  89. "Fulbright Scholar Directory". Retrieved 22 March 2019.
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