It was not entirely an Antonin Scalia love-fest at a San Francisco Federalist Society meeting May 7 that featured a new book about the conservative Supreme Court justice. But it was pretty close.

Claremont McKenna College government professor Ralph Rossum, author of “Antonin Scalia’s Jurisprudence: Text and Tradition,” talked about his book to the 15 or so attendees, reciting excerpt after excerpt from Scalia’s speeches and opinions. The response was almost always giggles and approving nods.

Rossum’s book primarily addresses Scalia’s central judicial philosophy of Constitutional originalism, which relies on the original historical meaning of the Constitution’s laws, as opposed to interpretations that focus on current and ever-changing modern societal mores.

Scalia believes this strict originalist approach to Constitutional law acts as a proper constraint to judicial power that keeps judges from making laws, Rossum said.

As an example, Rossum pointed to Scalia’s dissenting opinion in United States v. Virginia, 518 U.S. 515 (1996), where the government successfully argued it was unconstitutional for the Virginia Military Institute to exclude women.

“The tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat,” Scalia wrote. “The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law.”

While Scalia is known for the consistency of his originalist arguments through the years, Rossum pointed out that he has fallen away from it on a few occasions. For instance, Scalia draws the meaning of the Eleventh Amendment not strictly from its bare text in Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991), which dealt with the constitutionality of tribes suing states. Scalia wrote in the majority opinion:

“We have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.”

Rossum first became acquainted with Scalia by team-teaching a course with him in France in 1987, he said.

“I got to know him and thought, ‘I like this guy,’” he said.

Rossum is publishing his book now because Scalia has been on the high court for 20 years, and a survey of his work will help people understand today’s evolving court under Chief Justice John Roberts.

“It isn’t clear where Roberts and [Justice Samuel] Alito are going to go,” and this book will help people understand whether those justices are following any of Scalia’s traditions, he said.

Rossum’s book costs $35 and is published by the University Press of Kansas.

Jessie Seyfer


A San Francisco lawyer is breaking into the publishing world with his writings on pornography.

No, he’s not writing for Penthouse.

Gregory Rutchik’s book titled “Entre-Porn-Eur” is geared toward clients who want to make sure the content they’re hosting respects federal regulations. The book came out of a change in the government’s position as to how content publishers need to keep records, such as models’ ages.

“A lot of my clients are infrastructure clients that have adult content on their systems,” he said. “They were trying to figure out what the liability is of a Web host or data center business in light of those changes.”

Determining liability was creating a lot of anxiety and questions for Rutchik’s clients, so he wrote the book to explain the answers. The 92-page book, which offers sample situations and relevant court rulings, is being sold online for about $6.50.

The book mostly serves to help existing clients, though “at best, it’s indirect marketing,” said Rutchik, the founding lawyer for the San Francisco-based Arts and Technology Law Group. “There’s certainly a benefit to having written it.”

Along with obvious players such as Playboy.com, knowing the content regulations � and responsibilities� is also beneficial to companies such as Youtube.com, which offer mainstream content but are also a distribution channel, he said.

Rutchik is often cited as an expert on digital rights management, and laws such as the Digital Millennium Copyright Act, which heightens the penalties for copyright infringement on the Internet.

His field of expertise is growing so much that Rutchik will be setting up a several-lawyer shop in Santa Monica later this summer, which will focus on the right of privacy and publicity.

“This is to help certain celebrity clients who have had images used for commercial gain without their permission,” he said. “This is an opportunity to bring my transactional skill set and approach as a litigator to advise these clients on their right to privacy.”

Kellie Schmitt