Forthcoming Works

Good and Evil in the American Founding:
The 2023 Vaughan Lecture on America’s Founding Principles
48 Harv. J.L. & Pub. Pol’y (forthcoming 2025) [SSRN]

The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders’ ideals as less valuable and their failings as more salient. These reckonings are necessary, but they also risk missing something important: a richer and more human understanding of the past, together with a recognition of the great good that the American Founding achieved, here and elsewhere. This Essay discusses how we ought to understand the Founders’ historical legacy—and why we might respect and indeed honor their contributions with open eyes.

Give Parents the Vote
100 Notre Dame L. Rev. (forthcoming 2025) (with Joshua Kleinfeld) [SSRN]

Many of America’s most significant policy problems, from failing schools to the aftershocks of COVID shutdowns to national debt to climate change, share a common factor: the weak political power of children. Children are 23% of all citizens; they have distinct interests; and they already count for electoral districting. But because they lack the maturity to vote for themselves, their interests don’t count proportionally at the polls. The result is policy that observably disserves children’s interests and violates a deep principle of democratic fairness: that citizens, through voting, can make political power respond to their interests.

Yet there’s a fix. We should entrust children’s interests in the voting booth to the same people we entrust with those interests everywhere else: their parents. Voting parents should be able to cast proxy ballots on behalf of their minor children. So should the court-appointed guardians of those who can’t vote due to mental incapacity. This proposal would be pragmatically feasible, constitutionally permissible, and breathtakingly significant: perhaps no single intervention would, at a stroke, more profoundly alter the incentives of American parties and politicians. And, crucially, it would be entirely a matter of state law. Giving parents the vote is a reform that any state can adopt, both for its own elections and for its representation in Congress and the Electoral College.

In Praise of Ignoring Facts
33 William & Mary Bill of Rts. J. (forthcoming Dec. 2024) (book review) [SSRN]

Lawyers and judges invoke history for lots of reasons, some of them purely rhetorical or instrumental. That’s why we academics have to hold their feet to the fire, sifting through their arguments for the implicit theories that treat some historical facts as more significant than others. Yet much modern con-law literature takes precisely the opposite tack, criticizing this effort at theoretical abstraction and parsimony as a form of intellectual blinders.

Jack Balkin’s Memory and Authority offers an admirable account of how American lawyers make use of history. But treating every use of history, including every instrumental use, as equally authoritative for the law is fatal to any theoretical project. That includes Balkin’s own “thin” theory of constitutional law, which stretches itself past the breaking point to accommodate the changing winds of social movements or modern demands for legitimacy. Instead, constitutional theory needs more theory: less court- or lawyer-watching and more effort to distinguish the content of the law from everything else that shapes what courts and lawyers do.

Dobbs and the Originalists
47 Harv. J.L. & Pub. Pol’y (forthcoming 2024) [SSRN]

Though often hailed as an originalist triumph, Dobbs v. Jackson Women’s Health Organization has also been condemned as an originalist betrayal. To some, it abandoned originalism’s principles in favor of a Glucksbergesque history-and-tradition test, or even a “living traditionalism”; to others, its use of originalism was itself the betrayal, yoking modern law to an oppressive past.

This essay argues that Dobbs is indeed an originalist opinion: if not distinctively originalist, then originalism-compliant, the sort of opinion an originalist judge could and should have written. Dobbs shows the importance of looking to our original law—to all of it, including lawful doctrines of procedure and practice, and not just to wooden caricatures of original public meaning. As the case was framed, the Court’s focus on history and tradition was the correct approach; on the evidence presented, it reached the correct originalist result. Understanding the Fourteenth Amendment as securing old rights, rather than as letting judges craft new ones, leaves more rather than fewer choices for today’s voters. In any case, it may be the law we’ve made, both in the 1860s and today.

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Constitutional Theory

The “Common-Good” Manifesto
136 Harv. L. Rev. 861 (2023) (book review) (with William Baude) [SSRN]

In “Common Good Constitutionalism,” Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism.

That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others might need to take account; yet those points remain underdeveloped. In the end, the book might be best understood as what Vermeule once called a “constitutional manifesto”: a work of “movement jurisprudence” whose political aims come into conflict with theoretical rigor.

Originalism: Standard and Procedure
135 Harv. L. Rev. 777 (2022) [SSRN]

Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a standard, not a decision procedure. It offers an account of what makes right constitutional answers right. What it doesn’t offer, and shouldn’t be blamed for failing to offer, is a step-by-step procedure for finding them.

Distinguishing standards from decision procedures explains originalism’s tolerance for uncertainty about history or its application; justifies the creation of certain kinds of judicial doctrines (though not others); clarifies longstanding battles over interpretation and construction; identifies both limits and strengths for the theory’s normative defenders; and gives us a better picture of originalism’s use in practice.

It would be nice if the correct constitutional theory also gave us easy answers in contested cases. But you can’t have everything. Knowing the right standard might not lead us to those answers, but it still might be worth knowing all the same.

Originalism and the Law of the Past
37 Law & Hist. Rev. 809 (2019) (with William Baude) [SSRN] [WWW]

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday’s “no vehicles in the park” ordinance is no less fraught — and no more so — than applying Founding-era legal doctrines.

Grounding Originalism
113 Nw. U. L. Rev. 1455 (2019) (with William Baude) [SSRN]

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided–or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it?

This Essay offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual social practice, including the aspects of legal practice we describe. This positive focus really can resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn’t the official story of our law. Stripped of their jurisprudential confusion, though, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders and to the changes over time that their law has recognized.

Originalism Without Text
127 Yale L.J. 156 (2017) [SSRN]

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.

Originalism’s Bite
20 Green Bag 2d 103 (2016) (with William Baude) [SSRN]

Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by “intelligent originalists,” one of us happily included, has rendered the theory “incoherent” and capable of supporting almost any result. We appreciate the attention, but we fear we’ve been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite.

Saving Originalism’s Soul
Library of Law & Liberty, Dec. 17, 2014, reprinted in Steven D. Smith et al., The New and Old Originalism: A Discussion (San Diego Legal Studies Paper No. 15-178, Feb. 9, 2015) [SSRN] [WWW]

What shall it profit originalism, to gain academic adherents but lose its soul? As Steven Smith tells it, the “new originalism” has made a disastrous Faustian bargain, with Jack Balkin playing Mephistopheles. It may have gained sophistication and intellectual respect, but it’s lost its ability to resist falsehood and manipulation—and lost the firm roots that made “That Old-Time Originalism” great.

To Smith, the new originalism lacks any claim to the Framers’ authority. Because it looks to the meanings of the Framers’ words, and not to their substantive expectations, it can be made by skilled sophists to justify things “the enactors wouldn’t have approved—would perhaps have deplored,” like rights to abortion or to same-sex marriage. If the Framers had foreseen such consequences, their Constitution “would have been reworded to avoid the unwanted results, or would not have been enacted at all.” That makes the new originalism irrational, a product (at best) of the Framers’ “ignorance” and lack of foresight, not their “mindful deliberation.” Instead, Smith counsels a return to the “original decision,” which (he argues) rules out any deplorable consequences that the Framers would have opposed.

Smith’s portrayal is tempting, too. But the old originalism was abandoned for a reason, namely that it was wrong. The Framers didn’t enact particular outcomes fixed in amber; they enacted various rules of law, rationally authorizing future actors to put those rules into effect. When those original legal rules require us to consider outside facts, their applications will change as the facts change on the ground. Which facts were supposed to matter is a question of law, language, and history—and not of policy preferences, whether the Framers’ or our own. In the end, the soul of originalism remains safe—and the only answer to originalism done badly is more originalism, done well.

Originalism as a Theory of Legal Change
38 Harv. J.L. & Pub. Pol’y 817 (2015) [SSRN]

Originalism, best understood, is not a theory of interpretation but a theory of our law. Its central claim is that the Founders’ law remains good law for us today. And it ought to be defended, if at all, based not on normative goals or abstract philosophy, but on positive features of American legal practice and of our rules for legal change.

A basic assumption of legal systems is that the law, whatever it is, stays the same until it’s lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today — unless something legally relevant happened along the way to change them. We expect assertions of constitutional change to provide this kind of historical pedigree; and a wide variety of approaches — “conservative” and “liberal,” from precedent to post-Founding practice — are defended as products of the Founders’ law. These ordinary practices show an implicit commitment to a deeply originalist premise: that our law today consists of their law, the Founders’ law, plus any lawful changes.

What’s important about the Constitution, on this account, isn’t so much what its text said, but what its enactment did — what it contributed to American law at the Founding, as preserved to the present day. Rather than look to original intentions, original public meaning, and so on, we should look to the original law — the law added to our system by the text’s enactment, according to the legal rules governing interpretation at the time. This “original-law originalism” helps us to understand, and hopefully to resolve, longstanding constitutional debates: originalists and nonoriginalists ought to disagree about the sources of today’s law, while different schools of originalists ought to disagree about the law’s content in the past.

The claim that we still take as our own the Founders’ law, as it’s been lawfully changed, is a claim about current society; it might be true or false. This Article merely argues that, if it is true, it’s the best reason to be an originalist — and, if it’s false, the best reason not to.

The “Constitution in Exile” as a Problem for Legal Theory
89 Notre Dame L. Rev. 2253 (2014) [SSRN]

How does one defend a constitutional theory that’s out of the mainstream? Critics of originalism, for example, have described it as a nefarious “Constitution in Exile,” a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible?

This objection is overblown. Legal rules don’t always directly reflect common agreement; they can also reflect those agreements indirectly, through conventions that operate at a higher level of abstraction. (We can have social agreement that we’re bound by the Internal Revenue Code, even though we don’t all agree on — let alone remember — everything the Code requires.) So long as we share certain conventions that lead to unconventional conclusions, out-of-the-mainstream theorists can accurately claim to describe our own legal system rather than a foreign or invented one that they hope to impose. The theorists’ job is to identify shared premises and to show that they really are shared, even in the face of widespread disagreement at the level of conclusions.

In any case, if this kind of objection did have force, it wouldn’t be a problem just for out-of-the-mainstream theories like originalism. Virtually no modern legal theory accepts every change in constitutional practice as actually changing the Constitution. Because history moves at its own pace, any theory with meaningful conditions for legal change will often be violated in practice. In other words, any Constitution worth its salt will spend a good bit of time in exile.

The “Unwritten Constitution” and Unwritten Law
2013 U. Ill. L. Rev. 1797 [SSRN]

America’s Unwritten Constitution is a prod to the profession to look for legal rules outside the Constitution’s text. This is a good thing, as outside the text there’s a vast amount of law — the everyday, nonconstitutional law, written and unwritten, that structures our government and society. Despite the book’s unorthodox framing, many of its claims can be reinterpreted in fully conventional legal terms, as the product of the text’s interaction with ordinary rules of law and language.

This very orthodoxy, though, may undermine Akhil Amar’s case that America truly has an “unwritten Constitution.” In seeking to harmonize the text with deep theories of political legitimacy and with daily practice in the courts, the book may venture further than our conventional legal sources can support. To put it another way, anything the “unwritten Constitution” can do, unwritten law can do better; and what unwritten law can’t do, probably shouldn’t be tried. Yet whether or not we accept the idea of an unwritten constitution, by refocusing attention on America’s rich tradition of unwritten law, Amar performs a great service to constitutional scholarship.

Constitutional Backdrops
80 Geo. Wash. L. Rev. 1813 (2012) [SSRN]

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution’s text?

This Article describes a category of legal rules that weren’t adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These are constitutional “backdrops”: rules of law that aren’t derivable from the text, but are left unaltered by the text, and are in fact protected by the text from various kinds of legal change. These rules may have been incorporated by reference; they may have been insulated from change by the usual political actors; or they may have been preserved as “defeaters” for the Constitution’s defeasible language. In each case, the text requires that the rules be given force, even though it doesn’t supply their content.

Backdrops are not only a legitimate category of legal rules, but a surprisingly important part of our legal system. Moreover, recognizing backdrops as a category may help shed light on otherwise insoluble disputes.

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Courts & Procedure

Dormant Commerce and Corporate Jurisdiction
2023 Sup. Ct. Rev. 213 [SSRN]

Since 1945, the Court has sought for substantive rules of personal jurisdiction in the depths of Fourteenth Amendment due process. Mallory v. Norfolk Southern Railway Co. returns “dormant commerce” doctrine to the field—a place it occupied for several decades in the twentieth century, before being swept away and largely forgotten after International Shoe.

This Article assesses the impact of dormant commerce’s return. Under today’s doctrines, plaintiffs like Robert Mallory may face an uphill battle; yet they also have some good arguments on their side. On original grounds, moreover, it’s far from clear that there is any dormant commerce doctrine, or that such a doctrine would have anything to say about the existence, powers, or internal affairs of state-created corporations in other states. At the Founding, states didn’t have to recognize the privileges of foreign corporations at all, so they could make consent to local jurisdiction a condition of those privileges’ local exercise.

By destroying the foundations of this earlier doctrine, the Supreme Court’s turn-of-the-century dormant commerce cases eventually led to the recentering of personal jurisdiction on due process instead—and on complex and contradictory jurisdictional rules, less concerned with enforcing the actual Fourteenth Amendment than with preserving the legacy of International Shoe. If our doctrines of personal jurisdiction aren’t going to make sense anyway, they may as well actually be law. Mallory doesn’t quite get us there, but at least it points us in the right direction.

Law Within Limits: Judge Williams and the Constitution
15 N.Y.U. J. Law & Liberty 110 (2023) [SSRN]

The Constitution of the United States does not have to mean whatever the Supreme Court says it means. Yet too much of legal practice assumes that it does. Most judges are lower-court judges, most litigators focus on lower-court litigation, and most legal education is aimed at lower-court practice—criticizing Supreme Court opinions in class but taking them as fixed on the exam. This focus makes it easy to confuse the law with “lower-court law,” the blend of actual legal rules and intervening precedent that shapes much of a lawyer’s ordinary experience.

Judge Stephen F. Williams did not make that mistake. Over the decades of his distinguished service on the U.S. Court of Appeals for the D.C. Circuit, he was no stranger to precedent or to case law; but he never took them as the sum and substance of the Constitution, either in his judicial service or his nonjudicial writings. Rather, he engaged in the careful consideration of text and history, with an eye to the economic causes and consequences of legal doctrine, and with the intellectual precision and fierce independence of mind familiar to anyone who knew him.

In so doing, he offered both lawyers and judges a model of intellectually serious adherence to law. Judge Williams should be honored for this adherence, for his honesty to his readers, and for his careful appreciation of the limits on his role.

Closing Reflections on the Supreme Court and Constitutional Governance
Presidential Commission on the Supreme Court of the United States (July 20, 2021) [SSRN]

In considering potential reforms, the Commission should take care to do the following:

  • Preserve judicial independence. The courts’ job is to apply the law to cases before them. We rely on courts, not only to reach individual judgments of guilt or civil liability, but to enforce the limited powers of different governments and different branches. Correcting for judges’ errors, even serious ones, by shifting these powers to another department would not make that enforcement more reliable. But it would harm the courts’ ability to act as neutral tribunals in particular cases—a crucial element of the rule of law, and for that reason a frequent target of autocracies the world over. America has a nearly unbroken tradition of judicial independence, and we should not break it today.
  • Put politics in its place. If you want a less political judiciary, you need a more political amendment process. You need to move political fights out of judicial conference rooms and into the statehouses and the halls of Congress. A “court reform” that ignores Article V is reform only in name—because a Court that practices constitutional amendment on the cheap, evading the Constitution in the guise of interpreting it, will forever be a target for partisan capture.
  • Beware unforeseen consequences. It is much harder to build than to destroy. Traditions of judicial independence built up over time can be demolished rather quickly, and many proposed reforms would have consequences far beyond what we expect. These might include:
    • measures that are likely unconstitutional absent amendment, such as supermajority requirements or 18-year terms;
    • measures that would be constitutional but dangerous and irresponsible, such as court-packing or jurisdiction-stripping;
    • measures that would be lawful but unwise, such as cameras in the Court.

The Commission’s greatest contribution might be to raise the profile of smaller-bore reforms, whose consequences can be better assessed (and, if necessary, more easily reversed).

There is much that could be improved about the Supreme Court. Over the last century, the Justices have too often mistaken their own rulings for the law they are charged to enforce. But these problems are not yet matters of universal agreement, and they can only be solved by the slow work of persuading others. There are no drastic policy changes that would avoid the need for this work, and there is no sudden crisis that calls out for major reform. Rather, the Commission’s first rule should be to do no harm.

The Unlimited Jurisdiction of the Federal Courts
106 Va. L. Rev. 1703 (2020) [SSRN]

Federal courts are courts of limited jurisdiction—but only in part. A federal court’s subject-matter jurisdiction is limited by the Constitution; its territorial, personal jurisdiction is not. Current doctrine notwithstanding, a federal court’s writ may run as far as Congress, within its enumerated powers, would have it go.

Today’s doctrine limits federal jurisdiction by borrowing Fourteenth Amendment principles thought to govern state courts. This borrowing blocks recoveries by injured plaintiffs, such as American victims of foreign terrorist attacks; and it’s become a font of confusion for procedure scholars, giving rise to incisive critiques of the Federal Rules.

It’s also a mistake. The Fourteenth Amendment didn’t impose new limits on state personal jurisdiction; it enabled federal enforcement of limits that already applied. Current doctrine retroactively forces the Fifth Amendment into the mold of the modern Fourteenth, transforming an expansion of federal power into a strict constraint on federal authority.

The federal courts’ territorial jurisdiction depends, in the first instance, on Congress’s powers. It may be that Congress can authorize fully global jurisdiction over any suit within Article III. If not, Congress may have ways to make better use of its jurisdictional powers at home. Either way, the existing mix of statutes and procedural rules seems fully valid. If the Constitution didn’t impose limits on Congress or on the federal courts, modern doctrine shouldn’t either.

Supreme Court as Superweapon: A Response to Epps & Sitaraman
129 Yale L.J. F. 93 (2019) [SSRN]

Is the Supreme Court’s legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, “How to Save the Supreme Court,” they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court’s legitimacy in order to save it. And their case that there is any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle is too powerful a weapon to leave lying around in a democracy; we should start thinking about disarmament.

Pennoyer Was Right
95 Tex. L. Rev. 1249 (2017) [SSRN]

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally.

To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn’t a matter of federal law, but of general law — that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if they did, their judgments wouldn’t be recognized elsewhere, in other states or in federal courts — any more than if they’d tried to redraw their borders.

As Pennoyer saw, the Fourteenth Amendment changed things by enabling direct federal review of state judgments, rather than making parties wait to challenge them at the recognition stage. It created a federal question of what had been a general one: whether a judgment was issued with jurisdiction, full stop, such that the deprivation of property or liberty it ordered would be done with due process of law.

Reviving Pennoyer would make modern doctrine make more sense. As general-law principles, not constitutional decrees, jurisdictional doctrines could be adjusted by international treaty — or overridden through Congress’s enumerated powers. The Due Process Clause gives these rules teeth without determining their content, leaving space for federal rules to govern our federal system.

In the meantime, courts facing jurisdictional questions should avoid pitched battles between “sovereignty” and “liberty,” looking instead to current conventions of general and international law. Pennoyer‘s reasoning can be right without International Shoe‘s outcome being wrong; international law and American practice might just be different now than they were in 1878 or 1945.

But if not, at least we’ll be looking in the right place. General law may not be much, but it’s something: the conventional settlement of the problems of political authority at the root of any theory of personal jurisdiction. Recovering those conventions is not only useful for its own sake, but a step toward appreciating our deep dependence on shared traditions of general law.

Five Questions After Atlantic Marine
66 Hastings L.J. 761 (2015) [SSRN]

The Supreme Court’s ruling in Atlantic Marine did a lot to clear up the law of forum selection. But it also left a number of live questions in place. This Article briefly discusses five of them. When a party wants to move a case to the selected forum, what procedures can it use, other than venue transfer or forum non conveniens? When is a forum-selection clause valid and enforceable, as a matter of state or federal law? If the clause isn’t valid, should a federal court still give it any weight? What happens if there are multiple parties or claims, and the clause applies to some but not others? And what do the Court’s new standards mean for parties appealing a forum-selection ruling, either before or after a final judgment? Judges are already wrestling with these questions, but the answers aren’t easy — and may well require another trip to the Supreme Court.

The Forum Selection Defense
10 Duke J. Const. L. & Pub. Pol’y 1 (2014) [SSRN]

Forum selection is hardly new, but courts still disagree on the basics. What do these agreements really do, and how should they be invoked? This Article suggests a few answers.

First, forum selection is a form of procedural waiver. A permissive agreement waives the parties’ objections to litigating in the chosen court. A mandatory one waives their rights to litigate somewhere else. Whether each agreement succeeds in waiving what it purports to waive is a question of procedure, not just contract law. So its validity rests on the procedural law of the forum — including, in a federal forum, federal law.

Second, forum selection can be raised as a defense. When a plaintiff files in the wrong court, a mandatory agreement gives that court a reason to deny recovery. Whatever other remedies are also available, such as venue transfer or forum non conveniens, the agreement can be invoked as an affirmative defense — whether in the answer, on summary judgment, or (under the right circumstances) in a motion to dismiss.

To some, these procedures may seem unwieldy; to others, unduly harsh. Perhaps we should handle forum selection in some other way. If so, we should amend our statutes or our Federal Rules. Until we do, though, we should use the rules we have — under which forum selection is a type of waiver, and a defense.

How Congress Should Fix Personal Jurisdiction
108 Nw. U. L. Rev. 1301 (2014) [SSRN]

Personal jurisdiction is a mess, and only Congress can fix it. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. With these goals in conflict, each new fact pattern has pulled precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.

Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are from the same state, that state’s courts are open. If not, the federal courts are. But today’s law, thinking about places instead of persons, sows unnecessary confusion by obliging federal courts to follow state jurisdictional rules.

This is a mistake, and something we can change. Following the invitation of a recent Supreme Court plurality, this Article suggests a system of nationwide federal personal jurisdiction, relieving federal courts of their jurisdictional dependence on state borders. In a federal forum, the court usually has undoubted authority over the parties–whose convenience can be addressed through well-crafted venue rules, backstopped by due process guarantees.

Because our procedural rules have grown up in dependence on state jurisdiction, the Article goes on to draft legislative language addressing the new system’s consequences for venue, choice of law, appeal rights, and other related issues. The Article’s goal isn’t to defend one specific proposal, but to encourage a variety of new proposals and, eventually, to change the direction of the debate. Scholars should spend more time thinking about the jurisdictional rules we would write for ourselves–which the Constitution actually lets us do, at least for federal courts. Only Congress can fix personal jurisdiction; we should start telling it how.

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Legal Theory

According to Law
46 Harv. J.L. & Pub. Pol’y 1271 (2023) [SSRN] [WWW]

What we ought to do, according to law, is not always what we ought to do, given the existence of law. Sometimes we merely wish to know what an existing legal system says we should do, based on the prevailing rules in a particular time and place. And sometimes we need to know what we should actually do, in the moral circumstances that this legal system presents.

Many fights between positivists and natural lawyers result from muddying these two inquiries. But we have good reasons, intellectual and moral, to keep them distinct. Prevailing social rules might have no moral force on their own, but those who make claims about them owe their audiences a moral duty of candor. And the stronger our moral commitments, the more reason we might have to approach existing legal systems warily.

Insisting that the law already reflects good morals can blind us to some very real flaws in our social rules—and to the need for some very hard work in reforming them. In this respect, common-good-constitutionalist claims too often have all “the advantages of theft over honest toil”: they can lead us to wish away precisely those disagreements and failings that make social and political institutions necessary.

The Official Story of the Law
43 Ox. J. Legal Stud. 178 (2023) (with William Baude) [SSRN] [WWW]

A legal system’s ‘official story’ is its shared account of the law’s structure and sources, which members of its legal community publicly advance and defend. In some societies, however, officials pay lip service to this shared account, while privately adhering to their own unofficial story instead. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which set of rules—if either—is the law?

We defend the legal relevance of the official story, on largely Hartian grounds. Hart saw legal rules as determined by social rules accepted by a particular community. We argue that this acceptance requires no genuine normative commitment; agreement or compliance with the rules might even be feigned. And this community need not be limited to an official class, but includes all who jointly accept the rules. Having rejected these artificial limits, one can take the official story at its word.

Finding Law
107 Cal. L. Rev. 527 (2019) [SSRN]

That the judge’s task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed—as a “fallacy,” an “illusion,” a “brooding omnipresence in the sky.” That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Article seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. The first, “positive” criticism is that law has to come from somewhere: judges can’t discover norms that no one ever made. But this claim blinks reality. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. Law is no different. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English—with a certain kind of reliability, but with no power to revise at will.

The second, “realist” criticism is that law leaves too many questions open: when judges can’t find the law, they have to make it instead. But uncertain cases force judges to make decisions, not to make law. Different societies can give different roles to precedent (and to judges). And judicial decisions can have many different kinds of legal force—as law of the circuit, law of the case, and so on—without altering the underlying law on which they’re based.

This Article claims only that it’s plausible for a legal system to have its judges find law. It doesn’t try to identify legal systems that actually do this in practice. Yet too many discussions of judge-made law, including the famous passages in Erie, rest on the false premise that judge-made law is inevitable—that judges simply can’t do otherwise. In fact, judges can do otherwise: they can act as the law’s servants rather than its masters. The fact that they can forces us to confront the question of whether they should—and, indeed, whether the Erie doctrine itself can outlive its mistaken premises. Finding law is no fallacy or illusion; the brooding omnipresence broods on.

Precedent and the Semblance of Law
33 Const. Comment. 417 (2018) [SSRN]

Like its author, Randy Kozel’s Settled Versus Right is insightful, thoughtful, and kind, deeply committed to improving the world that it sees. But despite its upbeat tone, the book paints a dark picture of current law and the current Court. It depicts a society whose judges are, in a positive sense, lawless — not because they disregard the law, but because they are without law, because they have no shared law to guide them. What they do share is an institution, a Court, whose commands are generally accepted. So Settled Versus Right makes the best of what we’ve got, reorienting judicial culture around a “second-best” stare decisis that leaves incorrect or “badly reasoned” precedents alone. If we can’t agree on legal rules, or even on legal theories, at least we can compromise on preserving what our legal institutions have done before.

Though the compromise is well-argued, it may fail to satisfy both sides. On the one hand, if we do still have any constitutional law, this law may take a view on our rules of stare decisis. The second-best theory is openly revisionary, rather than trying to capture our existing legal practice. Its pursuit of stability and impersonality may yield a system that’s more lawlike than lawful — a mere semblance of law, the way Kant saw “love of honor and outward propriety” as mere “semblances of morality,” sharing only an obedience to “strict laws of conduct for their own sake.” On the other hand, if our disagreements really have deprived us of any real law to apply, leaving judges to advance their values as best they can, then there are many other important values to consider. The second-best theory can’t tell us where stability and impersonality rank on that list.

Rather than patching up a broken system, we might use Kozel’s analysis to illuminate ways of deepening our existing areas of agreement on rules and theories of law. In this project stare decisis might aid us, if we see it as a fallback and not as a foundation-stone–as requiring us to act as if a court has decided a case correctly, but not to treat the court’s decision as establishing the standard of correctness. Maybe precedent is supposed to be a mere semblance; maybe that’s its proper role, letting us debate the contours of our actual law without requiring a thousand judicial flip-flops along the way. If so, then expanding our agreement on the law might indeed involve a cultural change: we ought to take the law rather more seriously, and courts and judges rather less so. Once we do, we might find that our world is a lot less lawless than we think.

The Law and Morals of Interpretation
13 Duke J. Const. L. & Pub. Pol’y 103 (2018) [SSRN]

Andrew Coan offers a fresh and forthright response to the long disagreement over constitutional interpretation. Instead of entering the debate between originalism and nonoriginalism, he proposes to settle it, through an amendment proclaiming nonoriginalism as the law of the land. Under the Coan Amendment, the entire Constitution would be construed “to accommodate the practical exigencies of human affairs and the evolving standards of decency that mark the progress of a maturing society.” This Amendment, he writes, would “eliminat[e] a huge quantity of basically unproductive debate about the legal and moral necessity of originalism,” thereby “redirect[ing]” that effort “to far more pressing matters of constitutional substance.”

Coan offers his suggestion as a “thought experiment,” not a “serious proposal.” This is a good thing, because the substantive effect of his proposal would be unambiguously bad. But even as a thought experiment, it’s unclear how much the Amendment shows. The legal debate over the status of originalism can indeed be settled by new law. But the moral status of originalism — and, indeed, of our law more generally — is not so easily settled.

The Law of Interpretation
130 Harv. L. Rev. 1079 (2017) (with William Baude) [SSRN]

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document’s meaning or a drafter’s intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call “the law of interpretation” has a claim to guide the actions of judges, officials, and private interpreters — even if it isn’t ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system.

This Article thus reframes the theory of statutory and constitutional interpretation, distinguishing purely linguistic questions from legal questions to which language offers no unique answer. It also has two concrete implications of note. It provides a framework for analyzing the canons of interpretation, determining whether they are legally valid and how much authority they bear. And it helps resolve debates over constitutional “interpretation” and “construction,” explaining how construction can go beyond the text but not beyond the law.

Saving Toby: Extortion, Blackmail, and the Right to Destroy
24 Yale L. & Pol’y Rev. 251 (2006) (Comment) [SSRN]

On the website SaveToby.com, one may find many endearing pictures of Toby, the cutest little bunny on the planet. Unfortunately, on June 30, 2005, the lovable Toby was scheduled to be butchered and eaten – unless the website’s readers sent $50,000 to save his life.

Though Toby’s owner has since granted him a temporary reprieve – until Nov. 6, 2006 – the threat raises a fascinating issue of law. Extortion statutes prohibiting threats to destroy property generally do not prohibit threats to destroy one’s own property. The law thus provides insufficient protection to a variety of resources on which others place value, including historic buildings, treasured paintings, and adorable bunny rabbits.

This Comment proposes that legislatures protect Toby under a new criminal offense of extortionate destruction. It presents the moral case for the offense by analogy to blackmail. Although destruction of property, like telling others’ secrets, is normally lawful, both can be rendered wrongful by the unjustified use of a coercive threat. Such a threat specifically aims at causing unpleasantness to the offeree; the owner commits to killing Toby only because he hopes someone else will pay him not to. Such threats cannot be defended by the economic or expressive values inherent in the traditional right to destroy, and shed light on the ongoing debate over the nature and wrongness of blackmail. The Comment concludes by suggesting model statutory language designed to safeguard property owners’ legitimate interests, while appropriately protecting future artworks, antiquities, and bunny rabbits from Toby’s sad fate.

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Constitutional Law

General Law and the Fourteenth Amendment
76 Stan. L. Rev. 1185 (2024) (with William Baude & Jud Campbell) [SSRN]

The Fourteenth Amendment’s Section One is central to our constitutional law. Yet its underlying principles remain surprisingly obscure. Its drafting history seems filled with contradictions, and there is no scholarly consensus on what rights it protects, or even on what kind of law defines those rights.

This Article presents a new lens through which to read the Fourteenth Amendment—new to modern lawyers, but not to the Amendment’s drafters. That lens is general law, the unwritten law that was taken to be common throughout the nation rather than produced by any particular state. Though later disparaged in the era of Erie Railroad Co. v. Tompkins, general law was legal orthodoxy when the Amendment was written.

To those who created the Fourteenth Amendment, general law supplied the fundamental rights that Section One secured. On this view, while Section One identified the citizens of the United States, it did not confer new rights of citizenship. Instead, it secured preexisting rights—rights already thought to circumscribe state power—by partially shifting their enforcement and protection from state courts and legislatures to federal courts and Congress. This general-law understanding makes more sense of the historical record than existing theories, which consider the Fourteenth Amendment solely in terms of federal or state law. And it has significant implications for modern Fourteenth Amendment doctrine, from state action to civic equality to “incorporation” to “substantive due process.”

The Misunderstood Eleventh Amendment
169 U. Pa. L. Rev. 609 (2021) (with William Baude) [SSRN]

The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written text, and the unwritten doctrines of state sovereign immunity, as one and the same—reading broad principles into its precise words, or treating the written Amendment as merely illustrative of unwritten doctrines. The result is a bewildering forest of case law, which takes neither the words nor the doctrines seriously.

The truth is simpler: the Eleventh Amendment means what it says. It strips the federal government of judicial power over suits against states, in law or equity, brought by diverse plaintiffs. It denies subject-matter jurisdiction in all such cases, to federal claims as well as state ones, and in only such cases. It can’t be waived. It can’t be abrogated. It applies on appeal. It means what it says. Likewise, the Amendment does not mean what it does not say: it neither abridges nor enlarges other, similar rules of sovereign immunity, derived from the common law and the law of nations, that limit the federal courts’ personal jurisdiction over unconsenting states.

Current case law runs roughshod over these distinction, exposing sound doctrines to needless criticism and sometimes leading the Court off track. Understanding the Amendment’s text lets us correct these errors and respect the unwritten law the Amendment left in place.

The Uneasy Case for the Affordable Care Act
75 Law & Contemp. Probs., no. 3, at 17 (2012) [SSRN]

The constitutionality of the Affordable Care Act is sometimes said to be an “easy” question, with the Act’s opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won’t be easy, and the arguments against it sound in law rather than politics.

Written to accompany and respond to Erwin Chemerinsky’s essay in the same symposium, this essay argues that each substantive defense of the mandate is subject to doubt. While Congress could have avoided the issue by using its taxing power, it chose not to do so. Congress has power to regulate commerce among the several States, but that might not extend to every individual decision involving economic considerations — walking rather than taking the bus, stargazing rather than renting movies, or carrying a gun in a school zone rather than hiring private bodyguards. Even the necessary-and-proper power, the strongest ground for the mandate, may stop short of letting Congress claim extraordinary powers to fix the problems created by its exercise of ordinary ones.

Because the mandate’s opponents can find some support in existing doctrines, a decision striking down the mandate needn’t be a drastic break from past practice. By contrast, a decision upholding the mandate would raise serious questions about the limits of Congress’s powers. To many, these questions offer good reasons for doubting whether existing doctrine gets it right — reasons having more to do with constitutional theory than political preference.

Corruption, Clients, and Political Machines: A Response to Professor Issacharoff
124 Harv. L. Rev. F. 62 (2011) [SSRN]

In his comment on political corruption, Professor Samuel Issacharoff questions traditional accounts that aim to squeeze money out of politics entirely. Instead, he focuses on the danger that political spending will promote private influence over government policy. In this response, Professor Stephen E. Sachs argues that “private influence” is itself too broad a category to control, and that campaign finance policy should be restricted to a more manageable scope. Professor Sachs argues that if protecting the government from private influence is too diffuse a goal, we can at least attempt to protect the government from itself, by ensuring that it does not channel public resources into self-sustaining political machines.

Full Faith and Credit in the Early Congress
95 Va. L. Rev. 1201 (2009) [SSRN]

After more than 200 years, the Full Faith and Credit Clause remains poorly understood. The Clause first issues a self-executing command (that “Full Faith and Credit shall be given”), and then empowers Congress to prescribe the manner of proof and the “Effect” of state records in other states. But if states must accord each other full faith and credit — and if nothing could be more than full — then what “Effect” could Congress give state records that they wouldn’t have already? And conversely, how could Congress in any way reduce or alter the faith and credit that is due?

This article seeks to answer these questions in light of Congress’s early efforts, from the Founding to the 1820s, to “declare the Effect” of state records — efforts which have largely escaped the notice of current scholarship on the Clause. Together with pre-Founding documents and the decisions of influential state courts, they suggest that the Clause was not generally understood to mandate the effect of state records in other states, but rather to leave such determinations to the legislative branch. Indeed, early interpreters of the Clause attributed far less importance to its first self-executing sentence, which was often understood as a rule of evidence, and far more importance to the congressional power to determine substantive effect. Recovering this original meaning not only saves the Clause from obscurity, but also offers opportunities for deliberation and legislative choice over the structure of our federal system.

Why John McCain Was a Citizen at Birth
107 Mich. L. Rev. First Impressions 49 (2008) (Commentary) [SSRN]

Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain’s birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a “natural born Citizen” eligible to be president.

A person need not be born on U.S. soil to be a citizen at birth. Section 1993 of the Revised Statutes, the statute defining foreign-born citizenship at the time of McCain’s birth, made citizens of certain children “born out of the limits and jurisdiction of the United States.” The Canal Zone was “out of the limits” of the United States — i.e., outside its borders and outside the Fourteenth Amendment’s grant of citizenship to those born “in the United States, and subject to the jurisdiction thereof.” But the United States had exclusive control of the Canal Zone at the time, arguably placing it within U.S. “jurisdiction” if not its limits. Thus, Chin claims, McCain was not “born out of the limits and jurisdiction of the United States,” falling instead into a “gap in the law.” When Congress changed the law in 1937, it would have been too late for McCain to become a natural born citizen (assuming, with Chin, that this means a citizen at birth).

Chin’s sophisticated analysis deserves to be taken seriously, but history may point in another direction. The key statutory language, “the limits and jurisdiction of the United States,” was first added in 1795. At the time, this language apparently referred to a unitary concept — the United States proper, the area within its borders-rather than two independent concepts of “limits” and “jurisdiction.” Like “metes and bounds” or “cease and desist,” the phrase was a mere repetition — a doublet, or (in the words of Judge Posner) one of the many “form[s] of redundancy in which lawyers delight.” To be born “out of the limits and jurisdiction of the United States,” it seems, was historically understood as synonymous — and not just coextensive — with being born outside the United States proper.

The historical usage of the phrase and its continuous construction over the first century after 1795 supports this reading. Early interpreters — including scholars, congressmen, and state and federal courts — repeatedly referred to the “limits and jurisdiction” of the United States to mean the same thing as the nation’s “limits” (i.e., its borders). Indeed, the term “limits and jurisdiction” was frequently used this way in contexts unrelated to citizenship. When separate requirements of limits and jurisdiction might otherwise have conflicted, courts and commentators uniformly adhered to a unitary interpretation of the statute. This interpretation was also consistent with the recognized purposes of the citizenship statutes, avoiding the absurdities of a restrictive reading. Only recently have some questioned this traditional interpretation; but because Congress did not alter the key language between 1795 and 1936, the provision’s original meaning was preserved up to the date of McCain’s birth. Thus, the balance of the evidence favors a view that John McCain — and other children like him — were citizens of the United States from birth.

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Legal History

Conflict Resolution at a Medieval English Fair
Eine Grenze in Bewegung: Öffentliche und private Justiz im Handels- und Seerecht 19 (Schriften des Historischen Kollegs Kolloquien 81, Albrecht Cordes & Serge Dauchy eds., 2013) [SSRN]

Recent studies of commercial conflict resolution have emphasized the role of informal norms and extralegal incentives as compared to the formal legal system. Yet the merchants who frequented medieval English fairs, whose example has been invoked as a precedent for modern dispute resolution, may not have fit this model. These merchants frequently litigated before the courts of the fairs, local tribunals of general jurisdiction that retained formal procedures and traditional methods of proof. Why did these traders rely on existing authorities rather than their own private institutions? And why did they appear before local tribunals, rather than alternative fora such as the English royal courts?

This essay examines the records of the fair court of St. Ives, one of England’s largest and best-documented fairs in the late thirteenth and early fourteenth centuries. It argues that the fair court managed to attract litigants in the face of jurisdictional competition through an effective alignment of legal and extralegal incentives. The court offered not only reputational sanctions, but also the coercive process necessary to govern a heterogeneous trading community. Although it lacked the reach and authority of a royal court, it offered merchants greater speed and flexibility in the application of specific customs, relying on community knowledge rather than official fact-gathering. The fair court of St. Ives provides an illuminating example of the interaction of law and society, demonstrating how fragile legal systems can succeed by making use of, and coordinating with, extralegal norms and incentives to accomplish official ends.

From St. Ives to Cyberspace: The Modern Distortion of the Medieval “Law Merchant”
21 Am. U. Int’l L. Rev. 685 (2006) [SSRN]

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or “law merchant.” This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a transnational law of their own creation. The standard history has been accepted by legal scholars across the ideological spectrum, by economists and political scientists, and by those drafting new regimes to govern Internet commerce.

This Article argues that the traditional view is deeply flawed. Returning to the original sources – especially the court rolls of the fair of St. Ives, the most extensive surviving records of the period – it demonstrates that merchants in medieval England were substantially subject to local control. Commercial customs and substantive laws varied significantly across towns and fairs, and did not constitute a coherent legal order. The traditional interpretation has been retained, not for its accuracy, but for ideological reasons and for its long and self-reinforcing pedigree. This Article takes no position on the merits of shielding multinational actors from domestic law; it merely denies that the Middle Ages provide a model for such policies.

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Working Papers

John McCain’s Citizenship: A Tentative Defense
Aug. 19, 2008 [SSRN]

Sen. John McCain was born a U.S. citizen and is eligible to be president. The most serious challenge to his status, recently posed by Prof. Gabriel Chin, contends that the statute granting citizenship to Americans born abroad did not include the Panama Canal Zone, where McCain was born in 1936. When Congress amended the law in 1937, he concludes, it was too late for McCain to be “natural born.”

Even assuming, however, that McCain’s citizenship depended on this statute – and ignoring his claim to citizenship at common law – Chin’s argument may be based on a misreading. When the statutory language was originally adopted in 1795, it was apparently read to address all children born outside of the United States proper, which would include those born in the Canal Zone. Patterns of historical usage, early interpretations of the citizenship statutes, contemporaneous expressions of the statutes’ purpose, and the actual application of the statutes to cases analogous to McCain’s all confirm this understanding. More recently, the acquisition of America’s outlying possessions lent plausibility to new interpretations of the law. But because the key language was never altered between 1795 and 1936, its original meaning was preserved intact, making John McCain a U.S. citizen at birth.

The Feigned Issue in the Federal System
Nov. 26, 2007 [SSRN]

This paper explores the history and doctrinal implications of a now-obscure procedural device, the feigned issue, in the U.S. federal judiciary. The feigned issue was first developed in England, as a tool of the Chancery to resolve a single factual issue through a jury trial at common law. The procedure took the form of an action at law based on false declarations in the pleadings, usually concerning a fictitious wager, and was commonly used in American state and federal courts until the mid-nineteenth century.

Because the federal judiciary has never employed separate courts of law and equity – the institutional division that gave birth to the feigned issue in England – this essay seeks to explain how and why the feigned issue survived in the federal system, and why the procedure disappeared when it did. Today, feigned issue has become a term of legal opprobrium that signifies a false case, an effort to deceive the court or to evade the jurisdictional standing requirements of Article III. The essay identifies three potential reasons for this change.

The first was an evolution of the substantive law of wagering at the state level. Once wagering contracts in general were no longer enforceable, the feigned issue became regarded as more of an anachronism than a legitimate judicial procedure.

The second was a change in equity practice. Because an equity court awarding a feigned issue could also order alterations in the procedures or evidentiary rules of the common-law trial – in particular, the testimonial disqualification of parties for interest – the procedure served as a flexible tool of introducing oral evidence into equity practice, as well as an early form of case-by-case fusion of law and equity. As oral evidence and cross-examination began to enter equity practice generally, the need for the feigned issue as an evidentiary tool diminished substantially.

The third and final factor was the advent of fusion in the state systems. While this process did not affect the federal courts directly, it did introduce an alternative to the feigned issue, namely the simple empanelling of an advisory jury. Once the state systems eschewed fictions in favor of direct orders for a jury trial, the federal courts began to follow suit, even while retaining the older terminology of the feigned issue.

Alternative Theories of the Crime
May 24, 2007 [SSRN]

To convict a defendant, a jury must unanimously find “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” But some facts can be found less unanimously than others. Murder, for example, is illegal regardless of when it occurs, who the victim is, or how it is accomplished. But can jurors disagree on crucial facts – whether the defendant murdered X on Tuesday or Y on Wednesday, whether the victim was strangled or run over by a bulldozer – and still convict the defendant of murder tout court? Or must even trivial disputes, such as whether the murderer held the gun in his left hand or his right, always invalidate a “patchwork verdict” of guilt?

The Supreme Court’s attempts to solve the problem in Schad and Richardson only convinced the Justices of the “impossibility of determining, as an a priori matter, whether a given combination of facts is consistent with there being only one offense.” But it is a problem capable of solution, which this essay seeks to provide. The reason why courts and commentators have not yet produced a workable answer is that they have largely been asking the wrong question. What matters is not the scope of the criminal offense, as defined by the statute, but rather the nature of the factual beliefs held by the jurors and the evidence on which they relied. Like lesser-included-offense instructions, special unanimity instructions could be given when and only when the evidence merits them. Such a system would not only be theoretically coherent, but it would also be minimally disruptive to existing trial procedure.

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Briefs

Mallory v. Norfolk Southern Railway Co.
No. 21-1168 (U.S. cert. granted Apr. 25, 2022) [SSRN]

Mallory v. Norfolk Southern Railway Co. presents the question whether the Fourteenth Amendment’s Due Process Clause prohibits Pennsylvania from requiring corporations to consent to general jurisdiction in order to do business there. The answer to that question is no. Neither the Court’s precedent nor the original Fourteenth Amendment forbids Pennsylvania from requiring such consent, nor from exercising jurisdiction once consent is secured.

What may invalidate Pennsylvania’s requirement, however, is the Court’s modern doctrine on the “dormant” component of the Commerce Clause, which is currently thought to restrict state laws imposing serious burdens on out-of-state economic actors. The difference between due process and dormant commerce matters: substantive requirements of the Fourteenth Amendment may not be relieved by Congress or by treaty, while dormant commerce restrictions might be. The Court should not limit state jurisdiction under a mistaken due process theory that in passing also limits the authority of Congress (and of the President and Senate). Instead, the regulation of interstate corporate activity should be left up to the Interstate Commerce Clause, to be addressed by the state courts on remand.

Franchise Tax Board v. Hyatt
139 S. Ct. 1485 (2019) (No. 17-1299) (with William Baude) [SSRN]

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them.

Hall correctly held that States lack a constitutional immunity in sister-state courts. The Founders viewed each State as immune from such suits under the common law and the law of nations. Before the Constitution’s enactment, this was plainly not a constitutional right, and nothing in the Constitution changed that. Thus, Hall properly rejected the argument that there is a “federal rule of law implicit in the Constitution that requires all of the states to adhere to the sovereign-immunity doctrine as it prevailed when the Constitution was adopted.”

Hall went too far, however, in denying that “the Constitution places any limit on the exercise of one State’s power to authorize its courts to assert jurisdiction over another State,” and in reducing sister-state immunity to a “matter of comity.” In particular, Hall was likely wrong to assume that a State’s abrogation of immunity in its own courts could be projected outward so as to bind other state and federal courts.

In an appropriate case, these principles might justify revisiting and narrowing portions of Hall. Yet this case is a poor vehicle for doing so. Because the case has been improperly framed by the parties and cannot be resolved properly without further briefing, the Court should dismiss the writ as improvidently granted. Alternatively, it should dismiss for lack of jurisdiction—or, if satisfied of its jurisdiction, should affirm.

BNSF Railway Co. v. Tyrrell
137 S. Ct. 1549 (2017) (No. 16-405) [SSRN]

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

  1. That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;
  2. That Congress has not sought to license the state’s exercise of jurisdiction; and
  3. That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is it unnecessary to decide, it has the further defect of being wrong.

Respondents’ case hinges on whether Congress in 1910 affirmatively licensed state personal jurisdiction over railroads doing business within state lines. It did not. The 1910 Act specified which federal courts might hear certain actions under the Federal Employers’ Liability Act. It did not say which state courts might do so—only that state courts might do so. Later discussions of doing-business jurisdiction in fact referred to a preexisting standard for state personal jurisdiction, established well before International Shoe. Respondents’ theory gets things backwards: Congress did not reshape state personal jurisdiction to fit the statutory rules for federal courts; rather, it shaped the statutory rules for federal courts to fit preexisting rules for state personal jurisdiction.

While Congress in 1910 left state personal jurisdiction as it found it, this Court’s modern decisions have not. Respondents do not ask for Daimler to be overruled, nor do they deny that Daimler requires reversal in the absence of a statutory override. This is enough to end the case.

That being so, the Court has no need to reach an important constitutional question. This Court has never squarely decided whether Congress may license the exercise of state personal jurisdiction that might otherwise be invalid. It should not do so in this case. “[N]ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,” and here there are further reasons for reticence. The United States did not participate before the Montana courts, and limiting Congress’s power in this case may have the effect of striking down other federal statutes or may undermine ongoing legislative efforts and treaty negotiations. If the Court is going to restrict the power of Congress, it should wait for a case in which Congress has actually tried to use the power in question, and in which the United States has been available to defend it.

The Court may be tempted to reach the issue regardless, simply because it seems easy—so easy, in fact, as to obviate any need for caution. Congress cannot license what the Constitution forbids, and the Constitution is widely thought to forbid particular types of personal jurisdiction. Yet that widespread belief is actually mistaken. When originally enacted, the Fifth and Fourteenth Amendments did not themselves impose any fixed limits on personal jurisdiction. They required only that a court have jurisdiction, over the subject matter as well as the parties—with the substantive doctrines of personal jurisdiction supplied by separate bodies of general and international law. The Fourteenth Amendment, in particular, was correctly understood by this Court in Pennoyer v. Neff to create a federal question of what had been merely a matter of general law, outside the scope of Article III appellate review. Modern doctrine is correct to hold that federal courts can review state judgments for their compliance with jurisdictional standards. But it is wrong to suggest that those standards are supplied by the Constitution itself, and so may not be altered by treaty or by Congress’s enumerated power under Article IV.

To be clear: this brief does not suggest that the Court conduct its own inquiry as to the original law of due process, or even discuss the issue in any way. The necessary arguments were not briefed at the certiorari stage; they were not raised in the Montana courts; and they have been overlooked by decades of contrary decisions. Yet if the Court now finds itself in a deep hole of incorrect precedent, the least it can do is to stop digging. It should reverse and remand this judgment on statutory grounds, and it should wait for an appropriate case in which to consider the powers of Congress.

Atlantic Marine Construction Co. v. U.S. District Court
571 U.S. 49 (2013) (No. 12-929) (with Jeffrey S. Bucholtz & Daniel S. Epps) [SSRN]

The parties in this case defend two sides of a many-sided circuit split. This brief argues that a third view is correct.

If a contract requires suit in a particular forum, and the plaintiff sues somewhere else, how may the defendant raise the issue? Petitioner Atlantic Marine Construction Company suggests a motion under Federal Rule of Civil Procedure 12(b)(3) or 28 U.S.C. § 1406, on the theory that the contract renders venue improper. Respondent J-Crew Management, Inc. contends that venue remains proper, and that the defendant’s only remedy is a transfer motion under § 1404.

Both sides are wrong. Forum-selection clauses have no effect on venue, which is defined by statute. While parties can waive their venue objections in advance, they cannot destroy proper venue by private agreement.

At the same time, an exclusive forum-selection clause does more than just inform a court’s discretion under § 1404. If the clause is valid and enforceable, it waives the plaintiff’s right to sue in an excluded forum, offering the defendant an affirmative defense to liability in that forum and the right to have the suit dismissed.

The Federal Rules already specify the correct method of raising this defense: it must be affirmatively stated in the answer, which the defendant may accompany with an immediate summary judgment motion. Often, as here, the parties’ agreement will be incorporated in the complaint. In that case, the defendant may alternatively raise the defense in a pre-answer Rule 12(b)(6) motion to dismiss, or a post-answer Rule 12(c) motion for judgment on the pleadings.

The Rules’ default procedures are practical as well as correct. They enable defendants to obtain quick and decisive enforcement of their forum-selection clauses, through the same procedures used to enforce binding prior judgments, settlements, or arbitral awards. And while there may be some practical advantages to treating forum-selection clauses as if they affected venue, these advantages have been greatly exaggerated — and, in any case, provide no reason to misapply the Federal Rules.

Here, the parties agreed that their disputes “shall be litigated” in state or federal court in Norfolk, Va. J-Crew violated that agreement by suing in the Western District of Texas. Assuming, as the Court should, that the clause at issue is valid and enforceable, the complaint could have been dismissed by motion under Rule 12(b)(6). Instead, Atlantic Marine made this forum-selection defense under the label of Rule 12(b)(3). That may have been good enough to raise the issue, but the Court should leave such preservation questions to the court of appeals in the first instance. Because that court (and the district court) proceeded on the erroneous assumption that § 1404 was the only available remedy, this Court should identify the correct procedure, vacate the judgment, and remand the case for further proceedings.

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