Faculty Bibliography

Whether the Equal Rights Amendment is—right now—part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, several of them only after the seven-year deadline in its proposing resolution. After President Biden’s statement disregarding the deadline and describing the ERA as the Twenty-Eighth Amendment, its doubtful validity may provoke a minor constitutional crisis. But there may be a legal answer. Not only in the resolution proposing the Bill of Rights, but also in those proposing the Twelfth and Seventeenth Amendments, Congress included operative language that modified the legal force of the newly proposed text. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that under Article V, the resolution is the amendment—the constitutional change proposed by the resolution as a whole, not just by the particular language it proposes to append. This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA’s deadline rendered it incapable, even with thirty-eight states’ assent, of making any valid change to the Constitution’s text. The recent lobbying efforts on its behalf, including President Biden’s statements, are therefore seriously misguided. In a divided society, losing consensus on the Constitution’s text carries an especially high cost. The National Archives is the wrong place to play with fire.

The cases of Galette v. N.J. Transit Corp. and N.J. Transit Corp. v. Colt reduce to a simple question: who is the legal person before the Court, against whom the plaintiffs request relief? The common-law immunity States retained at the Founding was a personal immunity, one belonging to specific legal persons, namely the sovereign States. Each State may decide the internal structure of its government; yet each also has power to create separate and distinct legal persons that are not sovereign, appearing before courts as creatures of States rather than States themselves. That is what New Jersey did. It created a new public corporation—petitioner New Jersey Transit Corporation—whose appearances in court are not appearances of the State, whose judgment debts are not debts of the State, and whose adversely decided issues are not issues decided against the State. And the Corporation in turn created its own subsidiary corporations—including petitioner NJ Transit Bus Operations, Inc.—as legal persons distinct even from itself, still more plainly the sort of “lesser entities” that lack the State’s sovereignty and immunity. The only reason this case might seem difficult is that this straightforward historical rule has since been swallowed up by judicial confusion. The Court should restore the original test: whether the requested relief acts against a separate legal person (which is amenable to federal process) or against a sovereign State (which is not). Because the State of New Jersey chose to create the Corporation as a distinct legal person from itself, with neither bound by judgments against the other, the Corporation cannot claim the State’s immunity.

This letter brief, submitted in King v. Bon Charge, No. 1:25-cv-105-SB (D. Del. filed Jan. 24, 2025), argues that the Court should apply Rule 4(k)(2) to exercise jurisdiction over a foreign defendant sued on a federal claim. In particular, it argues (1) that the Court should adopt other circuits’ practice of expecting a defendant who resists Rule 4(k)(2) jurisdiction to name a state where jurisdiction might be available, (2) that Rule 4(k)(2) incorporates actual Fifth Amendment standards, not the state-mirroring standards that many thought might apply before Fuld v. PLO, and (3) that the original Fifth Amendment did not restrict Congress’s power to vest the courts with personal jurisdiction over defendants found abroad.

Article V recognizes two ways that the People might speak: through regular legislatures and through popular conventions. Over time, the convention method has become moribund, mirroring the decline of Article V as a whole. Americans now rely on courts to solve constitutional problems that were supposed to be solved with voting and politics. But we could regain many of the benefits of conventions through a “rolling” convention, in which states begin the work of constitutional change. Through a new amendment, we could create another avenue for change that flips the order of Article V, letting three fourths of states propose amendments that two thirds of Congress could ratify. Flipping Article V preserves the constitutional threshold for amendment, the chance for national deliberation, and the relative power of the states. But it breaks some of the modern barriers to amendments—and helps return constitutional politics to the political process.

Jonathan Gienapp’s Against Constitutional Originalism accuses originalism of a kind of self-defeat, arguing that the Founders weren’t really originalists. But like Jefferson Powell’s similar argument forty years ago, which encouraged a shift from original intent to original meaning, Gienapp’s work may only help along a similar shift, this time from original meaning to our original law.Gienapp makes four main claims: that the Founders’ Constitution wasn’t conventional law; that the Founders couldn’t agree on how to read it; that much of their fundamental law was unwritten; and that no originalist theory can account for this. As we argue, the first claim is bunk; the second overstated; the third true, but no problem for originalism; and the fourth a theoretical claim that the book’s history utterly fails to defend. The Constitution was indeed law, understood as such by its contemporaries, and coexisting with other bodies of law in ways that originalists routinely respect. Far from proving the case against originalism, Against Constitutional Originalism only strengthens the case for originalism, done well.

The temptation in Fuld v. PLO is to treat the United States as if it were simply one big state. The State of Nevada, even were it the size of the entire United States, still could not call to answer every defendant who attacked a Nevadan abroad. As this limit is enforced under the Fourteenth Amendment’s Due Process Clause, and as the Fifth Amendment has a Due Process Clause too, it is tempting to conclude that the United States labors under precisely the same constraint, with the only difference being one of size. This temptation is to be resisted, for the United States is not simply one big state. True, neither the United States nor any state may deprive a person of life, liberty, or property without due process of law. But the United States and a single state differ greatly with respect to the external limits on their sovereign authority—that is, with respect to the principles the Due Process Clauses enforce and for which those Clauses have “become a refuge.” State laws are restricted to each state’s sphere of authority, serving as “rules of decision” only “in cases where they apply.” Yet Acts of Congress can be “the supreme Law of the Land,” overriding contrary doctrines and extending beyond our borders to protect Americans abroad. The Supreme Court should not bind the United States with the fetters worn by individual states simply because the latter have become so familiar—especially when neither the original Constitution nor this Court’s precedents require it. As Justice Story recognized, Congress could have “a subject of England, or France, or Russia * * * summoned from the other end of the globe to obey our process, and submit to the judgment of our courts”; such a statute might violate “principles of public law, public convenience, and immutable justice,” but a federal court “would certainly be bound to follow it, and proceed upon the law.” If Congress had such powers at the Founding, it never lost them since. So long as Congress’s power to call foreigners to answer is at least as broad as its power to regulate their conduct abroad, the respondents in Fuld were obliged to appear in the district court, and the plaintiffs’ claims must be allowed to proceed.

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 twenty-three percent 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.

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.

Responding to these views requires some reflection on the nature of voting and parenting both. At root, Stephanopoulos and Fishkin don’t think parents are the right people to represent their children politically, and we do. We unpack these theoretical differences as to both voting and parenting in Part I. In Part II, we address Stephanopoulos’s and Fishkin’s concrete policy proposals. A last note: While our response below naturally focuses on points of disagreement, as that is the way of these things, that focus shouldn’t detract from the crucial fact that all four of us—from different political perspectives—think the status quo tilts politics in ways that hurt children and should be changed. The discussion below also shouldn’t detract from our gratitude to these two extraordinary scholars for giving us the benefit of their serious engagement.

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.”

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 wriCen. 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 leCing 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

Erie Railroad Co. v. Tompkins is the most important case that no one who isn’t a lawyer has ever heard of. Viewed narrowly, it holds that a federal court, when deciding issues subject to state law, has to defer to the opinions of state courts. That proposition is often false. But the problem with Erie isn’t this narrow result; the problem is its reasoning. As the Supreme Court would later put it, Erie overruled, not just a past line of cases, but “a particular way of looking at law.” Erie rejected a category of law—sometimes called general common law, or just “general law”—which was fundamental to our federal system, and the absence of which has left us unable to understand basic aspects of American jurisprudence. This lecture, delivered on the occasion of the author’s appointment as Antonin Scalia Professor of Law, explores what life will look like after Erie—how the law will operate on the happy and glorious day when Erie has been overturned. This is not a prediction that Erie will be overturned. Though some legal seismologists have discerned rumblings in that direction, we have no guarantee that courts will get things right: the arc of jurisprudence does not always bend toward intellectual coherence. Rather than make predictions, it sets out a research agenda, attempting to think through some of the problems overruling Erie may pose—so that when the time comes to reconsider Erie, those who do so will have a clear path to follow. The most important feature of life after Erie may not be any particular doctrines the courts enforce, but the attitude with which they enforce them. To reject Erie is to recognize, as Francis Bacon put it, and as Justice Scalia noted in Rogers v. Tennessee, that the judge’s “office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.” When this power to make law is conferred by a statute or a constitution, maybe a judge can lawfully wield it. But one hopes that, after Erie, we will recognize this authority as one that no officials, least of all judges, have any right to arrogate to themselves.

In Common Good Constitutionalism, Professor 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.

What we ought to do, according to law, isn't always what we ought to do, given the existence of law. Sometimes we need to know what a legal system says we should do, under rules prevailing in a certain time and place. And sometimes we need to know what we should actually do, in the moral circumstances 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. Even if prevailing social rules have no moral force of their own, those who make claims about them still owe their audiences a moral duty of candor. And the stronger our moral commitments, the more we ought to approach existing legal systems warily. Insisting that the law already reflects good morals can blind us to some very real flaws in our prevailing rules--and to the need for some very hard work in reforming them. To this extent, 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 so necessary.

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.

What power lets Congress exempt harassment allegations from NDAs?

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.

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 how originalists can tolerate substantial 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 very nice if the correct constitutional theory 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.

Would the outcome in Dobbs put originalism in doubt?

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 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.

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.

A pending rule confuses legal and moral authority.

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.

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 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.

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.

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 law♦like♦ than law♦ful♦ -- 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.