David L. Shapiro

William Nelson Cromwell Professor of Law, Emeritus

Langdell Library 336

617-495-4618

Assistant: Maura Kelley / 617-495-4642

Biography

David Shapiro is the William Nelson Cromwell Professor of Law (Emeritus) at Harvard Law School. He earned his B.A. from Harvard College, magna cum laude, in 1954, and his LL.B. from Harvard Law School, summa cum laude, in 1957. After working as an associate at the law firm of Covington & Burling, he clerked for Supreme Court Justice John M. Harlan prior to joining the Harvard Law School faculty in 1963. He served as Deputy Solicitor General in the U.S. Department of Justice from 1988-1991. He is the author of several books, including Federalism: A Dialogue (Northwestern Univ. Press, 1995) , and Civil Procedure: Preclusion in Civil Actions (Foundation Press, 2001), a co-author of Hart and Wechsler’s The Federal Courts and the Federal System, the most recent (sixth) edition of which was published by Foundation Press in 2009, and the author of several dozen articles on a range of subjects including federal jurisdiction, civil procedure, and legislation. His service on a number of projects for the American Law Institute includes work as a Reporter and Adviser for the Restatement, Second, of Judgments.

Areas of Interest

Richard H. Fallon, Jr., Jack L. Goldsmith, John F. Manning, David L. Shapiro & Amanda L. Tyler, Hart and Wechsler's The Federal Courts and the Federal System (7th ed., 2019 Supp.).
Categories:
Government & Politics
,
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Jurisdiction
,
Courts
,
Federalism
,
Supreme Court of the United States
,
Separation of Powers
,
Legal Education
Type: Book
Abstract
This supplement brings the principal text current with recent developments in the law.
David L. Shapiro, An Incomplete Discussion of "Arising Under" Jurisdiction, 91 Notre Dame L. Rev. 1931 (2016).
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Legal Profession
,
Constitutional Law
Sub-Categories:
Jurisdiction
,
Federalism
,
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Abstract
My purpose in this brief Essay is to expand on this theme as it played out in Dan Meltzer’s role as collaborator, friendly critic, and keen analyst, and to do so by exploring a problem that in some ways lies at the heart of our elaborate system of judicial federalism, even though (perhaps because it does not arise that often) it has received somewhat less attention than it deserves. That problem addresses the nature of federal judicial authority—and especially the appellate jurisdiction of the Supreme Court—when a federal issue is embedded in, or when its determination may affect the resolution of, a question of state law. The story as told here begins with, and radiates out from, a seventy-year-old decision of the Supreme Court, Standard Oil Co. of California v. Johnson. I want to focus on its consideration over the years by Dan and me, and on its effect on our thinking about related issues. This story, I think, tells something not only about the fascination of the field we both enjoyed so much, but also about both the delights of a long collaboration on a respected book and the joys of colleagueship and dialogue. While the narrative deals only with what ended up in print, beneath the surface lie many wonderful conversations about this and related problems. Telling the story requires some background and warrants a concluding effort to bring my own thinking up to date.
Richard H. Fallon, John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System (Found. Press 7th ed. 2015).
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Legal Profession
Sub-Categories:
Jurisdiction
,
Federalism
,
Separation of Powers
,
Supreme Court of the United States
,
Legal Education
Type: Book
Abstract
The Seventh Edition of this classic casebook brings it thoroughly up to date (as of December 31, 2014) and includes numerous revisions to enhance its teachability. The book’s depth of coverage and intellectual rigor remain unrivaled. In addition, each chapter has been carefully revised with an eye to making the material more accessible to students. A number of new introductory and explanatory notes help to frame the key issues raised by the materials. Moreover, the editors’ judicious revision and trimming of older material will permit assignments of manageable length, without sacrificing the scholarly comprehensiveness that has always been the Hart & Wechsler hallmark.
David L. Shapiro, Ex Parte Young and the Uses of History, 67 N.Y.U. Ann. Survey Am. L. 69 (2011).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Eleventh Amendment
,
Fourteenth Amendment
,
Federalism
,
Courts
,
State & Local Government
Type: Article
Abstract
Ex parte Young, an iconic decision that recently celebrated its centennial, was not very well-received at birth but most scholars, now and in the recent past, agree that the case was correctly decided. Yet the range of justifications for the result, and the analyses of its implications, are strikingly diverse. (The disagreements about its significance are exemplified by the three opinions in the Supreme Court’s recent decision in Va. Office for Prot. & Advocacy v. Stewart.) How can such a range of views exist about so famous and esteemed a decision – a debate that extends to such matters as its rationale, its novelty, and even the proper characterization of its holding, the lessons it teaches about state-federal relations, and the proper role of the federal courts? And what, if anything, does this tell us about the nature of legal scholarship? These are the questions addressed in this article. Briefly stated, the conclusions reached are that over-reading of the case by scholars and courts has led to a backlash in which the case has been undervalued, and that arguments about what the case “really” stands for tend to mask more important questions about both the substance and the process of constitutional interpretation.
David L. Shapiro, The Story of Lincoln Mills: Jurisdiction and the Source of Law, in Federal Courts Stories 389 (Vicki C. Jackson & Judith Resnik eds., 2009).
Categories:
Labor & Employment
,
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Jurisdiction
,
Separation of Powers
,
Federalism
,
Supreme Court of the United States
,
Labor Law
Type: Book
Abstract
Decided over a half-century ago, Textile Workers Union v. Lincoln Mills of Alabama still stands as a landmark in two fields of federal law: labor relations and the sources and scope of federal jurisdiction. In the former, the decision set the federal courts on the course of developing a federal common law of labor relations governing the interpretation and effect of collective bargaining agreements and related contracts. In the latter, the decision is as significant for the road not taken - passing on the validity of the concept of “protective jurisdiction” - as for the choice that was made. Moreover, the case is fascinating both because of the almost-forgotten controversy surrounding the decision and the statute it interpreted and because of the different visions of the federal judicial role that lay just beneath the surface of the majority and dissenting opinions.
David L. Shapiro, The Role of Precedent in Constitutional Adjudication: An Introspection, 86 Tex. L. Rev. 929 (2008).
Categories:
Government & Politics
,
Legal Profession
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Legal & Political Theory
Type: Article
Abstract
Much scholarly interest in recent years has centered on the proper role of precedent in constitutional adjudication, especially in the Supreme Court. This essay seeks to contribute to this lively and important debate, first, by summarizing (and categorizing) the principal approaches to the issue that have been advanced by scholars and judges, second, by explaining and defending my own position, and, finally, by testing that position in the context of an especially difficult problem. In the process, the essay seeks to cast light on some broader questions about the role of theory in the judicial process.
David L. Shapiro, The Story of Celotex: The Role of Summary Judgment in the Administration of Civil Justice, in Civil Procedure Stories 343 (Kevin M. Clermont ed., 2d ed. 2008).
Categories:
Civil Practice & Procedure
,
Legal Profession
,
Government & Politics
Sub-Categories:
Practice & Procedure
,
Supreme Court of the United States
,
Legal History
Type: Book
David L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View, 82 Notre Dame L. Rev. 59 (2006).
Categories:
Government & Politics
,
Legal Profession
,
Criminal Law & Procedure
,
Constitutional Law
,
Civil Practice & Procedure
Sub-Categories:
Prison Law & Prisoners' Rights
,
Jurisdiction
,
Separation of Powers
,
Supreme Court of the United States
,
Legal & Political Theory
Type: Article
Abstract
This article considers a number of timely and significant issues in the interpretation and application of the Habeas Corpus Suspension Clause of the Constitution. The article first discusses several important preliminary issues, including (1) whether the Suspension Clause imposes an affirmative obligation on the federal government; (2) if so, the nature of that obligation; (3) the locus of authority to suspend the writ; (4) the limitations on the availability of the writ that may violate the Suspension Clause, and (5) the availability of judicial review of the validity of a purported suspension. The article then turns to the principal question addressed: the effect of a valid suspension of the writ upon underlying rights.
David L. Shapiro, Justice Ginsburg's First Decade: Some Thoughts About Her Contributions in the Fields of Procedure and Jurisdiction, 104 Colum. L. Rev. 21 (2004).
Categories:
Legal Profession
,
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Practice & Procedure
,
Jurisdiction
,
Federalism
,
Supreme Court of the United States
,
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
David L. Shapiro, Civil Procedure: Preclusion in Civil Actions (Found. Press 2001).
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Practice & Procedure
,
Federalism
Type: Book
Abstract
Civil Procedure: Preclusion in Civil Actions begins with an exploration of the theoretical basis for the principle of preclusion in civil litigation. Part II will then develop the basic rules of preclusion that apply when the second action is between the same parties and occurs in the same jurisdiction as the first. Part III focuses on the difficulties of determining when and to what extent each party in the second action is either “the same” as one of the parties in the first, or w as sufficiently represented by one of the parties in the first proceeding to bring into play the rule s developed in Part II. (This part will include discussion of problems of preclusion in the context of class actions.) Part IV then expands the inquiry to consideration of the effect of a judgment on non-parties to the first proceeding, and finally, Part V will explore the inter-jurisdictional aspects of the law of preclusion.
David L. Shapiro, Walter V. Schaefer, The Control of "Sunbursts": Techniques of Prospective Overruling, 42 N.Y.U. L. Rev. 631 (1967), 75 N.Y.U. L. Rev. 1538 (2000).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Judges & Jurisprudence
,
Biography & Tribute
,
Legal Scholarship
Type: Article
David L. Shapiro, Foreword: A Cave Drawing for the Ages, 112 Harv. L. Rev. 1834 (1999).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
,
Legal Scholarship
Type: Article
David L. Shapiro, Supplemental Jurisdiction: A Confession, an Avoidance, and a Proposal, 74 Ind. L.J. 211 (1998).
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Jurisdiction
,
Supreme Court of the United States
,
Federalism
,
Congress & Legislation
Type: Article
David L. Shapiro, Class Actions: The Class as Party and Client, 73 Notre Dame L. Rev. 913 (1998).
Categories:
Civil Practice & Procedure
,
Environmental Law
,
Government & Politics
Sub-Categories:
Class Action Litigation
,
Toxic Torts
,
Federalism
,
Separation of Powers
Type: Article
Abstract
This article, which focuses on plaintiff class actions involving mass torts, posits two models for analyzing and evaluating class actions: (1) an "aggregation" model that recognizes the value of joining forces in a plaintiff class but also attempts to retain as much individual autonomy and control as possible in the prosecution of the action, and (2)an "entity" model, which regards the class itself as the litigant and the client. While recognizing that neither of these models is fully descriptive of actual class actions as they have evolved, the article argues for adoption of the entity model on a number of substantive and procedural grounds. The article then considers a range of practical consequences that would flow from adoption of the entity model. These consequences include the grounds for certifying all or part of a dispute as appropriate for class treatment; the scope of the right to notice and to opt out of the class; questions of the relations among the class, its members, and the attorneys representing the class; the proper role of the judge; and the applicable rules of substantive law. On an institutional level, the article considers the implications of the entity model with respect to the allocation of authority between the federal government and the states, to the choice between adjudication and rule-making as techniques of law declaration, and to the choice between between courts and legislatures as appropriate rule-makers.
David L. Shapiro, Federalism: A Dialogue (Nw. Univ. Press 1995).
Categories:
Constitutional Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Constitutional History
,
Federalism
,
Legal History
Type: Book
Abstract
David Shapiro explores the virtues and defects of federalism as it has developed in this country from a variety of perspectives that include historical, constitutional, economic, social, and political considerations. Using the dialectical form adopted by advocates trying a case before a court, Shapiro not only examines the strongest arguments on the two principal sides of the issue but also probes the potential value of the dialectical process itself.
David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921 (1992).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Statutory Interpretation
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Federalism
,
Legal & Political Theory
Type: Article
Abstract
The canons of statutory interpretation are often criticized as result-oriented and obstructive in the search for legislative purpose. The debate over the value of interpretive guides recently has been reinvigorated by Supreme Court reliance on them. In this Article, Professor Shapiro argues that, contrary to the criticisms of some commentators, the canons do serve an important function in our society. By encouraging a reading of statutes against a broad background of existing norms and customs, the canons foster statutory interpretations that do not alter relationships any more than is necessary to achieve the statutory objectives. Furthermore, by favoring continuity over change, the canons reflect the conservative role courts should play in implementing change in a stable society. Finally, Professor Shapiro recognizes the danger that inordinate reliance on the canons may be used to frustrate legislative purpose, but argues that this danger can be overcome by careful statutory drafting and conscientious judicial interpretation.
David L. Shapiro, Reflections on the Allocation of Jurisdiction Between State and Federal Courts: A Response to "Reassessing the Allocation of Judicial Business Between State and Federal Courts," 78 Va. L. Rev. 1839 (1992).
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Jurisdiction
,
Federalism
,
Supreme Court of the United States
,
State & Local Government
Type: Article
Howard Raiffa, Erwin N. Griswold, Clark Byse, Sheldon Oliensis, David L. Shapiro, Norman Dorsen, Gary Bellow, Ruth Bader Ginsburg, Frank Michelman and David B. Wilkins, In Memoriam: Albert M. Sacks, 105 Harv. L. Rev. 1 (1991).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
,
Legal Education
,
Legal Scholarship
Type: Article
David L. Shapiro, Federal Rule 16: A Look at the Theory and Practice of Rulemaking, 137 U. Pa. L. Rev. 1969 (1989).
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Practice & Procedure
,
Litigation & Settlement
,
Federalism
,
Courts
,
Judges & Jurisprudence
Type: Article
David L. Shapiro, Courts, Legislatures, and Paternalism, 74 Va. L. Rev. 519 (1988).
Categories:
Constitutional Law
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
First Amendment
,
Legal Theory & Philosophy
,
Courts
,
Congress & Legislation
Type: Article
David Shapiro, After Reading Too Many Tenure Files, 37 J. Legal Educ. 203 (1987).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Arts & Entertainment Law
,
Legal Education
Type: Article
David L. Shapiro, In Defense of Judicial Candor, 100 Harv. L. Rev. 731 (1987).
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Legal Profession
Sub-Categories:
Practice & Procedure
,
Supreme Court of the United States
,
Courts
,
Judges & Jurisprudence
,
Legal Ethics
,
Professional Responsibility
Type: Article
David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543 (1985).
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Jurisdiction
,
Practice & Procedure
,
Remedies
,
Courts
,
Federalism
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Article
David L. Shapiro, Comment, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv. L. Rev. 61 (1984).
Categories:
Constitutional Law
,
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Eleventh Amendment
,
Jurisdiction
,
Sovereign Immunity
,
State & Local Government
,
Courts
,
Supreme Court of the United States
Type: Article
David L. Shapiro, Should A Guilty Plea Have a Preclusive Effect, 70 Iowa L. Rev. 27 (1984).
Categories:
Criminal Law & Procedure
,
Civil Practice & Procedure
Sub-Categories:
Criminal Defense
,
Sentencing & Punishment
,
Remedies
,
Practice & Procedure
Type: Article
David L. Shapiro, The Death of the Up-Down Distinction, 36 Stan. L. Rev. 465 (1984).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Private Law
,
Critical Legal Studies
,
Public Law
Type: Article
David L. Shapiro, The Enigma of the Lawyers Duty to Serve, 55 N.Y.U. L. Rev. 735 (1980).
Categories:
Legal Profession
Sub-Categories:
Legal Services
,
Legal Ethics
,
Professional Responsibility
Type: Article
David L. Shapiro, Some Problems of Discovery in an Adversary System, 63 Minn. L. Rev. 1055 (1979).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Litigation & Settlement
,
Practice & Procedure
,
Legal Services
,
Professional Responsibility
Type: Article
David L. Shapiro, State Courts and Federal Declaratory Judgments, 74 Nw. U. L. Rev. 759 (1979).
Categories:
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Courts
,
Federalism
,
State & Local Government
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Article
David L. Shapiro, Federal Diversity Jurisdiction: A Survey and a Proposal, 91 Harv. L. Rev. 317 (1977).
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Jurisdiction
,
Choice of Law
,
Litigation & Settlement
,
Courts
,
Federalism
,
Judges & Jurisprudence
,
State & Local Government
Type: Article
Abstract
Most participants in the debate over the proper place of federal diversity jurisdiction have assumed that the availability of such jurisdiction should be uniform throughout the nation. In this Article, Professor Shapiro suggests that the benefits and burdens of diversity jurisdiction may vary in different parts of the country, and reports on his survey of federal judges revealing regional variations in judicial attitudes toward diversity jurisdiction. Relying on these findings, he proposes that the decision to retain, curtail, or abolish diversity jurisdiction should be made by each judicial district individually.
David L. Shapiro, Why Do Voters Vote?, 86 Yale L.J. 1532 (1977)(reviewing Julius G. Getman, Stephen B. Goldberg & Jeanne B. Herman, Union Representation Elections: Law and Reality (1976)).
Categories:
Government & Politics
,
Labor & Employment
Sub-Categories:
Elections & Voting
,
Labor Law
Type: Article
David L. Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 Harv. L. Rev. 293 (1976).
Categories:
Government & Politics
,
Legal Profession
,
Civil Practice & Procedure
,
Constitutional Law
,
Criminal Law & Procedure
Sub-Categories:
Fourteenth Amendment
,
Criminal Prosecution
,
Jurisdiction
,
Litigation & Settlement
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Professional Responsibility
Type: Article
Abstract
Since Justice Rehnquist joined the Supreme Court four and one-half years ago, he has indicated, through his votes and his opinions, certain strong ideological commitments. In this article, Professor Shapiro identifies the core of this ideology as thus far revealed in Justice Rehnquist's judicial product. Professor Shapiro then critically examines the impact of these commitments on Justice Rehnquist's mode of constitutional interpretation, doctrinal choices, judicial craftsmanship and treatment of precedent.

Langdell Library 336

617-495-4618

Assistant: Maura Kelley / 617-495-4642