Stephen Sachs

Antonin Scalia Professor of Law

Biography

Stephen E. Sachs is the Antonin Scalia Professor of Law at Harvard Law School, where he teaches civil procedure, conflict of laws, and seminars on constitutional law. His research focuses on the law and theory of constitutional interpretation, the jurisdiction of state and federal courts, the history of procedure and private law, and the role of the general common law in the U.S. legal system.

Sachs has authored numerous articles, essays, and book chapters. He is a member of the Judicial Conference’s Advisory Committee on Appellate Rules, an elected member of the American Law Institute, an adviser to the ALI’s project on the Restatement of the Law (Third), Conflict of Laws, and a founding member of the Academic Freedom Alliance.

In 2020, Sachs received the Federalist Society’s Joseph Story Award, which recognizes a young academic who has demonstrated excellence in legal scholarship, a commitment to teaching, a concern for students, and who has made a significant public impact in a manner that advances the rule of law in a free society.

Sachs previously taught at Duke University School of Law and as a visiting professor at the University of Chicago Law School. Before entering academia, he practiced in the Washington, D.C., litigation group of Mayer Brown LLP, and he clerked for Chief Justice John G. Roberts Jr. as well as for Judge Stephen F. Williams of the U.S. Court of Appeals for the D.C. Circuit.

Sachs received his J.D. from Yale Law School, where he was executive editor of the Yale Law Journal and served both as executive editor and articles editor of the Yale Law & Policy Review. A Rhodes Scholar, he graduated from Oxford University with a first-class BA (Hons) degree in philosophy, politics, and economics. He received his A.B. degree summa cum laude in history from Harvard University, earning the Sophia Freund Prize.

Sachs is a licensed attorney in Massachusetts and the District of Columbia, and he is authorized to practice before the D.C. Circuit, the Seventh Circuit, and the Supreme Court of the United States.

Areas of Interest

Stephen E. Sachs, Closing Refections on the Supreme Court and Constitutional Governance: Testimony Before the Presidential Commission on the Supreme Court of the United States (July 20, 2021).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Other
Abstract
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.
William Baude & Stephen E. Sachs, The Misunderstood Eleventh Amendment, 169 U. PA. L. Rev. 609 (2021).
Categories:
Constitutional Law
Sub-Categories:
Eleventh Amendment
Type: Article
Abstract
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.
Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 VA. L. Rev. 1703 (2020).
Categories:
Constitutional Law
Sub-Categories:
Fourteenth Amendment
,
Fifth Amendment
Type: Article
Abstract
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.
Stephen E. Sachs, Finding Law, 107 Calif. L. Rev. 527 (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Legal Theory & Philosophy
,
Judges & Jurisprudence
Type: Article
Abstract
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.
William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455 (2019).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Legal Theory & Philosophy
,
Judges & Jurisprudence
Type: Article
Abstract
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.
William Baude & Stephen E. Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809 (2019).
Categories:
Legal Profession
,
Constitutional Law
Sub-Categories:
Legal History
Type: Article
Abstract
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.
Stephen E. Sachs, Supreme Court as Superweapon: A Response to Epps & Sitaraman, 129 Yale L.J. F. 93 (2019).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Abstract
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.
Stephen E. Sachs, Precedent and the Semblance of Law, 33 Const. Comment. 417 (2018).
Categories:
Constitutional Law
Type: Article
Abstract
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.
Stephen E. Sachs, The Law and Morals of Interpretation, 13 Duke J. Const. L. & Pub. Pol'y 103 (2018).
Categories:
Constitutional Law
Type: Article
Abstract
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.
Stephen E. Sachs, Originalism Without Text, 127 Yale L. J. 156 (2017).
Categories:
Constitutional Law
Type: Article
Abstract
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.
Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249 (2017).
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Jurisdiction
,
Conflict of Laws
,
Federalism
,
Supreme Court of the United States
Type: Article
Abstract
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.
William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079 (2017).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Statutory Interpretation
Type: Article
Abstract
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.
William Baude & Stephen E. Sachs, Originalism's Bite, 20 Green Bag 103 (2016).
Categories:
Constitutional Law
Type: Article
Stephen E. Sachs, Five Questions after Atlantic Marine, 66 Hastings L.J. 761 (2015).
Categories:
Government & Politics
Sub-Categories:
State & Local Government
,
Supreme Court of the United States
Type: Article
Abstract
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.
Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J. L. & Pub. Pol'y 817 (2015).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
Type: Article
Abstract
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.
Stephen E. Sachs, Saving Originalism's Soul, Law & Liberty (Dec. 17, 2014).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
Type: Other
Stephen E. Sachs, How Congress Should Fix Personal Jurisdiction, 108 Nw. U. L. Rev. 1301 (2014).
Categories:
Civil Practice & Procedure
Sub-Categories:
Evidence
,
Jurisdiction
Type: Article
Abstract
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.
Stephen E. Sachs, The "Constitution in Exile" as a Problem for Legal Theory, 89 Notre Dame L. Rev. 2253 (2014).
Categories:
Constitutional Law
Type: Article
Abstract
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.
Stephen E. Sachs, The Forum Selection Defense, 10 Duke J. Const. L. & Pub. Pol'y 1 (2014).
Categories:
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
Type: Article
Abstract
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.
Stephen E. Sachs, The "Unwritten Constitution" and Unwritten Law, 2013 U. Ill. L. Rev. 1797 (2013).
Categories:
Constitutional Law
Type: Article
Abstract
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.
Stephen E. Sachs, Conflict Resolution at a Medieval English Fair, in Eine Grenze in Bewegung: Öffentliche und private Justiz im Handels- und Seerecht 19 (Albrecht Cordes & Serge Dauchy eds., 2012).
Categories:
Legal Profession
,
Civil Practice & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Dispute Resolution
,
International Trade
,
Legal History
Type: Book
Abstract
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.
Stephen E. Sachs, Constitutional Backdrops, 80 Geo. Wash. L. Rev. 1813 (2012).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Executive Office
,
State & Local Government
Type: Article
Abstract
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.
Stephen E. Sachs, The Uneasy Case for the Affordable Care Act, 75 Law & Contemp. Probs. 17 (2012).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
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.
Stephen E. Sachs, Corruption, Clients, and Political Machines: A Response to Professor Issacharoff, 124 Harv. L. Rev. F. 62 (2011).
Categories:
Government & Politics
Sub-Categories:
Corruption
,
Elections & Voting
Type: Article
Abstract
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.
Stephen E. Sachs, Full Faith and Credit in the Early Congress, 95 Va. L. Rev. 1201 (2009).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
State & Local Government
,
Legal History
Type: Article
Abstract
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 gives Congress power 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.
Stephen E. Sachs, Why John McCain Was a Citizen at Birth, 107 Mich. L. Rev. First Impressions 49 (2008).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Immigration Law
,
Elections & Voting
,
Executive Office
Type: Article
Abstract
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.
Stephen E. Sachs, Why John McCain was a Citizen at Birth, 29 Immigr. & Nat'lity L. Rev. 623 (2008).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
,
Elections & Voting
,
Executive Office
Type: Article
Abstract
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.
Stephen E. Sachs, From St. Ives to Cyberspace: The Modern Distortion of the Medieval 'Law Merchant', 21 Am. U. Int'l L. Rev. 685 (2006).
Categories:
Legal Profession
,
Banking & Finance
,
International, Foreign & Comparative Law
Sub-Categories:
Commercial Law
,
International Law
,
International Trade
,
Legal History
Type: Article
Abstract
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.
Stephen E. Sachs, Saving Toby: Extortion, Blackmail, and the Right to Destroy, 24 Yale L. & Pol'y Rev. 251 (2006).
Categories:
Property Law
Sub-Categories:
Personal Property
,
Property Rights
Type: Article
Abstract
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. (This piece has been awarded Yale's Jewell Prize for the best second-year student contribution to a Law School journal other than the Yale Law Journal.)

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