Legal History

“Done in Convention”: The Attestation Clause and the Declaration of Independence

Jesse Cross

At the close of the Constitution approved by the Constitutional Convention in 1787, there is a short clause indicating the date on which—as well as the location where—the Constitution was concluded and signed. Known as the Attestation Clause, it recorded the date of the Constitution’s completion—and it did so in… Read More »

The Forgotten History of Foreign Official Immunity

Chimène I. Keitner

In Samantar v. Yousuf, the Supreme Court held that the common law, not the Foreign Sovereign Immunities Act (FSIA), governs the immunity of current and former foreign officials from legal proceedings in U.S. courts. Lower courts must now identify and apply these “common law” rules. In so doing, they must determine whether,… Read More »

Judicial Ghostwriting: Authorship on the Supreme Court

Albert Yoon & Jeffrey Rosenthal

Justice Louis Brandeis once wrote, “The reason the public thinks so much of the Justices of the Supreme Court is that they are almost the only people in Washington who do their own work.”  It is remarkable to think that each year, each justice is responsible for evaluating over seven… Read More »

Judicial Politics and the Rule of Law

Charles Gardner Geyh - Indiana University Maurer School of Law

According to legends dating back to the Renaissance, the ermine would rather die than soil its pristine white coat. The ermine so came to symbolize purity, and English judges adopted this symbol by adorning their robes with ermine fur. For their part, American judges took a more ermine-friendly approach, dispensing… Read More »

A New Approach to Nineteenth-Century Religious Exemption Cases

Wesley J. Campbell

In Employment Division v. Smith (1990), the Supreme Court held that the First Amendment does not afford individuals a right to receive exemptions from neutral and generally applicable laws that incidentally burden their exercise of religion. Although Justice Scalia wrote the majority opinion, the Court’s decision came without any discussion… Read More »

Bring on the Heavy Constitutional Artillery: A Brief Response to Professor Mitchell’s Reconsidering Murdock

Richard A. Epstein - New York University Law School

In his recent article in The University of Chicago Law Review, Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance, Professor Jonathan Mitchell has challenged one of the bedrock principles of federal jurisdiction. His thesis is that, in limited cases, the United States Supreme Court should take it upon itself to review certain… Read More »

The Evolving Forum Shopping System

Christopher A. Whytock - University of California, Irvine School of Law

“As a moth is drawn to the light, so is a litigant drawn to the United States.”  Notwithstanding Lord Denning’s widely cited aphorism, this editorial and the article on which it is based suggest that the draw may no longer be as strong as it once was.  Using a combination… Read More »

Adapting Integer Programming Techniques to Circuit Restructuring

David Carlson

For as long as the United States Courts of Appeals have been part of the federal judicial system, commentators, judges, and policymakers have disagreed over their geographic boundaries.  These disagreements are closely intertwined with discussions about the courts’ core characteristics, such as how many states they encompass, the workload of… Read More »

Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights

Risa Goluboff - University of Virginia School of Law

Historians spend a lot of time in archives, and much of what they find, in its original form, would likely engage, no one but themselves. Every so often, however, they find documents—letters, memos, draft opinions—that might be of interest to a broader audience. Such discoveries are the impetus for this… Read More »

Partial Unconstitutionality

Kevin C. Walsh - University of Richmond School of Law

What do some Reconstruction-Era civil rights laws, the first federal income tax, and various pieces of New Deal economic legislation have in common? These are all laws that the Supreme Court has held totally invalid after concluding that they were partially unconstitutional.
The doctrine through which the Supreme Court accomplished… Read More »