David S. Schwartz

Frederick W. & Vi Miller Professor of Law and Vilas Distinguished Achievement Professor

Contact

dsschwartz@law.wisc.edu
dsschwartz@wisc.edu
608/262-8150
975 Bascom Mall, 9108 Law Building, Madison, WI, USA, 53706-1399

Curriculum Vitae

Education

B.A., M.A., Yale University
J.D., Yale Law School

Biography

Professor David S. Schwartz teaches and writes in the areas of Constitutional Law, Evidence and Civil Procedure. His scholarship includes articles published in the Georgetown, Notre Dame, and University of Pennsylvania law reviews, and he has co-authored two casebooks: Constitutional Law: a Context and Practice Casebook (with Lori A. Ringhand) (Carolina Academic Press, 3d ed. 2021), and An Analytical Approach to Evidence: Text, Problems and Cases (with Allen, Pardo & Stein) (Wolters Kluwer, 7th ed. 2021). His book, The Spirit of The Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland was published by Oxford University Press in September 2019. His current book project, The Myth of Enumeration: Federal Power and the Failure of Originalism (with Andrew Coan), is forthcoming with Oxford University Press. Professor Schwartz is the founding editor and Editor-in-Chief of the Journal of American Constitutional History.

In 2023, Professor Schwartz was awarded a Vilas Distinguished Achievement Professorship by the University. He is a two-time recipient of the Law School's Classroom Teacher of the Year Award, in 2004 and 2013.

Professor Schwartz's public service has included drafting and filing amicus curiae briefs on employee and consumer rights issues in the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit, and the Wisconsin and Illinois Supreme Courts. He is currently serving as a consultant to the Wisconsin Judicial Counsel on its project to revise the Wisconsin Evidence Code. His scholarship on the Federal Arbitration Act and employment law has been cited in numerous judicial opinions, including cases in the U.S. Courts of Appeals and the California Supreme Court. Professor Schwartz also testified before Congress on the Federal Arbitration Act and helped draft the proposed Arbitration Fairness Act of 2007.

Professor Schwartz joined the UW law faculty in fall 1999, after 12 years of law practice specializing in employment discrimination and civil rights litigation. For the three years just prior to joining the Law School, Prof. Schwartz was Senior Staff Attorney at the American Civil Liberties Union of Southern California, in Los Angeles. Previously, Prof. Schwartz was in private practice in San Francisco, representing plaintiffs in employment cases. After graduating law school, Prof. Schwartz clerked for the Honorable Betty B. Fletcher of the U.S. Court of Appeals for the Ninth Circuit.

Scholarship & Publications

SSRN

Law Repository

Research Interests

Constitutional Law
Civil Procedure
Evidence

Activities

David Schwartz's essay "May 30, 1787" was published in the Texas Law Review Online on Oct. 1, 2024. The essay discusses the Framer's momentous decision to replace the "federal" constitution under the Articles of Confederation with a new "national" constitution. Read the essay.
David Schwartz’s book proposal, “The Myth of Enumeration: Federal Power and the Failure of Originalism,” co-authored with Andrew Coan of University of Arizona, has been accepted for publication by Oxford University Press.
David Schwartz's "May 30, 1787" is forthcoming in the Fall 2024 edition of the Texas Law Review Online. The essay looks at the political and interpretive implications of the transformation of the meaning of the word "federal" in constitutional politics and history. Read the abstract.
David Schwartz's "Is the Constitution of 1787 a White Supremacist Document? Against Essentialism in Constitutional Interpretation" is forthcoming in the Fall 2024 edition of the William and Mary Bill of Rights Journal. Read the abstract.
David Schwartz's article, "303 Creative and the High Price of Legal Performance Art," has been accepted for publication by Constitutional Commentary, the faculty-edited constitutional law journal. Read the abstract.
David Schwartz published "The International Law Origins of Compact Theory: A Critique of Bellia & Clark on Federalism" in the Journal of American Constitutional History in November 2023. Read the paper.
David Schwartz published "Interpreting Ratification" in the Journal of American Constitutional History on Aug. 15, 2023. Co-authored by Andrew Coan, University of Arizona James E. Rogers College of Law, the article argues that a proper interpretation of the ratification debates undermines any principled originalist case for limiting federal power and calls into question the resolving power of originalism as a practical method for deciding controversial cases.
David Schwartz's article "The Original Meaning of Enumerated Powers" has been accepted for publication in volume 109 of the Iowa Law Review. The article is co-authored with Andrew Coan of the University of Arizona College of Law (formerly of UW Law School).
David Schwartz co-presented "The Original Meaning of Enumerated Powers" with Andrew Coan, University of Arizona (formerly University of Wisconsin Law), during the 14th Annual Originalism Works-in-Progress Conferece, University of San Diego Law School, on Feb. 10, 2023. The paper, also co-authored by Coan, was "Download of the Week" on Legal Theory Blog in January.
David Schwartz published "Mr. Madison's War on the General Welfare Clause" in UC Davis Law Review Volume 56, published in December 2022. The article argues that the limited understanding of the General Welfare Clause as a non-coercive spending power, rather than a legislative power, stems from James Madison's 50-year campaign to misrepresent its meaning and drafting history. Read the article.
David Schwartz submitted "Framing the Framer: A Commentary on Treanor's Gouverneur Morris as 'Dishonest Scrivener'" for publication in the 120 Michigan Law Review, Online, 2022. Read the paper.
David S. Schwartz has submitted "The Committee of Style and the Federalist Constitution" for publication in 70 Buffalo Law Review in 2022. Read the paper.
David Schwartz's paper, "Mr. Madison's War on the General Welfare Clause," was accepted by the UC Davis Law Review for publication in December 2022.
David Schwartz presented "What Originalists Have to Own About Dred Scott" during the University of Maryland Con Law Schmooze on March 19, 2022.
David Schwartz presented "The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland" during Professor Randy Barnett's seminar, "Recent Books on the Constitution," at Georgetown Law on Nov. 17, 2021.