David S. Schwartz
Foley & Lardner Bascom Professor of Law
B.A., M.A., Yale University
J.D., Yale Law School
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, 2nd ed. 2017), and An Analytical Approach to Evidence: Text, Problems and Cases (with Allen, Swift, Pardo & Stein) (Wolters Kluwer, 6th ed. 2016). 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.
Professor Schwartz is a two-time recipient of the Classroom Teacher of the Year Award, in 2004 and 2013. He has also taught Remedies, Civil Rights Litigation and Employment Law.
His 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, and a constitutional opinion letter on domestic partnerships for Wisconsin Governor James Doyle. His scholarship on the Federal Arbitration Act and employment law has been cited in 17 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
- Constitutional Law
- Civil Procedure
David Schwartz presented "McCulloch Overruled? The Odyssey of a Landmark Case" to the Supreme Court Historical Society on July 14, 2021. The presentation was on his book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford U. Press 2019). Watch the presentation.
David Schwartz’s article “The Other Madison Problem” was published in the Fordham Law Review. Co-authored with John Mikhail of Georgetown Law, the article was part of a symposium called "The Federalist Constitution," organized by Prof. Schwartz along with Mikhail, Jonathan Gienapp and Richard Primus.
David Schwartz's article "Recovering the Lost General Welfare Clause" was accepted for publication in the William & Mary Law Review.The article argues that the powers of Congress can be interpreted to extend to all matters of national concern, including those that may fall outside the conventional "limited enumerated powers," such as a national mask mandate or vaccination mandate.
David Schwartz's "The Other Madison Problem" (co-authored with John Mikhail) questions the idealized role of James Madison as the preeminent framer and founding-era interpreter of the Constitution. The paper was presented as part of the Fall 2020 Fordham Law Review Symposium, "The Federalist Constitution," organized by Schwartz, Mikhail, Richard Primus and Jonathan Gienapp.
David Schwartz's post, "Presidential Elections in the House?," appears on the Constitutional law blog, Balkinization. Schwartz's article offers preview and commentary on the "Faithless Electors" case to be argued in the Supreme Court on May 13, 2020.
In December 2019, David Schwartz presented his paper, "McCulloch v. Maryland and the Incoherence of Enumerationism," at the Sixth Annual Salmon P. Chase Lecture & Colloquium at Georgetown University Law Center.
The 2019 Wisconsin Law Review Symposium, which was chaired by former UW Law Professor Andrew Coan, featured a number of UW Law faculty, including Anuj Desai, Howie Erlanger, Neil Komesar, John Ohnesorge, Asifa Quraishi-Landes, David Schwartz, Miriam Seifter and Rob Yablon. The symposium, titled "Rationing the Constitution: How Judicial Capacity Shapes Supreme Decision-Making,” was held Oct. 24 and 25.
David Schwartz's book, "The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland," was published by Oxford University Press in October 2019.
David Schwartz's article, "Madison's Waiver: Can Constitutional Liquidation Be Liquidated?", appeared in Stanford Law Review Online in September.
David Schwartz presented "Limited Enumerated Powers as a Non-Originalist Idea" for a September faculty workshop at Loyola Law School in Los Angeles.
David Schwartz's article, "Defying McCulloch? Jackson's Bank Veto Reconsidered," appears in the Arkansas Law Review as part of a symposium of papers originally presented at the 2018 Wisconsin Discussion Group on Constitutionalism at UW Law School.
David Schwartz's essay, "Madison's Waiver: Can Constitutional Liquidation be Liquidated?", has been accepted for publication in the Stanford Law Review Online.
David Schwartz's book review/essay "Coin, Currency, and Constitution: Reconsidering the National Bank Precedent" has been accepted for publication by the Michigan Law Review for its April 2020 book review issue.
David Schwartz's article, "An Error and an Evil: The Strange History of Implied Commerce Powers," was published in the American University Law Review in February.
News & Media
Friday, Jan 8, 2021David Schwartz discusses invoking the 25th Amendment
Beloit Daily News
Tuesday, Sep 8, 2020David Schwartz discusses Wisconsin governor's authority to declare a state emergency
Wednesday, Aug 26, 2020David Schwartz discusses lawsuit challenging governor's emergency powers
Monday, May 18, 2020David Schwartz: Can local Safer at Home orders withstand legal challenges?
Friday, May 15, 2020David Schwartz discusses local governments' authority to extend Safer at Home order
Monday, May 11, 2020Does Safer at Home order violate state law? David Schwartz comments
Thursday, May 7, 2020GOP lawmakers file suit to block governor's stay home order; David Schwartz and Miriam Seifter weigh in
Milwaukee Journal Sentinel
Monday, Jan 27, 2020David Schwartz looks at the ongoing importance of McCulloch v. Maryland
University of the Air
Wednesday, Dec 11, 2019David Schwartz discusses his book, 'The Spirit of the Constitution'
Wisconsin Law in Action
Thursday, Nov 21, 2019David Schwartz's book looks at 200-year history of McCulloch v. Maryland
Tuesday, Dec 18, 2018David Schwartz: John Roberts erred in Obamacare decision by not following John Marshall's 200-year-old precedent
The Atlantic Monthly
Thursday, Jan 18, 2018State laws legalizing recreational marijuana use conflict with federal law; David Schwartz comments
Tuesday, Dec 12, 2017Constitutional law scholar David Schwartz selected for UW research chair
Thursday, Oct 22, 2009David Schwartz in Wisconsin Law Journal on proposed change to Rules of Evidence