David S. Schwartz

Frederick W. & Vi Miller Professor of Law

Schwartz, David S.

Contact

dsschwartz@wisc.edu
608-262-8150
Room 9108, Law School

File Icon 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.

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. 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 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. 

  • David S. Schwartz has submitted "Reconsidering the Constitution's Preamble: The Words that Made Us U.S." for publication in 37 Constitutional Commentary in 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 S. Schwartz presented a paper called “Reconsidering the Constitution’s Preamble: The Words that Made Us U.S.” during the University of Illinois College of Law's Constitution Day 2021 event on Sept. 17. 

  • 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.

News & Media

Teaching Areas

  • Civil Procedure
  • Civil Rights
  • Constitutional Law
  • Evidence
  • Trial Advocacy

Recently Taught Courses

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