Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?

As judicial review is practiced today, courts skip over this bedrock question to get to the more familiar question: how was the Constitution violated? But it makes no sense to ask how, until there is an answer to who. Indeed, in countless muddled lines of doctrine, puzzlement about the predicates of constitutional violation follows directly from more fundamental confusion about the subjects...

Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This Article provides that theory. It develops a new paradigm—plain pleading—as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference.

This approach is able to reconcile Twombly and Iqbal with pre-Twombly authority. Indeed, a careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading. First, Twombly and Iqbal did not overrule the most significant pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a misunderstood fifty-year-old phrase whose real meaning was never called into question. Furthermore, Iqbal's two-step analysis confirms that the problematic plausibility standard employed in Twombly and Iqbal is neither the primary inquiry at the pleadings phase nor a necessary one. The threshold issue is whether a crucial allegation in a complaint may be disregarded as "conclusory"; only then does the "plausibility" of an entitlement to relief become dispositive. While there remains some uncertainty about what conclusory means, authoritative pre-Twombly sources—the Federal Rules, their Forms, and Supreme Court decisions that remain good law—foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phase.

The title of this Essay is somewhat misleading. First of all, by Supreme Court archives, I do not mean the official documents of the Supreme Court as an institution. Rather, my dispatch heralds from the archives of individual Justices who have deposited their papers in a variety of institutions, most notably the Library of Congress. Second of all, I am not actually writing from those archives. With a digital camera and a lot of memory cards, I have essentially reproduced the archives on my computer. As this nifty technology allows me to read my thousands of documents pretty much anywhere, I must confess: I am not, at this very moment, in the archives.

Metaphorically speaking, however, my title is accurate. This Essay is a dispatch from the archives in the sense that I am here to share a few finds I made in the Justices' papers that I imagine will be of interest to many a scholar of law and history. These finds consist of (1) portions of an early draft of Justice William O. Douglas's opinion in the 1972 vagrancy case of Papachristou v. City of Jacksonville; (2) memoranda between Justice Douglas and Justices William J. Brennan, Jr., and Potter Stewart about that opinion; and (3) a memo from Brennan to Douglas about Roe v. Wade. These documents—which I have reproduced below for your perusal—shed new light on several apparently disparate issues in constitutional law: the Supreme Court's use of void-for-vagueness doctrine, the social and constitutional history of vagrancy law, the possibility and contours of constitutional regulation of substantive criminal law, the relationship between Papachristou and Roe, and the development and conceptualization of fundamental rights. I am guessing that you are surprised to learn that previously untapped Supreme Court documents reveal links between this odd assortment of subjects. You are probably even more surprised to learn that the glue that holds it all together is vagrancy law. Vagrancy law, you ask? Vagrancy law, I say. But let me explain...

In a recent Article, Stanford Law School Professor Allen Weiner argues that the existing United Nations (U.N.) framework for authorizing the use of force adequately empowers the United States to deal with challenges presented by international terrorism and the proliferation of weapons of mass destruction (WMD). According to Professor Weiner, "the interests of the Permanent Members [of the Security Council (P5)] do not clash with respect to the goals of countering terrorism and WMD proliferation . . . ." Consequently, when the United States needs to use force to respond to either of these threats, it can rely on the U.N. Security Council to provide collective authorization. Professor Weiner thus concludes that there is no need to reform how the use of force is authorized under the U.N. Charter (Charter).

Professor Weiner's argument, if correct, would have important consequences. A world in which the P5 see eye to eye on terrorism and WMD nonproliferation would provide powerful opportunities for the United States to effectively deal with threats emanating from countries like Iran and North Korea, and would also allow for a more integrated approach to non-state actors like Al Qaeda and Hezbollah. Furthermore, the idea that the U.N. is capable of dealing with modern threats without reforming its process for authorizing the use of force has inherent appeal because there is still widespread disagreement on exactly what shape such reform would take and whether executing an agreed upon plan would be politically viable. Any meaningful reform is therefore still a long way from implementation...

This Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects a difference in normative judgments about the existing facts, rather than a difference in belief about what facts exist, which makes the lay intuitions more defensible. The second Part considers how tort has dealt with this divergence between lay and expert perspectives. It also evaluates how tort's approach has differed from that of public law approaches to accident law, such as legislative compensation and risk regulation by administrative agencies. Ultimately, tort's ability to recognize the value of lay intuitions supports retaining the tort perspective as part of our societal arsenal of responses to risk and harm. This ability can also support a pro-tort perspective in two practical debates in the arena of tort law: that over preemption of tort law by administrative agency judgments, and that over access to tort recovery as part of a no-fault system.

"No taxation without representation" has lasting appeal as a political catchphrase. But the impact of the motto is limited if it is not accompanied by striking actions or persuasive arguments. In this Note, I examine the problems that American woman suffragists encountered when they tried to put "no taxation without representation" to use, both in the realm of action and the realm of debate. In short, suffragists had difficulties committing to a widespread tax resistance strategy; they were forced to admit that the taxation argument led logically only to taxpayer suffrage, not to universal suffrage; and they struggled with resulting uncertainty over the wisdom of using "no taxation without representation" rhetoric at all. I also show how these weaknesses were mitigated, to some extent, by the introduction of the federal income tax late in the game. This Note, therefore, explains why the taxation argument was often passed over by suffragists and is rarely studied in the secondary literature, while at the same time highlighting the fascinating historical role it played, nonetheless.