Bryan H. Wildenthal

 
Bryan H. Wildenthal
Bryan H. Wildenthal
Professor of Law
J.D., Stanford University, with distinction;
A.B., Stanford University, with distinction and departmental honors
Phone: (619) 961-4342
Professor Wildenthal served as a senior editor of the Stanford Law Review and clerked for Judge Frank M. Johnson Jr., U.S. Court of Appeals, 11th Circuit, and Chief Justice Michael F. Cavanagh of the Michigan Supreme Court. He practiced law with Wilmer, Cutler & Pickering (now WilmerHale) in Washington, D.C., and taught at IIT Chicago-Kent College of Law, before joining the Thomas Jefferson faculty in 1996.
 
He has published a textbook on Native American law and numerous articles in leading law reviews, most notably a series of major articles (including one cited by the U.S. Supreme Court in 2010) offering a sweeping reinterpretation of the Fourteenth Amendment and its application of the Bill of Rights to the states. His scholarly interests generally focus on constitutional law and history (including comparative constitutional law), federal courts and civil procedure, American Indian (Native American) law, and sexual identity law.
 
Visit Professor Wildenthal's SSRN author page.
 
Courses include:
American Indian Law, Civil Procedure, Constitutional Law, Federal Courts & Jurisdiction.

Scholarships

BOOKS

Native American Sovereignty On Trial: A Handbook With Cases, Laws, and Documents (Santa Barbara, CA: ABC-CLIO, 2003)


ARTICLES, BOOK CHAPTERS, AND ARTICLE-LENGTH WORKS

A Personal Perspective on Marriage, Time, Space, Uncertainty, and the Law, 2011 Mich. St. L. Rev. 229 (2011) available at http://ssrn.com/abstract=1866530

Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-73, 18 J. Contemp. Legal Issues 153 (2009), available at http://ssrn.com/abstract=1354404

How the Ninth Circuit Overruled a Century of Supreme Court Indian Jurisprudence--And Has So Far Gotten Away With It, 2008 Mich. St. L. Rev. 547 (2008), available at http://ssrn.com/abstract=1099683 cited in Saginaw Chippewa Indian Tribe of Michigan v. National Labor Relations Board, 838 F. Supp. 2d 598, 607 n.1 (E.D. Mich. 2011)

Federal Labor Law, Indian Sovereignty, and the Canons of Construction, 86 Or. L. Rev. 413 (2007), available at http://ssrn.com/abstract=970590

A Reply to Professor Thomas, 68 Ohio St. L.J. 1659 (2007), available at http://ssrn.com/abstract=1019308

Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67, 68 Ohio St. L. J. 1509 (2007), available at http://ssrn.com/abstract=963487 cited in McDonald v. Chicago, 130 S. Ct. 3020, 3033 n.10 (2010) (opinion of the Court), and at 3072 n.10, 3073 n.12, and 3079 (concurring opinion)

American Indian Tribes Enter the New Millennium, 25 T. Jefferson L. Rev. 593 (2003) (reviewing Stephen L. Pevar, The Rights of Indians and Tribes 2002), available at http://ssrn.com/abstract=1027801

Fighting the Lone Wolf Mentality: Twenty-First Century Reflections on the Paradoxical State of American Indian Law, 38 Tulsa L. Rev. 113 (2002), available at http://ssrn.com/abstract=480885

How I Learned to Stop Worrying and Love the Slaughter-House Cases: An Essay in Constitutional-Historical Revisionism, 23 T. Jefferson L. Rev. 241 (2001), available at http://ssrn.com/abstract=1028183

Civil War Without End: The Sociology and Synergy of Law and History, 2001 U. Ill. L. Rev. 629 (2001) (reviewing Pamela Brandwein, Reconstructing Reconstruction: The Supreme Court and the Productionof Historical Truth (1999)), available at http://ssrn.com/abstract=1028188

Book Review, 16 J.L. & Relig. 743 (2001) (Brian Edward Brown, Religion, Law and the Land: Native Americans and the Judicial Interpretation of Sacred Land (1999)), available at http://ssrn.com/abstract=1027801

The Road to Twining: Reassessing the Disincorporation of the Bill of Rights, 61 Ohio St. L.J. 1457 (2000), available at http://ssrn.com/abstract=229443

The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 Ohio St. L.J. 1051 (2000), available at http://ssrn.com/abstract=229228

To Say “I Do”: Shahar v. Bowers, Same-Sex Marriage, and Public Employee Free Speech Rights, 15 Ga. St. U.L. Rev. 381 (1998), available at http://ssrn.com/abstract=181790

The Right of Confrontation, Justice Scalia, and the Power and Limits of Textualism, 48 Wash. & Lee L. Rev. 1323 (1991), available at http://ssrn.com/abstract=1028686

Judicial Philosophies in Collison: Justice Blackmun, Garcia, and the Tenth Amendment, 32 Ariz. L. Rev. 749 (1990), available at http://ssrn.com/abstract=1028684

Note, State Parochialism, the Right to Travel, and the Privileges and Immunities Clause of Article IV, 41 Stan. L. Rev. 1557 (1989), available at http://ssrn.com/abstract=1028679

Download a list of Shorter Work for Professor Wildenthal

Presentations

San Diego Public Library, KPBS, and Thomas Jefferson School of Law, “Education, Colonization, and the Law in Native American History” (co-speaker with Michael Connolly Miskwish; moderated by KPBS anchor Tom Fudge; part of 2013 “One Book One San Diego” lecture series on Geraldine Brooks’s Caleb’s Crossing), Thomas Jefferson School of Law, San Diego, CA (November 6, 2013)

American Indian Law: Tribal Sovereign Immunity and Tribal Courts” (MCLE panel speaker), Thomas Jefferson School of Law Alumni Association, Thomas Jefferson School of Law, San Diego, CA (October 4, 2013)

Constitution Day Celebration: Preview of U.S. Supreme Court’s 2013-14 Term (panel speaker), Federal Bar Association and Federalist Society (San Diego Chapters), Thomas Jefferson School of Law, San Diego, CA (September 17, 2013)

Introduction to Indian Law and Bias When Representing Indian People and Tribes (MCLE panel speaker), Native American Lawyers Association of San Diego County, Thomas Jefferson School of Law, San Diego, CA (February 22, 2013)

Center for the Study of Constitutional Originalism, Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference (roundtable participant and moderator for Prof. Gerard Magliocca’s biography of John Bingham, “American Founding Son”), University of San Diego School of Law, Kroc Center for Peace and Justice, San Diego, CA (February 15, 2013)

A Conversation About Marriage Equality, panel participant, as Project Scholar for “Searching For Democracy” Project, San Diego Public Library (City Heights Branch), San Diego, CA (October 27, 2012)

The Reconstruction Amendments: Slavery, Race, Equality, and Voting, lecture as Project Scholar for “Searching For Democracy” Project, San Diego Public Library, San Diego, CA (October 15, 2012)

The First and Second Amendments: Speech, Religion, and Guns, lecture as Project Scholar for “Searching For Democracy” Project, San Diego Public Library, San Diego, CA (September 19, 2012)

Whose Constitution Is It?, El Cajon Public Library & San Diego County Public Law Library, Constitution Day Celebration, El Cajon Public Library, El Cajon, CA (September 17, 2012)

Whose Constitution?: Why Do Americans Care So Much About Our Fundamental Law?, (inaugural lecture as Project Scholar for “Searching For Democracy”), San Diego Public Library, San Diego, CA (June 13, 2012)

Author Meets Reader—Gunfight: The Battle Over the Right to Bear Arms in America by Adam Winkler (reader and panel speaker), Law and Society Association, 2012 International Conference, Honolulu, Hawaii (June 7, 2012)

Center for the Study of Constitutional Originalism, Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference (roundtable participant and moderator for Prof. Jamal Greene’s paper on Fourteenth Amendment originalism), University of San Diego School of Law, Kroc Center for Peace and Justice, San Diego, CA (February 3, 2012)

Administration and Faculty Relations” (panel speaker), National Conference of Law Reviews, 2011 Annual Conference, Thomas Jefferson School of Law, San Diego, CA (April 2, 2011)

Gender Justice and Indian Sovereignty: Native American Women and the Law, Tenth Anniversary Women and the Law Conference (conference organizer), Thomas Jefferson School of Law, San Diego, CA (February 18, 2011)

Center for the Study of Constitutional Originalism, Originalism Works-in-Progress Conference (roundtable participant and moderator for Prof. Bernadette Meyler’s paper on presidential pardons), University of San Diego School of Law, Kroc Center for Peace and Justice, San Diego, CA (February 4, 2011)

“Law Across Jurisdictions” (panel speaker), Modernizing Marriage Through E-Marriage, Michigan State University College of Law, East Lansing, Mich (November 12, 2010)

NAGPRA Plus 20: Protecting Cultural Heritage Under Federal and California Law” (panel organizer and moderator) , California Indian Law Association, Tenth Annual Indian Law Conference (conference co-organizer and editor of conference materials), Pala Casino Spa Resort,Pala Band of Mission Indians, Pala, CA (October 8, 2010)

Guest Lecture by Prof. Christopher Green, “The Original Sense of ‘Of’ in the Privileges or Immunities Clause” (featured commentator on Prof. Green’s paper), University of San Diego School of Law, Center for the Study of Constitutional Originalism, San Diego, CA (September 24, 2010)

“Intersectionality and Indigeneity” (panel organizer and moderator), Fourth Annual Critical Race Studies Symposium (co-sponsored by UCLA School of Law and Thomas Jefferson School of Law’s Women and the Law Project) Intersectionality: Challenging Theory, Reframing Politics, Transforming Movements , UCLA School of Law, Los Angeles, CA (March 12, 2010)

American Constitution Society, San Diego Lawyer Chapter, Panel on Citizens United v. Federal Election Commission, speaker and moderator, Thomas Jefferson School of Law, San Diego, Apr. 2010

Originalism Works-in-Progress Conference, invited commentator and participant, University of San Diego School of Law, Center for the Study of Constitutional Originalism, San Diego, Feb. 2010

CLE Lecture, The Native American Contribution to American Constitutional Law, San Diego County Public Law Library, San Diego, Jan. 2010

How to Read the Constitution, American Constitution Society, San Diego Chapter, San Diego, CA, Apr. 2009

The Constitutional Legacy of Abraham Lincoln, San Diego County Public Law Library, San Diego, CA, Apr. 2009

Participant, Indian Law Stories Workshop (discussing Indian Law Stories, published in 2011 by Foundation Press, edited by Philip Frickey, Carole Goldberg, and Kevin Washburn), UCLA School of Law, Native Nations Law and Policy Center, Los Angeles, CA, Mar. 2009

Scholarship and Commentary on the Fourteenth Amendment in 1866-67: What Can It Tell Us? Symposium: The Fourteenth Amendment and the Bill of Rights: What Have We Learned? Why Does it Matter? University of San Diego School of Law, Center for the Study of Constitutional Originalism, USD Joan Kroc Center for Peace and Justice, Jan. 2009

Association of American Law Schools, Annual Meeting, Section on Indian Nations and Indigenous Peoples, Labor and Employment Laws in Indian Country, speaker and panelist, New York City, Jan. 2008

Challenges for Children’s Rights Symposium, “Children Deprived of Family Environments” (panel moderator), Thomas Jefferson School of Law, Center for Global Legal Studies, San Diego, CA (March 2, 2007)

California Indian Law Association, Annual Conference, California Indian Law Update: 2007 Legislation and Case Law, panel moderator, Pechanga Resort and Casino, Pechanga Indian Reservation, Temecula, CA, Oct. 2007

Faculty Workshop: Incorporation of the Bill of Rights Against the States: The Never-Ending Debate, speaker and panelist, Salmon P. Chase College of Law, Northern Kentucky University, Highland Heights, Ky., Nov. 2005

Law and Humanities Institute, Conference on Law and the Humanities’ Representation of the Holocaust, Genocide, and Other Human Rights Violations, The Legacy of the American Genocide Against the Indians, speaker and panelist, Thomas Jefferson School of Law and Congregation Beth Israel, San Diego, Jan. 2005

Law and Humanities Institute, Law and Opera Salon: The Case of the Amistad, speaker, Rancho Santa Fe, CA, March 2004

California Indian Law Association, Annual Conference, Tribal-State-Local Government Relations, panel moderator, California Western School of Law, San Diego, Feb. 2004

Southeastern Association of Law Schools, Annual Meeting, Reconsidering Slaughter-House, speaker and panelist, Amelia Island, FL, July 2003

American Society for Legal History, Annual Meeting, The Politics of Race and Law: A Critical Look at the History of Federal Indian Law, panelist and commentator, San Diego, Nov. 2002

Symposium: The Great Writ of Habeas Corpus and the Death Penalty, panelist and commentator, Thomas Jefferson School of Law, San Diego, Nov. 2002

Symposium: John Bingham and the Meaning of the Fourteenth Amendment, Nationalizing the Bill of Rights: Some Surprising Lessons From History, speaker and panelist, University of Akron School of Law, Center for Constitutional Law, Akron, Ohio, Oct. 2002

National Lawyers Guild, Human Rights and Global Wrongs Conference, Gender Discrimination Issues, speaker and panelist, Thomas Jefferson School of Law, San Diego, Mar. 2001

People-to-People Ambassador Programs, International Human and Civil Rights Law Delegation to the Republic of South Africa (member of American delegation of judges, attorneys, and law professors who met and conferred on constitutional and human rights issues with South African judges, attorneys, and law professors, including the South African Constitutional Court, South African Human Rights Commission, University of Cape Town Faculty of Law, Cape Town Women’s Legal Centre, University of the Western Cape Community Law Centre, General Council of the Johannesburg Bar, and Johannesburg Legal Resources Centre), Cape Town and Johannesburg, South Africa, Oct. 2000

National Lawyers Guild, Far West Regional Conference, Confronting Hate Crimes, speaker and panel moderator, Thomas Jefferson School of Law, San Diego, Apr. 2000

National Lawyers Guild, Annual Convention, The Movement for Lesbian, Gay, Bisexual, and Transgender People’s Liberation: Where Have All the Grassroots Gone? speaker and panelist on same-sex marriage and free speech, San Francisco, Oct. 1999

State Bar of California, Annual Meeting, Same-Sex Marriage, (continuing legal education presentation), Long Beach, Oct. 1999

The 19th Century Debate on Incorporation of the Bill of Rights in the Fourteenth Amendment, or, Why Everything You Always Thought You Knew About the Slaughter-House Cases Is Wrong, work-in-progress presentation, Thomas Jefferson School of Law, San Diego, Sept. 1999

Sixth Annual International Conference of Gay and Lesbian Criminal Justice Professionals, Creating an Inclusive Work Environment, speaker and workshop leader on discrimination, equal protection, and free speech issues affecting gay and lesbian public employees, San Diego, Sept. 1999

National Lesbian and Gay Law Association, Lavender Law Conference (annual meeting), To Say ‘I Do’: Shahar v. Bowers, Same-Sex Marriage, and Public Employee Free Speech Rights, speaker and panelist, West Hollywood, CA, Oct. 24, 1997 (also presented as a work-in-progress at Thomas Jefferson School of Law, San Diego, Nov. 1997)

International Interdisciplinary Conference on Sex, Law, and Society, on the Tenth Anniversary of Bowers v. Hardwick, Gay Rights, Marriage, and Politics, speaker and panelist, John Marshall Law School, Chicago, Mar. 1996

News

  • WLC 2013
    February 11, 2013
    “It was the best Women and the Law Conference yet,” said TJSL Professor Susan Tiefenbrun of the 13th annual edition of the event, held...
  • Jennifer McCollough
    October 3, 2012
    Third –year student Jennifer McCollough is on a roll when it comes to working with U.S. District Court Judges.  She has just accepted a...
  • Wildenthal Lecture
    August 10, 2012
    TJSL Professor Bryan Wildenthal will discuss several recent "hot button" Supreme Court decisions at the El Cajon Library on Constitution...
  • Supreme Court Affordable Health Care
    June 28, 2012
    The U.S. Supreme Court’s 5-4 ruling on June 28 that largely upholds the Affordable Care Act of 2010 has TJSL professors expressing their views...
  • Photo
    June 27, 2012
    Five TJSL Professors recently appeared at the Law and Society Conference in the first week of June in Honolulu, Hawaii.   Professors Brenda...

Expertise

American Indian Issues

Civil Litigation

  • Civil Procedure
  • Federal Courts and Jurisdiction

Civil Rights

  • Civil Rights
  • Discrimination

Communication Law

  • Media and the Law

Constitutional Law

  • Constitutional Law
  • Equal Protection
  • First Amendment/Freedom of Expression
  • Freedom of Religion

Criminal Law

  • Criminal Procedure
  • Habeas Corpus

Employment Law

  • Employment Discrimination

Legal History

Minorities and the Law

Religion and the Law

Sexuality Issues

  • Same Sex Marriage
  • Sexual Identity and Transgenderism
  • Sexual Orientation

Women's Issues

  • Employment Discrimination
  • Women and the Law