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Book Review
| Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America, New Haven: Yale University Press, 2000. Pp. x + 417. $40 (ISBN 0-300-07804-8).
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| This book grows out of problems confronted in Purcell's earlier books in both obvious and subtle ways. The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (1973) described the rise of scientific naturalism in a variety of fields in the United States and how its critics, including the opponents of legal realism, condemned scientific naturalism as dangerously amoral, especially in the face of totalitarian threats from Europe in the 1930s and 1940s. If positivism were all one needed to justify a regime, then a Nazi was as legitimate as a democrat; positivism was not enough. In Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958 (1992), Purcell argued that we need to understand the informal process of settlement, as much as the rulings and procedures of courts, in order to appreciate how the federal option under diversity jurisdiction further empowered already large and wealthy corporations and further victimized the have-nots. When scholars fail to look outside of courtrooms and decisions, he chided, they miss most of the inequality built into the legal system. |
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Purcell's biographical and doctrinal subjects meld these concerns about value and inequality together. His biographical subject is Louis D. Brandeis who made his public reputation as a crusading lawyer by gathering the data of social science in order to demand that the law protect the have-nots. Brandeis solved the problem of values as a judge through his faith in reason and democracy, his concern for the underdog, and his "inclusive social and constitutional vision" (308). Brandeis was a Progressive lawyer who feared that corporations turned to the federal courts under claims of diversity of citizenship and found them eager to protect corporate property and power. Which brings us to Purcell's doctrinal subject. As a judge in 1938, Brandeis finally got the chance to overrule Swift v. Tyson (1842), which had allowed the federal judges (while exercising their diversity jurisdiction) to ignore relevant state law when it suited them. Swift had given pro-corporate judges of the turn of the century too much leeway by creating a federal common law. |
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Although the reasons for Brandeis' opinion in Erie Railroad Co. v. Tompkins (1938) were Progressive, as Purcell demonstrates in Parts I (on the federal courts and Progressive efforts to curtail their power) and II (on the writing and reasoning of Erie), the decision then took on a life of its own. In order to gain a majority of his colleagues and camouflage his Progressive purposes, Brandeis wrote "a flawed, abstract, oblique, and misleading opinion" that lent itself to multiple interpretations (163). So while Brandeis hoped to forward judicial restraint, localism, and the disadvantaged, through Erie, Felix Frankfurter wanted Brandeis' social activism forgotten and only his judicial restraint remembered. Frankfurter's student's depiction of Brandeis "bore a much closer resemblance to Frankfurter" than to Brandeis himself. Henry M. Hart, Jr., did the same thing. He began as a Progressive who condemned the federal courts for their class bias and hunger for power, but he became a leading advocate of process jurisprudence and eventually turned to the federal courts for justice. "When he changed, he changed Brandeis right along with him" (242). After Brown v. Board of Education (1954), liberals came to see the power of the federal courts as a good thing, while conservatives began complaining about federal judges. And Brandeis and Erie were invoked by liberals in order to justify broader jurisdiction for the federal courts on issues of federal rights. "The reversal of branch affinities" was complete (263). |
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One begins to see the man and the decision as an elephant being touched by a collection of blind men who cannot agree. Since Brandeis wanted to hide his purposes, it is worse: it is an elephant disguised as a table. There are embarrassing moments as a result, but Purcell is only hard on these misinterpreters at times. Just as he lays out the social origins of Brandeis' suspicion of centralization and big business, so he explains how the New Deal and then World War II made federal power and corporate control seem essential and inevitable. Then he reminds us how McCarthyism and racial segregation made liberals turn towards the federal courts for protection and relief. Social and political experience shaped legal understanding of Brandeis as much as Hart. As a result, opinions on the federal courts and the significance of diversity jurisdiction changed accordingly. And this process combined naturally with the tendency of case law to "work itself pure" (303). |
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Like Brandeis, Purcell is making a judgment about value. He agrees with what he identifies as Brandeis' virtues; he likes what Brandeis tried to do in Erie. Both were "flawed" yet "admirable" (7). And he concludes that writing history his way is valuable: "we may understand far more about the nation's constitutional enterprise by recognizing its social and cultural foundations and its human and constitutional dynamics than by straining to structure sets of formally consistent propositions or fabricating historical pedigrees for temporarily useful normative propositions" (304). So even as Purcell acknowledges that historical change naturally meant that Erie would cease to have the same meaning for later legal generations, he would much prefer that those generations stop writing briefs about history. I doubt that lawyers will have the time or interest to follow his advice, but legal historians will discover an inspiring model for describing their own elephants. |
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| Linda Przybyszewski
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| University of Cincinnati |
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