Vol. 10 No. 7 (July 2000) pp. 433-439.

BRANDEIS AND THE PROGRESSIVE CONSTITUTION, ERIE, THE JUDICIAL POWER, AND THE POLITICS OF THE FEDERAL COURTS IN TWENTIETH CENTURY AMERICA
by Edward A. Purcell, Jr. New Haven: Yale University Press, 2000. 417 pp. Cloth $37.50.

Reviewed by Ronald Kahn, Department of Politics, Oberlin College.

This subtle, well-crafted, rigorously researched book that centers on Supreme Court Justice Louis D. Brandeis and his landmark opinion in ERIE RAILROAD CO. v. TOMPKINS (1938), will become a classic in legal thought, history, and politics. The ERIE decision overruled Justice Story's opinion in SWIFT v. TYSON (1842). SWIFT had established the authority of a "general" federal common law that was independent of state law in the field of commercial law. After the Civil War, the notion of a federal common law expanded to include municipal bonds, civil procedure, torts, real property, and workmen's compensation. At the same time as this expansion was occurring, what came to be called the Lochner era Supreme Court (1905-1937) was expanding its power through its definition of substantive due process, such as the liberty of contract. The combination of SWIFT and Lochner era substantive due process jurisprudence caused a profound increase in the federal courts' diversity jurisdiction, that is, cases it decided based on the parties being from different states. These developments resulted in the Supreme Court's restriction of state and federal regulation of business, and severe restrictions on the ability of the federal and state government to deal with the social and economic effects of industrialization and the Great Depression.

ERIE was the case in which the efforts of the Progressives to eradicate Swift bore fruit. After ERIE, in VANDENBARK v. OWENS-ILLINOIS GLASS CO. (1941), the Supreme Court announced in sweeping terms the obligation of the federal courts to follow the most recent decision of the state's highest court, in matters of state law, even when that decision was handed down after the entry of judgment in the trial court. The twin aims of the ERIE rule were to discourage forum shopping and to avoid the inequitable administration of laws. However, ERIE did not completely eliminate federal common law. As we see on the Rehnquist Court today conflicts over the contours of the 10th Amendment and judicial federalism continue to this day.

Purcell sees the book as having three levels of analysis. He notes that it "explores the complex relationship between changing American politics and evolving ideas concerning the practice of constitutional government and the role of the federal judiciary," "is a study of Brandeis and his work as a constitutional judge," and "uses ERIE as a case study to explore the ways in which historical processes shape and reshape fundamental ideas about legal doctrines, the role of the judiciary, and the nature of constitutional government" (p. 3).

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Part I of the book, Chapters 1-3, provides an overview of the period from 1877-1937, exploring the developments that helped create "the distinct politico-constitutional age that shaped Brandeis's views and ultimately the birth of ERIE" (p. 1). Purcell argues that legal commentators of all stripes came to see the federal judiciary as the branch of government that would most consistently protect private property and interstate corporate interests. They viewed state and federal legislatures, and even state courts, as most likely to threaten business interests. Purcell documents how Progressives came to believe that only by limiting federal court power and the expansion of federal and state legislative power could significant social and economic reform occur to limit the negative effects of industrialization. Purcell notes, "These developments ... underlay Brandeis's constitutional theory" (p. 2). Chapter 3, "Progressive Judicial Reform After World War I: Diversity Jurisdiction and The Labor Injunction," is particularly interesting, especially for scholars interested in the place of issues of labor power in the development of constitutional law. Purcell argues that diversity jurisdiction, which was created to protect against partisan bias against "outsiders" in state courts was abused by corporations so that they could secure hearings in the more favorable federal courts. He documents how this became a major Progressive cause. Another cause of Progressives was limiting labor injunctions, which were used to end strikes. Such injunctions were secured through the use of diversity jurisdiction to get to federal courts in lawsuits against nonresident union officials. Purcell argues the Progressives were never fully successful in eliminating diversity jurisdiction, but did have some success in limiting the labor injunction.

Part II, "Brandeis, ERIE, and the Complexities of Constitutional Judging," Chapters 4-7, centers on Brandeis's "judicial practice, his evolving constitutional philosophy, and his opinion in ERIE for a bare five-justice majority" (p. 2). Purcell argues that "Brandeis was animated by broad personal and social purposes and that he sought to use his opinion to institutionalize the goals and values of early-twentieth-century Progressivism" (p. 3). In Chapter 4, on litigant strategies and judicial dynamics in the ERIE case, Purcell argues that Brandies wrote a decision based largely on Holmes and details the compromise process among the Justices. Purcell discounts the influence of Justices Black and Stone and argues that no one seems to have been really pleased with the outcome. Chapter 5, "The Judge as Human," explores Brandeis's beliefs about judicial restraint and legislative primacy, and discusses in detail Brandeis's relationships with Frankfurter and Holmes. In Chapter 6, Purcell argues that Brandeis disliked big business more than any other member of the Court and was staunchly pro-labor. He disliked the confusion and clutter in the courts that came from Swift. Chapter 7, "Defects, Political: The Progressive as Constitutional Architect," focuses on Brandeis's belief in legislative
primacy and the view that facts and realities of social life were important in law-that law was not simply constituted by legal abstractions. However, although Brandeis was influenced by Holmes' positivism, he was not a positivist.

Part III, Chapters 8-10, explore how Professor Hart's teaching and scholarship at Harvard Law School in the post-war age of cold war politics and the search for neutrality in law resulted in a reinterpretation of ERIE with regard to the legitimacy of federal common law and


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federalism. Purcell argues "tumultuous historical changes ripped his opinion from its cultural moorings and propelled it into a drastically different world where judges and legal scholars viewed it with new eyes [which] fundamentally reshaped Brandeis's opinion as later generations struggled to control the scope and shape of federal judicial power (p. 2)." In Chapter 8, "Erosion and Creation of Meaning In an Age of Transition," Purcell explains why ERIE was immediately controversial. In doing so he offers quite specific criticism of Frankfurter's characterization of ERIE as a call for judicial restraint, while centering on the conflicts between Frankfurter and Brandeis. Purcell argues that in the twilight of Progressivism in the 1920s, 1930s, and early 1940s, the climate of the legal academy proved unable to understand
Brandeis's ERIE. New realist images of Brandeis were drawn, looking at his personal beliefs and values and portraying him as an activist; opposing pictures showed a man of principle. Purcell argues that the interpretations of ERIE for courts and commentators in this period were informed by "the continued commitment of the profession's elite to nationalism, professional craft values, and the superiority of the federal courts" and "its desire to counter the dangers of legal realism and affirm the rational nature of the judicial process." Purcell continues, "Among many commentators, those concerns helped inspire a strikingly negative view of Brandeis's decision" (p. 216). In this book one sees a wonderful portrayal of the conflict within the legal elite, including the legal professorate, with their belief in social progress and the primacy of federal courts, all leading to their misinterpreting and discounting ERIE's value. In seven pages, pp. 222-228, Purcell does a simply brilliant job in weaving together the effects of legal realism and the loss of faith in scientific naturalism and non-Euclideanism that was, in part, caused by the need for positivistic scholars to make sense of the horrors of totalitarianism. This theme was first explored in Purcell's excellent THE CRISIS OF DEMOCRATIC THEORY (1973). Here this theme is given far more texture in Purcell's subtle analysis of changes in the legal academy's vision of ERIE, state and national power, constitutional
interpretation, and judicial self-restraint versus judicial activism.

Chapter 9 details the impact of Professor Henry Hart of Harvard Law School on the reconception of American law. Purcell explores in quite precise ways how American legal thinking changed after World War II. He details why ERIE was "reimagined" by Hart and the interpretive community of his day (p. 246). This reimagination resulted from Hart's vision of the legal process born of the normative differences between totalitarian and democratic nations that were at the core of cold war era visions of the United States compared to other nations that also dominated political science, history, and the other social sciences in the 1950s through the middle 1960s. Purcell argued that, "the most general conclusion to be drawn from Hart's vision of ERIE and the federal judicial system is that legal abstraction, while never socially neutral, always remained socially volatile. Without constant reference to changing social dynamics and consequences, students of procedure can scarcely know what they are talking about (p. 257). Moreover, for Professor Hart, federal courts could provide a "juster justice" than state courts (p. 250).

Chapter 10, "Cold War Politics and Neutral Principles: The Federal Judicial Power in a New Age," is a detailed account of the actions of Congress and Chief Justice

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Earl Warren on issues of diversity jurisdiction. At the core of the chapter is a discussion of Chief Justice Warner's efforts in 1959 to slow down Congressional efforts to reduce federal court diversity jurisdiction. Warren did this by successfully getting the American Law Institute (ALI) to study the problem. This study took ten years to complete. Purcell offers a superb analysis of the ALI's 1969 STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS, in light of ERIE principles, Brandeis, and legal process scholars like Hart. Purcell notes, "The Institute's failure...was that it ignored the truly critical lesson of the history of diversity jurisdiction: formally "neutral" jurisdictional rules implicate complex questions about the relationship of social and economic
equality to the principle of equal justice.

Purcell emphasizes that the Warren Court got off to a spirited and controversial start. The other branches of government were quite unhappy with the Warren Court, as were professional legal organizations. Warren made a wise choice and stayed out of the controversy surrounding ERIE and diversity jurisdiction. By doing so, he managed to appease the profession by accepting its notions of proceduralism and federalism.

In the concluding chapter, "To Century's End: Meaning, Politics, and the Constitutional Enterprise," Purcell documents how the positions between liberals and conservatives reverse in the post-World War II period, when compared to the time of ERIE. Liberals now favor centralization; conservatives oppose it. During the Burger and Rehnquist Court eras Justices Rehnquist and Powell changed the modus operandi that the Warren Court had established, and looked to ERIE as a restraint on judicial lawmaking, while liberal academics read ERIE as empowering the federal judiciary.

Purcell argues at the end of this masterful book that none of the interpreters have really understood ERIE. Purcell offers the following analysis of ERIE: if Congress can't do it, neither can the Court; the Court should let Congress take the lead; however where the Constitution demands, the Court can enforce rights and privileges even if Congress sits on its hands.

This book is a subtle, well-researched, and exquisitely detailed analysis of the ERIE case and the complex process of constitutional change. Purcell weaves together quite different factors to explain the reimagination of ERIE, and introduces us to quite different types (and levels) of explanation for it. We see how changes in conceptions of law in the interpretive community, consisting of legal scholars and social scientists, jurists, political leaders, interest groups and legal advocates informed the reconceptualization of ERIE principles. The reader is provided a wonderful, at times brilliant, tapestry of the ERIE decision and its reincarnations in
light of the principles of Progressivism early in this century, the personal and professional values of Justices Brandeis and Frankfurter, the complex strands of legal realism, and post World War II efforts in the legal academy to secure neutral principles in law, while ensuring that the pragmatism (and social values) of the legal process advocates such as Professor Hart, are respected.

The strength of this scholarly masterpiece is the explanation of the complex and changing reasons why ERIE was misunderstood, both in its day and in subsequent generations. We learn how and why ERIE was reinterpreted in ways that

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Brandeis, the Progressives, and the legal realists could not have understood or predicted.

This book will be a prizewinner, I believe. It will be of interest to political scientists, legal scholars, and historians of American politics who are interested in the relationship of law and politics. It helps us understand the relationships among landmark cases, subsequent case-law, the process of reinterpretation of landmark cases, and changing theories and practices in the interpretive community. Finally, the book suggests how legal scholarship and case analysis is informed by historical developments in the wider society, such as the Depression, totalitarianism, and the cold war. The quite different visions of federal and state power that have been spawned by ERIE can be viewed as venues for a subtle and complex vision of legal change.

The book presents highly technical issues of federalism and diversity jurisdiction in readable form. Experts in these areas will find this must reading, as will scholars of Brandeis, Frankfurter, legal realism, and the Progressive Era. This book will also prove a useful source of information about other historical figures, including Justices Holmes, Frankfurter, Brewer, Hughes, and Jackson (prior to his years on the Court), as well as Professor Henry Hart, and Senators Thomas J. Walsh and George W. Norris. The book overflows with detail about the personal and professional networks among these individuals and others. I found the accounts of Brandeis' relationship with Holmes, and his friendship and eventual break with Frankfurter, at times, touching.

Through an analysis of these individuals and scholarly movements, a wide range of legal theories is discussed. The legal realist movement receives considerable attention in Purcell's discussion of the legal thinking of Holmes, and Brandeis, and the reaction of subsequent jurists and scholars to their views. Purcell considers Holmes to be more of a thoroughgoing realist than Brandeis. Brandeis, he argues, although one of the first preeminent scholars and jurists to view studies of social facts as important elements of legal reasoning viewed the law as having a moral fabric. Behavioralism, perhaps the successor to realism, is also contrasted with
Brandeis's jurisprudence. A man of strong convictions, Brandeis's constitutional vision included general legal principles that he supported when they conflicted with his political goals. Purcell's Brandeis is neither an intellectually isolated man nor a slave of history and personality. Purcell's discussion of the process of opinion writing in ERIE demonstrates his rather sensible approach of blending principled legal thought with realist-behavioral analysis. Purcell seriously explores both the abstract legal thinking of the justices and the political dynamics at work on the Court. For example, Chief Justice Hughes' sincere belief in overturning
Swift is contrasted with Roberts' position as Hughes' tag-along. A similar contrast appears among the Roosevelt justices. Purcell's Frankfurter is portrayed in behaviorist terms, and the picture that is drawn is not flattering. At the end of Brandeis's tenure on the Court, and the beginning of Frankfurter's, the two have a falling-out over Roosevelt's court-packing scheme. Brandeis opposed the measure on principle; Frankfurter supported the plan as a means to accomplish New Deal political goals. From this point forward, Purcell depicts Frankfurter as anxious to separate himself from Brandeis, to consciously diverge from his line of thought, and to achieve a very different presentation of legal and social issues. Purcell sees Frankfurter

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as being more driven by personal feelings and politics than by solid legal thought.

Brandeis emerges vindicated, an imperfect man and an imperfect Justice, but still one of the best. By today's standards, his views about law and politics are alien and less attractive to many, but for his time they were an admirable response to contemporary challenges. As a lawyer and a Justice, he accomplished major victories for progressive legislation. Alongside Holmes, he introduced a more empirical kind of law that did not close its eyes to the wider world. Brandeis's constitutional and institutional vision, Purcell tells us, is more principled than Holmes; he is willing to grant latitude, but not carte blanche, to the legislature.

Purcell seems to hint that were Brandeis a justice in the present day, he would take a rather different approach to jurisprudence. This represents, perhaps, an overly hopeful view. After all, Frankfurter, Brandeis's protege, became a staunch opponent of such important civil rights decisions as BAKER v. CARR (1962). It also presents the troubling dilemma that justices are no more than products of their times.

The book is meticulously researched. At times, however, the level of detail seems excessive, and perhaps even detracts from the book, when they seem to be isolated, interesting stories, rather than helping us gain command of the book's fascinating scholarly problematics about the relationships among legal principles, the interpretive community, legal institutions, and historical trends in the wider society. For example, I find myself wondering how important Henry Hart's contribution to Alger Hiss's defense fund is to explaining his analysis of ERIE.

It is to Purcell's credit, that, in dealing with the many interpretations of ERIE, he avoids being dogmatic. He neither accepts nor rejects wholesale the quite different scholarly and judicial readings of the case. Instead, he highlights what he views as the strengths and weaknesses of each reading: Frankfurter's judicial restraint, Hart's judicial primacy, Warren's activism, Powell and Rehnquist's scaling back of that activism, and Weinberg's activist interpretation.

Purcell demonstrates his strengths as synthesizer, while presenting his own interpretation of ERIE. Purcell thinks that ERIE had four main points: the Court cannot act where the Congress cannot; legislation within the appropriate power of Congress ought to receive the Court's support; the Congress ought to be the primary branch of government; and, that in the area of fundamental Constitution directives, the Court does have the authority to act independently of Congress. Each part reflects, respectively, the best parts of judicial restraint, process theory along the lines of representation-reinforcement principles, Brandeis's strongly held belief in the primacy of the legislature in American democracy, judicial activism, and the importance of rights theories to constitutional law. I am drawn to Purcell's pluralistic model of constitutional law because he makes a very strong case against the monistic theories of constitutional law and adjudication, which dominate much of contemporary constitutional theory.

However, the pluralism, detail, and, and, perhaps, even academic discipline in this book may limit its theoretical importance, especially to political scientists. The praise of Brandeis, and the viewing of ERIE through the eyes of Justices, limits the

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author from asking larger questions about law and social change. For example, I wonder what the implications are of Purcell's findings on the interpretation, misinterpretation, and reinterpretation of ERIE for the efforts of contemporary Supreme Court justices to put new life into the power of states and the importance of the 10th Amendment today in light of past Commerce Clause jurisprudence. I also wonder what significance the Purcell findings have for the debate about under
what conditions a landmark opinion should be overturned. As is seen in the contrast between the views about the conditions for overturning ROE v WADE
(1973) in the joint opinion in PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY (1992) by Justices O'Connor, Kennedy, and Souter, and the dissents by Justices Scalia, Thomas, and Rehnquist. I urge political scientists, historians, legal scholars, and scholars interested in exploring
the relationships among constitutional law, the interpretive community, and wider changes in the nation to read this book. It will be quite important reading in graduate school classes on constitutional law and legal change. Finally, scholars of politics and history, or what has been called Historical Institutionalism, will find this an important book. However, they must be prepared to place its findings within the theories of institutional change that are found in Historical Institutionalism since Purcell does not place his findings within a comprehensive theory of institutional change or American political development.

REFERENCES:

Purcell, Edward A., Jr. 1973. THE CRISIS OF DEMOCRATIC THEORY: SCIENTIFIC
NATURALISM & THE PROBLEM OF VALUE. Lexington: University Press of Kentucky.

CASE REFERENCES:

BAKER v. CARR, 369 U.S. 186 (1962).

ERIE RAILROAD CO. V. TOMPKINS, 304 U.S. 64 (1938).

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 U.S. 833
(1992).

ROE v. WADE, 410 U.S. 113 (1973).

SWIFT v. TYSON, 41 U.S. 1 (1842).

VANDENBARK v. OWENS-ILLINOIS GLASS CO. 311 U.S. 538 (1941).