Brandeis and the Progressive Constitution: Erie, the judicial Power, and the Politics of the Federal Courts in Twentieth-Century America.

• Author: Bandes, Susan

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. Pp. 417. $37.50.

1. INTRODUCTION

   In his ambitious and beautifully realized new book, Edward Purcell reminds his readers that only recently have federal courts scholars begun to consider the extent to which their subject is the product of distinctive historical developments.(1) One of the many gifts of this important work is its vivid demonstration of how much scholars gain by studying jurisdictional issues in historical context, at least when history is treated with the richness and breadth of purpose that characterize Brandeis and the Progressive Constitution.

   Purcell describes his book as a work of history, not of legal analysis. But it is history, and historical method, that should be of tremendous interest to legal scholars. This rich, nuanced, and meticulously researched work uses Erie,(2) a decision that has transformed, Zelig-like, to personify each jurisprudential age, as a prism through which to view the evolving concept of federalism, and, more generally, the cyclical erosion and creation of doctrinal meaning. It weaves together intellectual, political, social, and legal history to tell the compelling story of the changing social dynamics that engendered and then constantly reinvented the Erie doctrine. In modeling this use of history, Purcell shows, implicitly and explicitly, the limits of the current doctrinal method for understanding the evolution and proper role of the federal courts. For, as Purcell says, "[w]ithout constant reference to changing social dynamics and consequences, students of procedure can scarcely know what they are talking about. Whatever social purposes abstract analyses might be designed to serve, historical changes continually refit them to new and unexpected ends."(3) Placing jurisdictional doctrine in historical context illuminates the social and political influences that shape and reshape the contours of the federal judicial power and our evolving notions of federalism.

   Conventional legal doctrinal method strips away acknowledgment of these forces and recasts principles like federalism in more abstract and formalized terms. It portrays the development of law as linear, logical, and transcending political and social variables. As I argue, the impulse to cast doctrinal development in these formal terms has numerous sources, including the perceived need to satisfy the requisites of the rule of law. When federalism is portrayed as an abstract notion, unaffected by changing political conditions or the changing nature of the institutions themselves, that portrayal gives the seductive appearance of advancing the goals of consistency, predictability, and mason. The legal process school, with its focus on discerning neutral jurisdictional principles, identified the field of federal courts with this effort to articulate a federalism transcending the vagaries of history and politics. In attempting to impart a systemic coherence to the field, and to federalism as its central organizing principle, the legal process approach advocated an insularity that sought to exclude a whole host of influences and contingencies--political, cultural, historical, and practical.(4)

   In a variety of legal subject areas, exposure to interdisciplinarity has both forced and helped legal scholars to identify the hidden assumptions, nonlegal influences, and value choices underlying legal concepts.(5) The field of federal jurisdiction, however, wards off this challenge to its hermeticism to the extent it defines itself as a closed, autonomous system in which jurisdictional issues can and should be decided based on their fidelity to internally defined principles(6) like federalism and separation of powers.(7) There is a troubling persistence to the assumption that these terms possess their own normative content,(8) or describe stable essences(9) that exist in the real world, yet somehow outside time.(10) There persists an equally strong conviction that jurisdictional principles should operate independent of the results to which they lead, the substantive issues to which they are applied,(11) or the ideological or emotional commitments of the jurists who apply them. In short, the exclusion of substantive justice as a proper inquiry is an essential part of the field's self-definition.

   Granted, the concept of neutral jurisdictional principles(12) has been taking increasing heat. It is becoming ever clearer, as legal scholars gain historical perspective and the benefit of insightful scholarship,(13) that the legal process school's(14) belief in an abstract and timeless logic of federalism is itself a product of its time, and is itself based on a choice of values--albeit a choice that went unacknowledged and undefended. Yet it is not at all clear that the notion has lost its hold on the field.(15) Certainly, for reasons complicated by the perceived requisites of the judicial role, the concept of neutral principles remains an article of faith in judicial opinions. The more basic question is whether the belief in the existence and efficacy of neutral principles is separable from the field with which it was created. That is, if scholars accept the inevitability of value choices, will procedure be subsumed by substance, or will principles remain to help bound, guide, and assess the allocation of state and federal power? Or, to state the question more optimistically, can a broadening awareness and exploration of the contingencies shaping jurisdictional policy help enrich the field?

   This is an opportune and even necessary time to ask these questions. Our nation is witnessing a radical restructuring of federal-state relations. The restructuring, often dubbed "The New Federalism," is being accomplished largely through revitalizing the Tenth Amendment and establishing a categorical anticommandeering principle,(16) sharply restricting the power of Congress to legislate under the Commerce Clause,(17) restricting the power of Congress to legislate under Section 5 of the Fourteenth Amendment,(18) and greatly expanding state sovereign immunity.(19) Since 1995, the Court has invalidated all or part of twenty-five federal laws, many on federalism grounds.(20) How should the desirability of this emerging vision of federalism be assessed?

   Perhaps, as some have argued, the Supreme Court is illegitimately imposing its personal vision of federalism on an unwilling nation, Lochner-like,(21) or perhaps we are entering a fourth transformative era of lawmaking on par with the framing of the Constitution, Reconstruction, and the New Deal.(22) The high-stakes rhetoric employed by both sides reflects a deep ideological division on the question of what constitutes a proper federalism. Such an extreme fissure sorely tests the belief in an immanent principle of federal-state ordering that is based on a national consensus and transcends political ideology. Long-term branch affinities(23) have undergone a noticeable shift, as conservatives look to the Court for protection and liberals argue for legislative primacy, calling into question the ideal of an ahistorical commitment to particular institutional roles.(24) Scholars and dissenting judges accuse the Court of using federalism as a cover for advancing hidden agendas like antipathy to individual rights in the same way the Court once used federalism as a cover for the defense of slavery or laissez-faire capitalism.(25) A concept of federalism that may have appeared coherent and timeless during more harmonious times is now revealed to be contested, temporary, and contingent. At such junctures, it is easier to locate ourselves in the realm of values, politics, and a particular historical moment,(26) and, from that vantage point, to reassess the requisites for a coherent and principled notion of federalism.

   As Purcell notes, judicial opinions "blur, obscure, and then replace broad and complex historical understandings with formalized doctrines."(27) History expands our understanding of the variables that influence the evolution of law, and it therefore poses a challenge to our notions of law's stability and coherence.(28) The challenge needs to be taken seriously, as a signal to reexamine those notions and their continuing viability. How stable or flexible, how impervious or porous should a principled system be? Is a principled federalism possible that fails to defend its value choices and acknowledge its social and political goals? Alternatively, is a principled federalism possible that more fully takes the influence of these complex variables into account?

   In Brandeis and the Progressive Constitution, Edward Purcell provides an admirable model for considering these questions. The book is organized into three major sections. Part I focuses on the Progressive era and the expansion of federal judicial power. Part II shifts focus to a consideration of Justice Brandeis and the genesis of the Erie opinion. Part III follows the evolution of the Erie doctrine and considers it in the larger context of the nature of historical and legal change. Purcell's concerns are ultimately about the very nature of a principled jurisprudence. The book's historical approach affords insight into the choices and tradeoffs implicated in defining a coherent field and populating it with coherent concepts.

   This Review first turns, in Part II, to a discussion of Purcell's historical account of the age leading up to Erie, the creation of the Erie opinion itself, and its subsequent doctrinal evolution under rapidly evolving historical conditions. This Part focuses, in particular, on Purcell's account of the myriad ways in which political, social, and cultural influences affect the scope of the federal judicial power over time. It considers the broad political and social trends, the influence of interest...