Tuesday, June 23, 2015

The Purcell Backlist

Edward A. Purcell, Jr. (credit)
Not too long ago, Edward A. Purcell, Jr., New York Law School, posted a number of items from his backlist.  If you missed some of these articles and book reviews by this masterful historian of federal courts and legal ideas, now is a good time to catch up.

Barry Friedman’s The Will of the People: Probing the Dynamics and Uncertainties of American Constitutionalism, Michigan State Law Review 2010: 663-95.
This essays examines Barry Friedman’s book, The Will of the People, and its thesis that, with lags and hesitations, the Supreme Court’s constitutional jurisprudence has increasingly adapted to the changing social and political attitudes of the American people. Noting the book’s close affinity with the work of recent scholars who argue that popular attitudes should and do have substantial influence in shaping constitutional law, the essay explores the lessons Friedman draws from his constitutional history and, in particular, the significance of four “critical periods”: the Federalist Era with its opposition to what seemed an overtly partisan Court, the first half of the nineteenth century with its widespread defiance of the federal judicial power, the long period from the Civil War to the New Deal when Americans sought to limit and control the judicial power, and the modern period that brought general acceptance of federal judicial power once it had learned to accommodate itself more closely to popular demands. The essay highlights the qualifications Friedman makes to his thesis, and it examines three particular historical issues -- the origins of the Judiciary Act of 1875, the Court’s alleged “formalism” in the late nineteenth century, and the relationship between the Court’s jurisprudence addressing racial and economic issues at the beginning of the twentieth century -- to extend and deepen Friedman’s analysis. The essay concludes by emphasizing the importance of history in enabling Americans to understand their constitutional system more realistically and thus, one hopes, to honor and maintain it more effectively.
Evolving Understandings of American Federalism: Some Shifting Parameters, New York Law School Law Review 50 (2006): 635-98:
This article examines the enduring question of the nature of the American federalism and its supposed role as a constitutional norm. It argues that federalism has not, and cannot, provide specific normative directions for resolving contested constitutional issues. The article stresses the fact that American understandings of the nation’s constitutional federalism were from the beginning sharply contested, and it explores the ways in which those understandings have remained sharply contested over the centuries. In particular, it traces changes that have occurred in ideas about the role of the Supreme Court, the “values” of federalism, the nature of federalism as a structure of government, and the very nature and meaning of the Constitution itself. The article concludes that “originalist” ideas misunderstand the nature of the federal system and that no “originalist” theory can either capture the reality of American constitutional federalism or provide specific normative direction to resolve the contemporary problems it confronts. Rather, American constitutional federalism must be understood as an evolving national enterprise guided generally by certain basic, if contested, values and principles and that those values and principles endure and give the system its true meaning.
Caseload Burdens and Jurisdictional Limitations: Some Observations from the History of the Federal Courts, New York Law School Law Review 46 (2003):  7-28.
This article examines the history of federal courts and the repeated efforts made over the centuries to reshape their jurisdiction to meet the press of continually growing caseloads. Identifying various methods used in the past to expand judicial capacities and restrict the influx of new cases, it addresses the fundamental normative question that should guide all efforts to reshape federal jurisdiction: What kinds of cases should the federal courts hear, and which kinds of cases should command the highest priority? The article argues that neither the Constitution nor any other authoritative legal source provide adequate answers to those questions. The challenge of meeting the problem of expanding caseloads is unavoidably political, it maintains, and all efforts at reform have been and will continue to be shaped largely by the nation’s evolving politics. The article draws on history to suggest some reasons to be hopeful about the possibilities for wise jurisdictional reform in the future, and it concludes by identifying the protection of individual rights against governmental actions as, in the words of Judge Jon O. Newman, the “pure gold” of the American judicial system and the most important function of the federal courts.
The Particularly Dubious Case of Hans v. Louisiana: An Essay on Law, Race, History, and “Federal Courts,” North Carolina Law Review 81 (2003): 1927-2059.
In a number of striking decisions the Rehnquist Court has limited the powers of Congress and substantially insulated the states from federal authority. In doing so it has repeatedly and explicitly based its jurisprudence on Hans v. Louisiana, an 1890 decision in which the Court held that the Eleventh Amendment barred citizens from suing their own states in the federal courts for money due on the state’s bonds. Hans asserted that the Eleventh Amendment, despite its narrow language, was intended to recognize a broad principle of state sovereign immunity which prohibited all suits against states absent their consent.

While the policy behind the Rehnquist Court’s decisions may be wise or desirable in the early twenty-first century, its reliance on Hans is not. Although Hans invoked the history of the Eleventh Amendment’s drafting and ratification, its reasoning and conclusion did not reflect the intent of the amendment’s framers but the purposes of the post-Reconstruction settlement. That informal but well understood agreement among white Americans, driven in large part by racism, allowed the South a special and limited independence in imposing white rule and repudiating its state debts in exchange for national reconciliation and unity. Thus, as a matter of history, Hans gave voice not to the intent of the 1790s but to the compromise of the 1890s.

Considered in the light of its own history, then, Hans properly merits no authority as a constitutional precedent for three interrelated reasons. First, it was a decision of expedience, not of principle. An examination of the Court’s jurisdictional decisions in the late nineteenth century shows that Hans was typical of the pervasive jurisdictional instrumentalism that marked the Court’s work across the board as well as in cases construing the Eleventh Amendment itself. Second, as an instrument of the post-Reconstruction settlement and an integral part of the Court’s general abandonment of southern blacks, Hans was both the product and tool of a pervasive racism among white Americans, north as well as south. Third, and legally pivotal, Hans was premised on early nineteenth-century procedural assumptions that the Court had already rejected and, decisively, on antebellum jurisdictional and constitutional assumptions that the Fourteenth Amendment had repudiated. Thus, Hans was a decision of mere temporary expedience, an instrument of racism and betrayal, and the product of an outmoded and rejected constitutional jurisprudence. As such, it has no claim to enduring authority as a constitutional precedent.

Four of the justices on the Rehnquist Court who have repeatedly relied on Hans to expand the Eleventh Amendment should agree that those grounds are sufficient to require its repudiation. Only three years ago, in a case involving the Establishment Clause, they maintained that a constitutional doctrine “born of bigotry” should “be buried.” So, now, should Hans be buried.
Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts, Law and Social Inquiry 24 (1999): 679-750
This article examines the classic work of Felix Frankfurter and James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System (1928), comparing its approach and findings to those of leading histories of the lower federal courts that have appeared in the last quarter century. Although the Frankfurter and Landis book was a pathbreaking history of the jurisdiction and caseload of the lower federal judiciary, it was far more than that. In form and rhetoric an “objective” and “scientific” study of “the federal system,” it was in fact an elaborate historical justification for a set of reform proposals intended not only to make the federal courts more efficient but also to reshape their structure and jurisdiction to serve the Progressive political purposes that the authors shared with Justice Louis Brandeis. After explaining the book’s underlying political strategy and implications, the article traces its subsequent influence on thinking about the proper role and jurisdiction of the federal courts. Finally, the article reviews several dozen recent histories of the lower federal courts and outlines some of the ways in which the influence of the Frankfurter and Landis book continues and, more important, some of the ways in which recent works depart from it and substantially advance our understanding of the history and operation of the lower federal courts.
Learned Hand: The Jurisprudential Trajectory of an Old Progressive, Buffalo Law Review 43 (1995):  873-926
Reviewing Gerald Gunther’s biography of Learned Hand, this article explores the career and jurisprudence of Judge Learned Hand. It focuses on the evolution of Hand’s thinking from his early days as a Progressive to his late years as the advocate for an extreme form of “judicial restraint,” and it argues that Gunther’s book, although thorough and incisive, overlooks some critical changes that occurred in Hand’s thinking over the course of his life. First, it argues that Hand did not merely follow the constitutional prescriptions of his teacher, James Bradley Thayer, but modified them -- as did other Progressives, such as Louis Brandeis and Felix Frankfurter -- to serve his early reform goals. Second, the article questions Gunther’s explanation for Hand’s shift on First Amendment issues from his famous opinion in the Masses case (1917) to his opinion in United States v. Dennis (1950), and it argues that it is more the former than the latter that requires exploration and understanding. Hand’s changing views between the two cases, the article maintains, can be fully understood only by considering how his attitudes and values began evolving in the 1920s and 1930s as a series of political and personal developments led him to cast off his earlier Progressive politics and adopt a highly skeptical view of government and an increasingly rigidified and desiccated concept of judicial review. Finally, the article explores Gunther’s treatment of Hand’s famous Harvard lectures that were published as The Bill of Rights (1958), and it suggests that in his final years Hand’s jurisprudential skepticism and rigidification did him a great disservice. A special commitment to judicial restraint, the article concludes, is a product of personal values and attitudes as much as is any other jurisprudential commitment.
Rethinking Constitutional Change, Virginia Law Review 80 (1994): 277-90
This article examines the so-called “New Deal Constitutional Revolution” and comments in particular on the work of Barry Cushman who maintains that neither the election of 1936 nor Franklin Roosevelt’s “Court packing” plan caused a “switch in time” in 1937. Severely challenging “externalist” explanations, Cushman maintains that the individual justices remained doctrinally consistent. This article argues that, in spite of the importance of “internalist” considerations and arguable consistencies in the jurisprudence of the Justices, several factors suggest the limits of Cushman’s thesis and point to the likelihood that “external” factors also played an important role in the Court’s decisions in 1937. Most important, it points to reasons to believe that Justice Roberts, the critical “swing” Justice in those decisions, did in fact shift his views in voting to uphold pivotal New Deal measures, and it stresses the critical importance of doctrinal areas where Justices enjoy relatively open areas for the exercise of discretion.

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