Zacharias on Brandeis and Railroad Accidents

Lawrence Zacharias, University of Massachusetts Amherst, has posted Justice Brandeis and Railroad Accidents: Fairness, Uniformity and Consistency, a paper presented at the Touro Law Center's Conference on “Louis D. Brandeis: An Interdisciplinary Retrospective.”  It is forthcoming in the Touro Law Review 33 (2017): 51-89

The aim of this essay is not to revisit Erie, but rather to show how Brandeis’s underlying concerns in Erie evolved over 20 years in the realm of deciding railroad accident cases, particularly under the Federal Employers’ Liability Act of 1908 (“FELA”). Brandeis’s characteristic style in introducing so many of these opinions seems to indicate that he had the intertwined problems of uniformity and consistency in mind long before he arrived at Erie. His first three opinions, including his dissent in Winfield, showed him concretely what was wrong with relying onwor the courts to smooth interstate regulation under the rubric of “uniformity.” Over the next two decades FELA provided him with a useful laboratory in which he tweaked the judicial processes of the states to render their litigation “consistent.” Once he perceived consistency, he gained confidence that a system of coordinated state-centric reforms could produce the kinds of regulatory uniformity that the national economy required and that the administration of law by state courts, and not some unifying federal common law, could best serve the nation.

We note that the symposium issue (33:1) is now in print.  Thanks for our copy!