Tuesday, October 6, 2020

Green on Erie's Fall and Rise

Craig Green, Temple Law, has posted Erie and Constitutional Structure: An Intellectual History, which appeared in the Akron Law Review 52 (2019):

This essay celebrates Erie's 80th birthday by charting the decision's extremely dynamic significance as a constitutional decision. Newly collected historical evidence shows that "original Erie" was criticized as constitutionally heretical in the 1930s and 1940s . The decision rose to power only in the 1950s and 1960s, carried forward on the powerful legal-process shoulders of Hart and Wechsler. During the 1970s and 1980s, Erie was pushed toward the periphery of constitutional law along with the legal process school itself. Yet in the 21st century, Erie rose from the ashes as political conservatives articulated a forceful "new Erie" myth about separation of powers.

The fact that Erie's multiple meanings are so often conflated or ignored reveals a correspondingly prevalent inattention to methods of interpreting precedents. As a matter of legal theory, iconic court decisions offer legal mixtures of stability and dynamism, of legitimacy and politics, that are analogous to statutes, constitutions, and other forms of law. Erie's birthday offers an especially useful chance to think about the untapped possibilities of "precedential originalism" or "living precedentialism," alongside interpretive schools that are well known in other legal contexts.

--Dan Ernst