Harlan, Brandeis & the “100 Most Creative Moments in American Law”

31Mar09

I realize I’m arriving a little late to this party, but I just found out about this article. Last year, Valparaiso professor Robert Blomquist published “Thinking About Law and Creativity: on the 100 Most Creative Moments in American Law” in 30 Whittier Law Review (2008) 119. Jumping off from a Posner decision in U.S. v. McKinney, Blomquist discusses the history of innovation and creativity in law — which is by its very nature is a conservative profession. He follow up the discussion with a tentative list of the 100 most creative moments in American law. The top 10 has what one would expect: the Constitution, the Declaration of Independence, the Bill of Rights, Marbury v. Madison, etc.  After that, though, the list gets real interesting.

Brandeis makes two appearances: his “Right to Privacy” article is #75, while his opinion in Erie Railroad v. Tompkins is #94. Harlan is represented (sort of) at #20: Plessy v. Ferguson, although Blomquist isn’t really citing Harlan’s dissent. Instead he cites the majority opinion as an example of what he calls negative creativity: where creative means were used to reach a deplorable outcome.

I’m not sure how instructive lists like this are, but they make for fun reading by providing grounds for arguments and head scratching bewilderment. And Blomquist’s list doesn’t disappoint in either area. I have two main objections to the list: one general and one specific. Blomquist specializes in environmental law and he lets his enthusiasm for the subject get the better of him. I count at least 20 items that relate to the environment. I believe protecting the environment is extremely important, but devoting 20% of a list that’s supposed to represent American law as a whole is over the top. Blomquist says that he solicited the opinion of over 400 law professors for examples of creative legal acts. I wonder how many of them chose Rachel Carson’s The Silent Spring (#43) or Al Gore’s An Inconvenient Truth (#68)? Even after reading his justification for including Earth Day (#63) I still don’t see how it qualifies as a legal event.

My other complaint is one of omission. How could Brandeis’ brief for Muller v. Oregon not make the list? Brandeis’ emphasis of social science data over legal precedent forever changed how law was practiced? Without Muller, Brown v. Board of Education (#10) might not have ever happened. (Interestingly, Blomquist does include Lochner v. New York as another example of negative creativity, which Muller was instrumental in discrediting.)

Despite my carping, I enjoyed the list very much and judging from the comments on the article in the blogosphere, a lot of other people have as well. Blomquist says the list is tentative and that he will incorporate people’s suggestions into the book he is planning on producing. It’ll be interesting to see if  the Brandeis brief makes the final cut.

Blomquist’s article is available on SSRN.

Brandeis’s brief for Muller v. Oregon is also available online.

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