Brandeis, Harlan and “Supreme Mistakes”

30Jan12

On April Fool’s Day of 2011, Pepperdine Law School hosted a symposium called Supreme Mistakes which was dedicated to five of the “worst” US Supreme Court decisions of all time. The structure of the symposium was quite ingenious: five constitutional law professors gave lectures that castigated their assigned cases, while another five professors played opposing attorneys and, while not actually  defending their cases, gave at least ameliorating circumstances as to how the court could have made those decisions in the first place.

Four of the five cases discussed were obvious choices: Dred Scott, Buck v. Bell, Korematsu v. United States, and of course, Plessy v. Ferguson. Plessy was a bit too obvious of a choice for its prosecutor, Yale Professor Akhil Reed Amar, who used the case as an occasion to talk about the concept of an anti-canon of American law and, incidentally, to plug his forthcoming book America’s Unwritten Constitution. As Professor Amar states in his speech, Pepperdine professor Barry P. McDonald had a much harder assignment in “defending” Plessy, and he doesn’t actually try too hard to do so, other than by putting the decision in the context of its times.

The fifth case discussed is something of a wild card: Erie Railroad Co. v. Tompkins, a case that not only if generally recognized as one of Brandeis’ greatest achievements on the Court but also as one of the most significant decision in the history of the Court. The title of Vanderbilt law professor Suzanna Sherry’s speech aptly sums up her argument: “Wrong, Out of Step, and Pernicious: Erie as the Worst Decision of All Time.” Professor Sherry levels many charges against Brandeis’ opinion in Erie–too many to go into here. Primarily, she claims that Brandeis’ reasoning was based on faulty interpretation of the 1789 Judiciary Act and that a decision meant to minimize venue shopping by corporations and confusion between the realms of state vs. federal common law has had the exact opposite effect. Pepperdine professor Donald Earl Childress III “defends” Brandeis’ opinion by saying that he’s not entirely sure if he disagrees with Professor Sherry. But he argues that Erie is still important for helping to preserve federalism and for forcing federal courts to be aware of the state vs. federal law issue.

All of the speeches from the symposium were reprinted in volume 39, number 1 issue of the Pepperdine Law Review, which unfortunately is not available on the web unless you have a subscription to West, Lexis or Hein Online. Professor Sherry does have her article available for download on SSRN. Even better, though, C-SPAN recorded the entire symposium and has the Plessy and Erie sessions (as well as all the others) available for free viewing on their web site.

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