Erie and the History of the One True Federalism

56 Pages Posted: 23 Aug 2008

See all articles by Susan A. Bandes

Susan A. Bandes

DePaul University - College of Law

Date Written: August 22, 2001


This article reviews Ed Purcell's book, Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (New Haven: Yale University Press, 2000). The Review first turns, in Part II, to a discussion of Purcell's historical account of the age leading up to Erie, the creation of the Erie opinion itself, and its subsequent doctrinal evolution under rapidly evolving historical conditions. This Part focuses, in particular, on Purcell's account of the myriad ways in which political, social, and cultural influences affect the scope of the federal judicial power over time. It considers the broad political and social trends, the influence of interest groups - including the bar - and the ways in which certain highly influential jurists, particularly Justices David Brewer, Felix Frankfurter, and Louis Brandeis, and Professor Henry Hart, helped shape the evolution of legal doctrine. Specifically, Section II.A examines the expansion of the federal judicial power during the late-nineteenth-century era of federalizing commercial and industrial interests. This Section also focuses on Justice David Brewer's contribution to the expansion of Swift v. Tyson. Section II.B focuses on Justice Brandeis, his role in crafting the Erie decision, and the influences and constraints affecting that role. Section II.C focuses on the path of the Erie doctrine in the aftermath of the Progressive era, and particularly on the role of Frankfurter, Hart, and the other expositors of the doctrine of neutral principles in recasting the significance of Erie and its conception of federalism. This Part examines these influences in order to pose the question of whether a greater recognition of these influences, and the interactions among them, would enrich and improve upon the conventional ahistorical legal account of the development of doctrine. Part III considers this question. In Section III.A, I posit that although law and history are not entirely congruent in their purposes, history nevertheless can offer valuable insights into the ingredients of a principled legal jurisprudence. As Purcell shows, historical context can shed light on the ways in which, for example, the one true federalism of one era becomes the discredited formalism of the next. In documenting the changing nature of American institutions and of scholars' attitudes toward them, history reminds observers to approach current claims for timeless verities and immutable federal-state ordering with caution. Thus, in Section III.B, I examine the still influential defense of value-neutral federalism that undergirds the doctrine of neutral principles of jurisdictional law. To the extent the doctrine of neutral principles is premised on the desirability of excluding nonlegal considerations from judging, it poses a direct challenge to the argument that historical context can enrich jurisdictional doctrine. Thus, it is important to understand the historical context in which the doctrine itself arose. Here I argue that the doctrine was premised on an undefended and historically contingent belief in the possibility of value-neutral judging that should have little continuing validity. In Section III.C, I argue that this misguided belief in the possibility of a value-neutral, internally coherent body of jurisdictional doctrine has much in common with the brand of formalism that characterizes the New Federalism of the Rehnquist Court. This Section offers a critique of this aspect of the New Federalism, which, I argue, sacrifices concern for substantive justice for a questionable notion of predictability and coherence. Section III.D argues that jurisdictional doctrine, and the doctrine of federalism in particular, would benefit from more explicit recognition of the political and social values that have always shaped them, and that will inevitably continue to do so. It argues that a notion of federalism that acknowledges its social, political, and historical influences holds out the possibility of being more principled - more flexible, more responsive to changing conditions, more concerned with substantive justice, less likely to calcify around an illusion of coherence that has lost its normative hold. It concludes that Purcell is correct in suggesting that Justice Brandeis offers a model for this type of jurisprudence.

Keywords: federalism, federal courts, federal jurisdiction, neutral principles, Justice Brandeis

Suggested Citation

Bandes, Susan A., Erie and the History of the One True Federalism (August 22, 2001). Yale Law Journal, Vol. 110, No. 2, 2001, Available at SSRN:

Susan A. Bandes (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States
(312) 362-8701 (Phone)


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