Paper presented March 31, 2016, at the Touro Law Center's Conference on "Louis D. Brandeis: An Interdisciplinary Retrospective."
28 Pages Posted: 29 Apr 2017
Date Written: July 25, 2016
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 on 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.
Keywords: Louis Brandeis, [U.S.] Supreme Court, Judicial Writing, Legal and Constitutional History
JEL Classification: K13, K23, K40
Suggested Citation: Suggested Citation
Zacharias, Lawrence s., Justice Brandeis and Railroad Accidents: Fairness, Uniformity and Consistency (July 25, 2016). Touro Law Review, Vol. 33, 2017; Paper presented March 31, 2016, at the Touro Law Center's Conference on "Louis D. Brandeis: An Interdisciplinary Retrospective.". Available at SSRN: https://ssrn.com/abstract=2960092