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February 28, 2008


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Adam Mossoff

Great post, Al, and really fascinating stuff! But I ask: Why should we restrict our historical research to only the Justices' personal papers?

At a recent conference on regulatory takings, the clerk who worked on the Penn Central case for Justice Brennan -- the official "author" of the opinion -- offered his take on the meaning of the now-famous legal test handed down by Brennan in that case. As reported in a recent article:

"David Carpenter, Justice Brennan's lead clerk on Penn Central, has explained that Penn Central was meant to be written in the narrower argument-framing fashion. On a 2003 retrospective panel on Penn Central, he said he 'thought Justice Brennan was making some modest efforts to bring a little content to an area of law that was . . . then quite formalist and in disarray,' that he was trying 'not [to] say very much before [he] started work on the draft and [that] in fact after it was circulated, Justice Stewart’s clerk read it and said he was pretty sure it [wouldn’t] say anything at all.'"

Eric R. Claeys, The Penn Central Test and Tensions in Liberal Political Theory, 30 Harv. Env. L. Rev. 339, 343 (2006).

This makes me wonder: should legal historians also consider the clerks who've "assisted" in writing Supreme Court opinions in figuring out what the opinion was intended to do?


All most interesting, Adam.

I think historians benefit (greatly) by looking at all sorts of sources, including papers of law clerks, to understand what was happening with a case. You'll recall discussion, for instance, of the roles Alexander Bickel and William Rehnquist in _Brown_.

I'm more skeptical, though, of the project of interpreting precedent in light of back stories. That is, I worry about allowing multiple, non-public sources to change how we interpret precedent. Seems to me that as a legal matter we ought to be relying on what the justices have said is their opinion. There's a lot that can and ought to be said on this.

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