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Event Summary

Back-to-back 1938 US Supreme Court decisions have created the foundation for contemporary law and mainstream conservative jurisprudence.  At an AEI event on Thursday, top law scholars discussed the ramifications of the United States v. Carolene Products and Erie Railroad v. Tompkins cases on their 75th anniversary.

Richard Epstein of the New York University Law School stressed how trends arising from the New Deal Constitution have resulted in a legal framework that favors some parties, contradicting market-based decisions that optimize economic growth. Jack Balkin of Yale Law School, in contrast, emphasized the democratic substance of the decisions and of the New Deal Constitution — that is, their potential to facilitate political experimentation and innovation.

Notre Dame Law School’s Barry Cushman then explained how in the modern constitutional order, Carolene Products has come to stand for differential standards of review applied in cases involving both economic regulation and civil rights and liberties. However, in the first decade after the decision, said Cushman, Carolene Products was cited as precedent concerning the scope of the commerce power.

Randy Barnett of the Georgetown University Law Center contended that New Deal cases rarely reveal as much as progressive law professors later said they did because they were often overread and expanded; this has led to the current contemporary progressive vision of the Constitution. Jeremy Rabkin of George Mason University Law School then suggested that the intellectual impulse underlying Erie Railroad — that states must be allowed to experiment with economic regulations — is disturbing.

Suzanna Sherry of the Vanderbilt University Law School concluded that both cases can be seen as pronouncements that the federal judiciary should not question the decisions made by federal and state legislatures. At the same time, Sherry noted that the court hedged its bets by reserving lawmaking discretion and full authority to decide when that discretion was appropriate.
–Brad Wassink

Event Description

Arguably, the US Constitution under which we live was created not in a sweltering Philadelphia summer in 1787, but in 1938 by then-president Franklin D. Roosevelt’s Supreme Court. On April 25 of that year, the justices handed down back-to-back decisions in United States v. Carolene Products and Erie Railroad v. Tompkins. Carolene Products declared any federal economic legislation constitutional. Erie Railroad wrought a massive expansion of state power over US commerce. The decisions not only marked the triumph of democratic politics over the founders’ fear of faction, but they are also the rock-bottom foundation of contemporary law and mainstream conservative jurisprudence. Carolene Products and Erie Railroad are the flipside of Lochner v. New York: according to many originalists, they are as indelibly right as Lochner was wrong, and for the same reasons.

Can we or should we revisit these questions three-quarters of a century later? Please join top legal scholars for a discussion of the ramifications of the Carolene Products and Erie Railroad cases on their 75th anniversary.

If you are unable to attend, we welcome you to watch the event live on this page. Full video will be posted within 24 hours.


11:45 PM
Registration and Lunch

12:00 PM
Opening Remarks

12:10 PM
Luncheon Debate:
Jack M. Balkin, Yale Law School
Richard Epstein, New York University Law School

Michael S. Greve, George Mason University Law School and AEI

1:00 PM
Question-and-Answer Session

1:30 PM
Panel Discussion:
Randy Barnett, Georgetown University Law Center
Barry Cushman, Notre Dame Law School
Jeremy Rabkin, George Mason University Law School
Suzanna Sherry, Vanderbilt University Law School

Henry Olsen, AEI

2:30 PM
Question-and-Answer Session

3:00 PM

Event Contact Information

For more information, please contact Brad Wassink at [email protected], 202.862.7197.

Media Contact Information

For media inquiries, please contact [email protected], 202.862.5829.

Speaker Biographies

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School and the founder and director of Yale’s Information Society Project, an interdisciplinary center that studies law and the new information technologies. He is also the director of the Knight Law and Media Program and the Abrams Institute for Free Expression at Yale. Balkin is a member of the American Academy of Arts and Sciences and the author of over 100 articles in different fields including constitutional theory, Internet law, freedom of speech, reproductive rights, jurisprudence, and the theory of ideology. He founded and edits the group blog Balkinization and has written widely on legal issues for such publications as The New York Times, the New England Journal of Medicine, the American Prospect, the Atlantic Online, Washington Monthly, the New Republic Online, and Slate. His recent books include “Living Originalism” (Harvard University Press, 2011), “Constitutional Redemption: Political Faith in an Unjust World” (Harvard University Press, 2011), and “The Constitution in 2020” (with Reva Siegel, Oxford University Press, 2009).

Barry Cushman is the John P. Murphy Foundation Professor of Law at Notre Dame Law School. Cushman teaches and writes in a range of areas, including legal and constitutional history, constitutional law, and trusts and estates. He served as James Monroe Distinguished Professor of Law and professor of history at the University of Virginia. His book “Rethinking the New Deal Court: The Structure of a Constitutional Revolution” (Oxford University Press, 1998) was awarded the American Historical Association’s Littleton-Griswold Prize in American Law and Society in 1998. In 2003, he was honored with the University of Virginia’s All-University Teaching Award. Cushman has taught regularly both at the law school and in the history department at the University of Virginia, and for several years directed the law school’s program on legal and constitutional history and the university’s joint degree program in legal history. Before teaching law, Cushman was estate planning and probate attorney at the Los Angeles firm Riordan & McKinzie. He is a former Samuel I. Golieb Fellow in Legal History at New York University School of Law and a Forbes Visiting Fellow in the James Madison Program in the department of politics at Princeton University.

Richard Epstein is the Laurence A. Tisch Professor of Law at the New York University School of Law. Formerly, Epstein was the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, where he directed the John M. Olin Program in Law and Economics. He is also the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution. He was interim dean of the University of Chicago Law School from February to June of 2001. Epstein has been a member of the American Academy of Arts and Sciences since 1985 and a senior fellow at the Center for Clinical Medical Ethics at the University of Chicago Medical School since 1983. He edited the Journal of Legal Studies from 1981 to 1991 and the Journal of Law and Economics from 1991 to 2001. His recent books include “Antitrust Consent Decrees in Theory and Practice” (AEI Press, 2007), “Federal Preemption” (edited with Michael S. Greve, AEI Press, 2007), “How Progressives Rewrote the Constitution” (Cato Institute, 2006), “Skepticism and Freedom: A Modern Case for Classical Liberalism” (University of Chicago Press, 2003), and “Cases and Materials on Torts” (Aspen Law & Business; 8th ed., 2004). He has also written numerous articles on a wide range of legal and interdisciplinary subjects.

Michael S. Greve joined the law school faculty at George Mason University in fall 2012 after having served as John G. Searle Scholar at AEI, where he specialized in constitutional law, courts, and business regulation and served as chairman of the Competitive Enterprise Institute. Before joining AEI, Greve was founder and codirector of the Center for Individual Rights, a public-interest law firm specializing in constitutional litigation. Greve has served as an adjunct professor at a number of universities, including Cornell University and Johns Hopkins University, and has been a visiting professor at Boston College since 2004. A prolific writer, Greve is the author of nine books and a multitude of articles appearing in scholarly publications, as well as numerous editorials, short articles, and book reviews.

Henry Olsen, a lawyer by training, is the director of AEI’s National Research Initiative. In that capacity, he identifies leading academics and public intellectuals who work in an aspect of domestic public policy and recruits them to visit or write for AEI. Olsen studies and writes about the policy and political implications of long-term trends in social, economic, and political thought.

Jeremy Rabkin is a professor of law at George Mason University School of Law. Before joining the faculty in June 2007, he was a professor of government at Cornell University for 27 years. Rabkin is a renowned scholar in international law and was recently confirmed by the US Senate as a member of the Board of Directors of the United States Institute of Peace. His full-length books include “Law Without Nations?” (Princeton University Press, 2005), “The Case for Sovereignty” (AEI Press, 2004), “Why Sovereignty Matters” (AEI Press, 1998), and “Judicial Compulsions: How Public Law Distorts Public Policy” (Basic Books, 1989). He also coedited (with L. Gordon Crovitz) “The Fettered Presidency, Legal Limitations and the Conditions of Responsible Policymaking” (AEI Press, 1989). Rabkin has also written numerous chapters in edited books, articles in academic journals, and essays. He received recognition as “Best Professor” in a 2002 Readers Poll of the Ithaca Times. In addition to international law, Rabkin has a particular interest in national security law and early constitutional history.

Suzanna Sherry is the Herman O. Loewenstein Professor of Law at Vanderbilt Law School. Sherry’s work in the area of constitutional law has earned her national recognition as one of the best-known scholars in the field. The author of more than 75 books and articles, she also writes extensively on federal courts and federal court procedures. After graduating from law school, Sherry was a clerk for the Honorable John C. Godbold of the United States Court of Appeals for the Fifth Circuit in Montgomery, Alabama, and then served as an associate with the law firm of Miller Cassidy Larroca & Lewin LLP in Washington, DC. She joined the Vanderbilt faculty in 2000 as the inaugural holder of the Cal Turner Chair, having previously served on the faculty of the University of Minnesota Law School since 1982. She was named the Herman O. Loewenstein Chair in Law in 2006. She is a member of the American Law Institute, the American Society for Legal History, and Phi Beta Kappa.

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