Edward A. Purcell Jr.
Joseph Solomon Distinguished Professor of Law
Edward A. Purcell Jr. is the Joseph Solomon Distinguished Professor at New York Law School and one of the nation’s foremost authorities on the history of the U.S. Supreme Court and the federal judicial system. In 2013, he received the “Outstanding Scholar Award” from the American Bar Foundation.
His most recent book, Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon (Oxford University Press, 2020), is a critical study of Justice Antonin Scalia’s jurisprudence, his work on the Supreme Court, and his significance in the history of American constitutionalism. After tracing Scalia’s emergence as a hero of the political right, it examines his general jurisprudential theory, arguing that he failed to produce either the objective method he claimed or the “correct” constitutional results he promised. Focusing on his judicial performance over his 30 years on the Court, it examines his opinions on virtually all of constitutional issues he addressed from fundamentals of constitutional structure to specific interpretations of most major constitutional provisions. The book argues that Scalia applied his jurisprudential theories in inconsistent ways and often ignored, twisted, or abandoned the interpretive methods he proclaimed in reaching results that were generally consistent with the political and ideological values of the post-Reagan Republican coalition. Most broadly, it argues that his jurisprudence and career are particularly significant because they exemplify—contrary to his own persistent claims—three paramount characteristics of American constitutionalism: the inherent inadequacy of “originalism” and other formal interpretive methodologies to produce “correct” answers to controverted constitutional questions; the relationship—particularly direct in Scalia’s case—between constitutional interpretations on one hand and substantive political goals on the other; and the truly and unavoidably “living” nature of American constitutionalism itself. As a historical matter, the book concludes, Scalia stands as a towering figure of irony because his judicial career disproved the central claims of his own jurisprudence.
Professor Purcell’s earlier book, Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (Yale University Press, 2000), examines how the Erie case provides a window into the legal, political, and ideological battles over the federal courts in the twentieth century and also offers an in-depth study of Supreme Court Justice Louis D. Brandeis’s evolving constitutional jurisprudence. The book has been hailed by reviewers as a work destined to occupy an important place in the constitutionalhistorical canon. It was awarded an American Bar Association Silver Gavel Certificate of Merit, the Supreme Court Historical Society’s Triennial Griswold Prize, and the Association of American Law School’s Coif Triennial Award.
After writing the book on Justice Brandeis, Professor Purcell published Originalism, Federalism, and the American Constitutional Enterprise: A Historical Inquiry (Yale University Press, 2007), examining the original structure and subsequent operations of the federal system and refuting the widely accepted belief that the founding fathers crafted a careful constitutional balance of power between the states and the federal government. The book argues that there was no clear agreement among the founders regarding the “true” nature of American federalism, nor was there any consensus on a “correct” line dividing national authority from state authority. The book maintains that even if there had been some such true “original” understanding, the elastic, dynamic, and underdetermined nature of the constitutional structure would have made it impossible for subsequent generations to maintain any such specific balance.
Professor Purcell first became interested in legal and constitutional issues when he was studying twentieth century American intellectual history at the University of Wisconsin, where he began work on legal realism and its relationship to democratic theory and on the rise of totalitarianism during the 1930s. After completing his Ph.D., he taught American history at the University of Missouri and, while there, took a year’s leave of absence to serve as Charles Warren Fellow in American Legal History at Harvard Law School. “My research on legal realism had made me realize that I was dealing with issues I didn’t fully understand,” he recalls, “and I knew I needed some legal training.” At Harvard he sat in on first-year classes, which he found “fascinating,” and finished his first book, The Crisis of Democratic Theory: Scientific Naturalism & the Problem of Value (University Press of Kentucky, 1973), which was awarded the Frederick Jackson Turner Prize by the Organization of American Historians. Returning to the University of Missouri, he became a tenured professor in the department of history but found himself increasingly drawn to legal subjects and decided to return to Harvard to complete his legal education. “While I was in law school as a fulltime student,” he remembers, “I concluded that, if I was really going to understand law and the legal system, I had to go into practice for a time.”
After graduation, Professor Purcell joined Paul Weiss Rifkind Wharton & Garrison LLP and remained there from 1980 to 1989, periodically taking leaves of absence to work on what was to become his second book, Litigation & Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958 (Oxford University Press, 1992). “By 1988 I realized that I wasn’t going to finish the book if I remained a practicing lawyer,” Professor Purcell says. “Then, I got a call from New York Law School asking me to teach Federal Courts and Civil Procedure—exactly what I was writing about. Both the timing and the subjects were perfect.” The law school environment has provided the “intellectual crackle” he loves. “When a law school class goes really well,” he believes, “it’s a fantastic experience.” In addition to teaching Civil Procedure and Federal Courts, he also teaches courses on Civil Rights Law and Complex Litigation.
Professor Purcell was born in Kansas City, Missouri, where he grew up and attended Rockhurst College. Subsequently, he received an M.A. in American history from the University of Kansas before attending the University of Wisconsin. Prior to law school, Professor Purcell also taught at the University of California, Berkeley and at Wellesley College. He has served on the Board of Directors of the American Society for Legal History and the Community Law Offices of the Legal Aid Society, and he is currently a member of the Advisory Board for the Federal Judicial Center’s Narrative History of the Federal Courts and the Board of Academic Advisors of the Institute of Constitutional Studies at George Washington Law School. He has been active in the Association of the Bar of the City of New York on its committees for Housing Court, the Legal Needs of the Poor, and the President’s Committee on Implementing the Report of the Pro Bono Housing Court Project. In 2004 he was elected Program Chair of the Federal Courts Section of the Association of American Law Schools, served as the Section’s Chair in 2005–06, and continues to serve on the Section’s Board of Directors. In addition to his books, he has published widely in law reviews (including the Virginia Law Review, the University of Pennsylvania Law Review, the Harvard Civil Rights/Civil Liberties Law Review, and the UCLA Law Review) and history journals (including the American Historical Review, the Journal of American History, the Law and History Review, and the American Quarterly). He has also contributed chapters to several books, including International Law in the U.S. Supreme Court (Cambridge University Press, 2011), the Cambridge History of Law in America (Cambridge University Press, 2008), Progressive Lawyering, Globalization and Markets: Rethinking Ideology and Strategy (William S. Hein & Co., 2007), and Private Law and Social Inequality in the Industrial Age: Comparing Legal Cultures in Britain, France, Germany, and the United States (Oxford University Press, 2000).
Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon (Oxford University Press, 2020).
Originalism, Federalism, and the American Constitutional Enterprise: An Historical Inquiry (Yale University Press, 2007)
Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America. New Haven, CT: Yale University Press, 2000.
Litigation & Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958. Oxford University Press, 1992.
The Crisis of Democratic Theory: Scientific Naturalism & the Problem of Value. University Press of Kentucky, 1973.
“The Supreme Court and International Law, 1901-1945: Historical Commentary,” in David L. Sloss, Michael D. Ramsey and William S. Dodge, eds., The U.S. Supreme Court and International Law: Continuity or Change? (Cambridge University Press, 2011), 285-313
“Comment on Sosa v. Alvarez-Machain” in David L. Sloss, Michael D. Ramsey and William S. Dodge, eds., The U.S. Supreme Court and International Law: Continuity or Change? (Cambridge University Press, 2011), 499-504
“Some Horwitzian Themes in the Law and History of the Federal Courts,” in Daniel W. Hamilton and Alfred L. Brophy, eds., Transformations in American Legal History: Law, Ideology, and Methods–Essays in Honor of Morton J. Horwitz (Harvard University Press, 2010), Vol. 2, 271-286
“The Story of Michigan v. Long: Supreme Court Review and the Workings of American Federalism,” in Judith Resnik and Vicki C. Jackson, eds., Federal Courts Stories (Foundation Press, 2009), 115-139
“The Courts, Federalism, and the Federal Constitution: 1920-2000,” in Christopher Tomlins and Michael Grossberg, eds., The Cambridge History of Law in America, (Cambridge University Press, 2008), Vol. 3, 127-174.
“Progressive Lawyering: An Historical Overview,” in Claire Dalton, ed., Progressive Lawyering, Globalization and Markets: Rethinking Ideology and Strategy (William S. Hein & Co., 2007), 7-22
“The Story of Erie: How Litigants, Lawyers, Judges, Politics, and Social Change Reshape the Law,” in Kevin M. Clermont, ed., Civil Procedure Stories
(Foundation Press, 2004), 21 – 74
– Second Edition, revised (2008), 21 – 79
“The Action Was Outside the Courts: Consumer Injuries and the Uses of Contract in the United States, 1875–1945.” In Private Law and Social Inequality in the Industrial Age: Comparing Legal Cultures in Britain, France, Germany, and the United States, at 505–535, edited by W. Steinmetz. Oxford University Press, 2000.
“Violence and Social Change: The Homestead Strike.” In Present in the Past: Source Problems in American History, at 259–264, edited by A. Rappaport & R.P. Traina. MacMillan, 1972.
ARTICLES AND REVIEW ESSAYS
“The Fateful Republican Party Gamble,” The Hill (2020)
“The Senate Itself is on Trial,” The Hill (2020)
“Why Law of Evidence Supports the Verdict that the President is Guilty,” The Hill (2020)
“Nancy Pelosi is defending the Constitution with her actions,” The Hill (2019)
“Republicans Must Not Abandon Originalism of the Constitution,” The Hill (2019)
“Trump and the Coming Moment of Truth for the Federal Judiciary,” The Hill (2019)
“The Historical Significance of Judge Learned Hand: What Endures and Why?” 50 Arizona State Law Journal 855 (2018)
“Exploring the Origins of America’s ‘Adversarial’ Legal Culture,” 70 Stanford Law Review Online 37 (2017)
“What Changes in American Constitutional Law And What Does Not?” 102 Iowa Law Review Online 64 (2017)
“The Judicial Legacy of Louis Brandeis and the Nature of American Constitutionalism,” 33 Touro Law Review 5 (2017)
“Capitalism and Risk: Concepts, Consequences, and Ideologies,” 64 Buffalo Law Review 23 (2016)
“Reflections on the Fiftieth Anniversary of the March and the Speech: History, Memory, Values,” 59 New York Law School Law Review 17 (2015) – reprinted in 19 Legal History eJournal (July 15, 2015)
“Paradoxes of Court-Centered Legal History: Some Values of Historical Understanding for a Practical Legal Education,” 64 Journal of Legal Education 229 (2014)
“Democracy, the Constitution, and Legal Postitivism in America: Lessons from a Winding and Troubled History,” 66 Florida Law Review 4 (2014)
“From the Particular to the General: Three Federal Rules and the Jurisprudence of the Rehnquist and Roberts Courts,” 162 University of Pennsylvania Law Review 7 (2014)
National League of Cities: Judicial Decision-Making and the Nature of Constitutional Federalism, 91 Denver University Law Review Online 179-190 (2014)
Semi-Wonderful Town, Semi-Wonderful State: Bill Nelson’s New York (Symposium: The Making of a Legal Historian: Reassessing the Work of William E. Nelson), 89 Chicago-Kent Law Review 1085-1108 (2014).
“Issues and Readings on the Recent History of the Federal Judiciary,” Legal History Blog (2013)
“The Umpire Changes the Rules,” co-authored with B. Goldstein, Huffington Post, (2013)
“Understanding Curtiss-Wright,” 31 Law and History Review 653 (2013)
“Scholarly, Graceful, and Illuminating: The Books of James F. Simon,” 57 New York Law School Law Review 483 (2013)
“The Ideal of Judicial Independence: Complications and Challenges,” 47 Tulsa Law Review 141 (2012)
“Barry Friedman’s The Will of the People: Probing the Dynamics and Uncertainties of American Constitutionalism,” 2010 Michigan State Law Review 663
“Ex parte Young and the Transformation of the Federal Courts, 1890-1917,” 40 University of Toledo Law Review 931 (2009)
“Naming and Blaming: The Case of ‘The Rehnquist Court’,” 37 Reviews in American History 440 (2009)
“The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdictional Reform,” 156 University of Pennsylvania Law Review 1823 (2008)
“Evolving Understandings of American Federalism: Some Shifting Parameters,” (Symposium: From Warren to Rehnquist and Beyond: Federalism as Theory, Doctrine, Practice, and Instrument), 50 New York Law School Law Review 635-698 (2005-2006).
“The Particularly Dubious Case of Hans v. Louisiana: An Essay on Law, Race, History, and “Federal Courts,” 81 North Carolina Law Review 1927–2059 (2003).
“Caseload Burdens and Jurisdictional Limitations: Some Observations from the History of the Federal Courts,” 46 New York Law School Law Review 7–28 (2002–2003).
“On the Complexity of ‘Ideas in America’: Origins and Achievements of the Classical Age of Pragmatism,” (A review of Louis Menand’s “The Metaphysical Club: A Story of Ideas in America”), 27 Law & Social Inquiry 967–999 (2002).
“The New Deal ‘Constitutional Revolution’ as an Historical Problem,” 78 Virginia Quarterly Review 238 (2002)
“Brandeis, Erie, and the New Deal ‘Constitutional Revolution.’” 26 Journal of Supreme Court History 257–278 (2001).
“Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts.” 24 Law & Social Inquiry 679–750 (1999).
“Learned Hand: The Jurisprudential Trajectory of an Old Progressive.” Book Review of Learned Hand: The Man and The Judge, by Gerald Gunther. 43 Buffalo Law Review 873–926 (1995).
“Rethinking Constitutional Change.” 80 Virginia Law Review 277–290 (1994).
“Geography as a Litigation Weapon: Consumers, Forum-Selection Clauses, and the Rehnquist Court.” 40 UCLA Law Review 423–515(1992).
“Social Thought,” 35 American Quarterly 80 (1983)
“The Professionalization of Philosophy,” 7 Reviews in American History 51 (1979)
“Alexander M. Bickel and the Post-Realist Constitution.” 11 Harvard Civil Rights-Civil Liberties Law Review 521–564 (1976)
“Service Intellectuals and the Politics of ‘Science’,” 15 History of Education Quarterly 97 (1975)
“Brandeis and the Democratic Vision,” 1 Reviews in American History 253 (1973)
“American Jurisprudence Between the Wars: Legal Realism and the Crisis of Democratic Theory,” 75 American Historical Review 424 (1969)
“Ideas and Interests: Businessmen and the Interstate Commerce Act,” 54 Journal of American History 561 (1967)
ENCYCLOPEDIA AND DICTIONARY ENTRIES
“Erie v. Tompkins,” The Encyclopedia of American Federalism, ed. Ellis Katz et al. (forthcoming)
“Henry M. Hart, Jr.,” The Yale Biographical Dictionary of American Law, ed. Roger K. Newman (Yale University Press, 2009), 255 – 56.
“Consensus” in A Company to American Thought, ed. Richard Wightman Fox and James T. Kloppenberg (Blackwell, 1995), 140
“Bennett Champ Clark,” Dictionary of American Biography, Supp. Vol. 5 (Charles Scribner’s Sons, 1977) 113.
“Dudley Field Malone,” Dictionary of American Biography, Supp. Vol. 4 (Charles Scribner’s Sons, 1977) 541.
“Martin Conboy,” Dictionary of American Biography, Supp. Vol. 3 (Charles Scribner’s Sons, 1973) 180
Book review of Susanna L. Blumenthal, Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (Harvard University Press, 2016), 35 Law and History Review 267 (2017)
Review of Charles Zelden’s Bush v. Gore: Exposing the Hidden Crisis in American Democracy (January, 2011)
Book Review of Kenneth O’Reilly’s White Collar Radicals: TVA’S Knoxville Fifteen, the New Deal, and the McCarthy Era, 97 Journal of American History 841 (2010)
Book Review of Dalia Mitchell’s Architect of Justice: Felix S. Cohen and the Founding of American Pluralism, 95 Journal of American History 250 (2008)
Book Review of Steven Harmon Wilson’s The Rise of Judicial Management in the U.S. District Court, Southern District of Texas, 23 Law and History Review 481 (2005)
Book Review of John I. Esposito’s Unholy War: Terror in the Name of Islam, 227 New York Law Journal 2 (June 7, 2002)
Book Review of Louis Menand’s The Metaphysical Club: A Story of Ideas in America, H-law, H-New Reviews, April 2002
Book Review of Richard C. Cortner’s Civil Rights and Public Accommodations: the Heart of Atlanta Motel and McClung Cases, 107 The American Historical Review 248–249 (2002)
Book Review of The Supreme Court under Edward Douglass White, 1910–1921, by Walter F. Pratt, Jr. 106 American Historical Review 588–589 (2001)
Book Review of Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution, by Shawn Francis Peter. 224 New York Law Journal 2 (July 28, 2000)
Book Review of Shifting the Blame: Literature, Law, and the Theory of Accidents in Nineteenth-Century America, by Nan Goodman. 220 New York Law Journal 2 (November 3, 1998)
Book Review of The Strange Career of Legal Liberalism, by Laura Kalman. 102 American Historical Review 1264 (1997)
Book Review of Reclaiming the Federal Courts, by Larry W. Yackle. 15 Law and History Review 206–208 (1997)
Book Review of American Legal Realism and Empirical Social Science, by John Henry Schlegel. 83 Journal of American History 254–255 (1996)
Book Review of Justice Oliver Wendell Holmes: Law and the Inner Self, by Edward White. 61 Journal of Southern History 620–623 (1995)
Book Review of The Constitution Besieged, by Howard Gillman. 81 Journal of American History 750–751 (1994)
Book Review of Legal Hermeneutics: History, Theory and Practice, edited by G. Leyh. 79 Journal of American History 1567 (1993)
“The System of Corporate Diversity Litigation: Method and Implications.” 12(1) In Brief 13 (Spring 1993)
Book Review of Earl Warren: A Public Life, by G. Edward White. 70 The Journal of American History 201–202 (1983)
Book Review of Furious Fancies: American Political Thought in the Post-Liberal Era, by Philip Abbott. 68 Journal of American History 443–444 (1981).
Book Review of From the Diaries of Felix Frankfurter, by Joseph P. Lash. 49 New England Quarterly 314–317 (1976).
Book Review of Karl Llewellyn and the Realist Movement, by William Twining. 19 American Journal of Legal History 240 (1975).
Book Review of Roscoe Pound: Philosopher of Law, by David Wigdor. 48 New England Quarterly 298–300 (1974).
Book Review of Constitutional Change: Amendment Politics and Supreme Court Litigation Since 1900, by Clement E. Vose. 17 American Journal of Legal History 393 (1973).
Book Review of The Modern Supreme Court by Robert C. McCloskey. 58 The American Historical Review 180–181 (1973).