Washington Law Review

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Dun & Bradstreet Revisited - A Comment on Levine and Wermiel

March 01, 2013 | 88 Wash. L. Rev. 103

Lee Levine and Stephen Wermiel’s account of the internal history of the Supreme Court’s decision in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. convincingly demonstrates the utility of the papers of retired Justices in facilitating a painstaking reconstruction of the Court’s deliberations. As someone who clerked for Justice Byron White in the October 1984 and 1985 Terms and was thus present during the second of the two years in which the Court considered Dun & Bradstreet, I will not comment on the accuracy of the particular details the Article reports or add any inside information about the Court’s deliberations. That would be both improper and impossible. Improper because a law clerk has a duty of confidentiality both toward his or her Justice and toward the Court as an institution; and impossible because, not having worked on the case myself, I have only fuzzy recollections concerning the many twists and turns the Article describes, and certainly none that match the wealth of detail the authors have gleaned from the documentary record. I will, however, try to situate the case within the broader context of the issues before the Court during the 1984 Term, which may give the reader a more accurate perspective from which to judge whether the story of Dun & Bradstreet is that of a doctrinal perfect storm or a tempest in a teapot—or, perhaps more likely, something in between. I will also comment on the usefulness of the sources relied on by the authors in creating an accurate picture of the Court’s workings. Finally, I will offer some brief observations on the issues in Dun & Bradstreet, the problems it posed for the Court, and the decision’s place in the evolution of the Court’s First Amendment libel jurisprudence.

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