Washington Law Review

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Dun & Bradstreet v. Greenmoss Builders as an Example of Justice Powell’s Approach to Constitutional Jurisprudence

March 01, 2013 | 88 Wash. L. Rev. 143

It is striking to read the detailed account of the Supreme Court’s wrestling with Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. over a two-year period that came just a few years after I had the honor of clerking for Justice Lewis F. Powell, Jr. The unpacking of this story by Lee Levine and Steven Wermiel is invaluable because it so well illustrates the ways in which three important Justices did their jobs in the 1970s and 1980s. We see Justice Brennan working strategically to reinforce and extend his earlier opinion in New York Times Co. v. Sullivan, seeking ways to cobble together five votes from a Court that is far different from the Warren Court he once knew. We see Justice White, mercurial and idiosyncratic—first voting with Justice Brennan, then flirting with joining Justice Powell in narrowing the scope of Gertz v. Robert Welch, Inc., and ultimately filing a concurrence in the judgment calling for both Sullivan and Gertz to be overruled. And we see Justice Powell, the classic moderate centrist, seeking to adjust the constitutional rules so as to give what he considered sufficient respect to competing values—here, the competing values of protecting freedom of speech and preserving the States’ ability to use defamation law to protect reputations. Given this welcome opportunity to comment on the Levine and Wermiel account, I thought I would use it to offer some thoughts about Justice Powell’s approach to constitutional jurisprudence, particularly in First Amendment cases—an approach well illustrated by the story of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

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