A Progressive Creed: The Experimental Federalism of Justice Brandeis

As Alexander Bickel predicted in 1970, the doctrine of experimental federalism espoused by Justice Brandeis in New Slate Ice Co. v. Leibmann is exhibiting new vigor throughout the American legal community. Citations to this famous dissent are no longer confined to U.S. Supreme Court dissents, as they were during the Warren Court era. Instead, they have emerged in Burger Court majority opinions, as well as in concurrences and dissents. Further, Brandeisian localism has been brought to the attention of a growing number of lower federal and state appellate courts. Growing judicial interest has been mirrored by an increasing scholarly attention to the still exciting idea . that states are laboratories for experimentation