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John C.P. Goldberg, Judging Reputation: Realism and Common Law in Justice White's Defamation Jurisprudence, 74 U. Colo. L. Rev. 1471 (2003).

Abstract: In 1964, Justice Byron White joined the majority opinion in New York Times v. Sullivan. Yet, within ten years, he was angrily dissenting from post-Sullivan decisions, and within twenty years he was advocating the adoption of an entirely different approach to setting constitutional limitations on defamation liability. Standard analyses suggest that this record reveals both inconsistency and growing conservatism. I maintain instead that White held to a consistently narrow reading of Sullivan, one which recognized a "conditional privilege" to injure certain persons by means of false statements innocently or carelessly published. By contrast, the shifting coalitions of Justices who formed the majorities in post-Sullivan decisions were, for various reasons, being slowly pulled toward the idea that Sullivan had implicitly held that government altogether lacks the power to attach liability to the publication of statements on matters of public concern, even when they are published for the purpose of injuring another. In the course of establishing these claims about Justice White's defamation jurisprudence, this comment also seeks to demonstrate a broader point, namely, that Justice White has been mislabeled by critics and admirers as a "quintessential" New Deal Liberal. The dominant strain of New Deal Liberalism was Benthamite in spirit. It embraced legislation and regulation - public law - as the superior, progressive alternative to hidebound common law. Justice White is an interesting figure in the intellectual history of Twentieth-Century law in part because he was one of the rare New Dealers who appreciated the importance of common law. In his view, the Court's abandonment of Lochner-ism and the idea of law as a brooding omnipresence simply did not entail a rejection of the common law as an important means for vindicating individual rights. Thus, his concern that the Court not expand Sullivan turns out to have been motivated by an unfashionable yet coherent conception of our constitutional system in which the private law of tort, property and contract has an important role to play even after the rise of the administrative state.