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120 Colum. L. Rev. Forum 1 (2020)

handle is hein.journals/sidbarc120 and id is 1 raw text is: COLUMBIA LAW REVIEW FORUM VOL. 120 JANUARY 13, 2020 PAGES 1-13 THE RIGHT APPROACH TO HARMLESS ERROR Daniel Epps* INTRODUCTION My article Harmless Errors and Substantial Rights challenged conven- tional wisdom about the harmless constitutional error doctrine in crimi- nal procedure. Specifically, I contended that the traditional way of un- derstanding harmless error as a remedial doctrine rooted in so-called constitutional common law2 created significant anomalies. The reme- dial perspective does not explain which errors can properly be treated as harmless, provides no guidance for how harmless error analysis should work in practice, leaves mysterious the relationship between the doctrine and the relevant statutory framework, and creates deep uncertainty about the Supreme Court's power to impose the doctrine of harmless constitu- tional error on state courts.3 Instead, harmless constitutional error doc- trine can only be understood as part of the definition and judicial en- forcement of constitutional rights. A rights-based theory of harmless error helps explain which errors can be treated as harmless, and how harmless error analysis should work in practice; makes sense of the governing stat- utory law; shows why the Supreme Court has the power to require state courts to follow federal harmless error rules; and prevents courts from surreptitiously undermining the value of constitutional rights.4 Few legal scholars have thought as deeply about the mysteries of harmless error as Professor John M. Greabe,' and he is well equipped to give the remedial perspective the best possible defense. I am grateful to * Associate Professor of Law, Washington University in St. Louis. I am grateful to the editors of the Columbia Law Review Forum for helpful comments. 1. Daniel Epps, Harmless Errors and Substantial Rights, 131 Harv. L. Rev. 2117 (2018). 2. For the canonical articulation of this view, see Daniel J. Meltzer, Harmless Error and Constitutional Remedies, 61 U. Chi. L. Rev. 1, 23-34 (1994); see also Richard H. Fal- lon, Jr. & DanielJ. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1771-72 (1991); Craig Goldblatt, Comment, Harmless Error as Consti- tutional Common Law: Congress's Power to Reverse Arizona v Fulminante, 60 U. Chi. L. Rev. 985, 986-87, 1005-12 (1993). 3. See Epps, supra note 1, at 2142-58. 4. See id. at 2164-70. 5. See generally John M. Greabe, The Riddle of Harmless Error Revisited, 54 Hous. L. Rev. 59 (2016) [hereinafter Greabe, Revisited] (assessing the Supreme Court's unnec- essarily complicated application of harmless error analysis and arguing for a simplified harmless error test). 1

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