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

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            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).


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