The Volokh Conspiracy
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Today in Supreme Court History: February 2, 1790
2/2/1790: Justice William Cushing takes oath.
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Dartmouth College v. Woodward, 17 U.S. 518 (decided February 2, 1819): state attempt to change existing charter of college to turn it into a public institution violated Contracts Clause; corporate entities are entitled to Clause protection
Ross v. Bernhard, 396 U.S. 531 (decided February 2, 1970): I did my law review article on the Seventh Amendment, which guarantees the right to a jury trial in a civil case in actions at law (but not equity). Stupidly, one has to look at what the law vs. equity distinction was in 1791 (when the Bill of Rights went into effect) to see whether there is a right to a jury trial today. Here, the Court says a stockholder’s derivative suit (traditionally equity) is an action at law because its allegation of waste by the directors would be an action at law if brought by the corporation itself against the directors. (?) Footnote 4, adding to the analysis “the practical abilities and limitations of juries”, hasn’t gotten any traction; courts continue to allow juries to hear complicated “actions at law” they don’t understand. (Talking to jurors after verdict in cases I’ve tried, I see that sometimes they don’t even understand simple cases, and fixate on irrelevant trivia.)
Brock v. North Carolina, 344 U.S. 424 (decided February 2, 1953): after mistrial because of refusal of two (prosecution) witnesses to testify, second trial on same offense did not violate Double Jeopardy (overrruled by Benton v. Maryland, 1969)
Johnson v. United States, 333 U.S. 10 (decided February 2, 1948): smelled opium smoke, knocked, she opened the door, and they arrested her. The Court holds that a warrant (which they point out would have been granted) was required. (There’s a “plain view” doctrine, but apparently no “plain smell” doctrine.)
Louisiana v. Mississippi, 282 U.S. 458 (decided February 2, 1931): original jurisdiction case dealing with the Mississippi River changing course over the years; once again we learn that “accretion” (gradual erosion or addition) can change a boundary, but “avulsion” (land looped by river which then gets cut off from the mainland) does not. I learned another word, “chute”, which is the new stream that cuts off the loop and straightens the course of the river, eventually becoming the main course.
Connecticut Mutual Life Ins. Co. v. Hillmon, 188 U.S. 208 (decided February 2, 1903): the last gasp of this famous case which dragged on for 24 years, where here the Court sends the case back for a seventh trial, vacating a verdict for Sallie Hillmon based on an improperly introduced affidavit. She had tried to collect on a life insurance policy, by proving that her husband had died by accidental gunshot at Crooked Creek, Kansas in 1879. Was the deceased John Hillmon or one Fred Walters? The earlier Court decision, from 1892, established the hearsay exception for future intention (admitting into evidence a letter written at Wichita from Walters to his financeé stating that he intended to go to Colorado with his new buddy Hillmon; this might show that it was really Walters who was shot because Crooked Creek was along the way and Walters was never heard from again). My Evidence professor did his usual excellent job recounting this story, ending with, “To this day, nobody knows who was shot at Crooked Creek”, but Wikipedia reports on a 2006 exhumation which concluded that it probably was indeed Hillmon. Anyway, Sallie was paid off before this 1903 decision and instead of going through a seventh trial the remaining insurers settled with each other.
Talking to jurors after verdict in cases I’ve tried, I see that sometimes they don’t even understand simple cases, and fixate on irrelevant trivia.
The Seventh Amendment requires juries though.
I am a bigger fan of juries than you are. My experience is that they tend to have really good BS detectors, and decent moral compasses. But even if you are right, it seems to me you need to repeal the Seventh Amendment rather than just have the courts decide that cases are “too complex for juries”. Good lawyering can explain complex things to laymen.
The 7th Amendment refers to cases at law. His legal argument is that “at law” has been interpreted too expansively, and cases that (he thinks) are really equity cases have been interpreted as cases at law requiring juries. He thinks corporate dervative actions should be classified as being equity cases, not law cases. He also argues a footnote in the original Supreme Court case ruling such cases are at law, which suggested that cases deemed too complex for a jury should be tried by judges, should be ignored.
That’s not my argument, but the argument of Stewart (joined by Burger and Harlan) in dissent: law is law and equity is equity, and we should not be finding ways to put our thumbs on the scale so that there’s a jury trial right if at all possible.
Dilan:
That’s true, good lawyering can explain complex things. And a jury can sort out BS. But there’s not a lot of BS that goes on in a trial. A smart lawyer is not going to present something that will be easily shot down on cross-examination.
The Seventh Amendment is the only Amendment in the Bill of Rights that hasn’t been incorporated via the Fourteenth Amendment. States don’t have to have juries in civil cases. Our system just doesn’t think it’s that important. And it’s silly to look into 18th century practice (or before) to determine “law” vs. “equity”. Why, for example, should breach of contract (law) be heard by a jury but restitution (equity) not? My research revealed that the distinction had more to do with turf wars between the different court systems, rather than anything qualitative.
BTW, my law review started the practice of replacing “he” with “she” as the default pronoun. It was o.k. because our Editor in Chief didn’t make an attitude about it, but it was funny when I referred to 15th-century English Chancellors as “she”. I don’t think they even let women into the room, let alone on the bench.
The Seventh Amendment is the only Amendment in the Bill of Rights that hasn’t been incorporated via the Fourteenth Amendment.
Also, the Third Amendment outside of the Second Circuit.
The other circuits might have ruled the same way as the Second Circuit did in Engblom, if faced with the same (very unusual) facts.
Google translator’s guesses at gender strike me as worse than random and worse than always using “he”. It offers “he” and “she” alternatives when the context makes the gender obvious and fails to offer me the choice in ambiguous contexts.
When I was in school one was supposed to be egalitarian by mixing “he” and “she”, not anti-establishment by using “she”.
There’s no good solution. The present fad of using “they”, “them” and “their” just adds to the confusion.
How good are generalist judges at figuring out complex cases, especially with a caseload much larger than that of a jury?
Has the jury selection process, as done nowadays, weeded out many of the intelligent jurors?
While judges can appoint their own experts to inform themselves and/or the jury, I’m not sure how often judges exercise that power. But that rule is an acknowledgement that sometimes outside, neutral advice may be helpful for judges as well as jurors.
Here’s some good news (if true): “While experience indicates that actual appointment is a relatively infrequent occurrence, the assumption may be made that the availability of the procedure in itself decreases the need for resorting to it. The ever-present possibility that the judge may appoint an expert in a given case must inevitably exert a sobering effect on the expert witness of a party and upon the person utilizing his services.”
https://www.law.cornell.edu/rules/fre/rule_706
I’m not aware that a judge can appoint his own expert. I don’t think he can (at least) in New York courts.
Good questions.
Can in matrimonial actions. Not sure about otherwise. I stay out of state court in NY like Donald Trump’s lawyers stay out of ethics classes.
Federal judges can do it. But as the note I quoted says, the very prospect that they might do so induces the parties to put forward better experts, making court-appointed experts far less necessary. Or so it says. I mean, they’re the experts on experts.
The Seventh Amendment has, in fact, been incorrectly not incorporated, just as several other rights haven’t been, though the trend (as we have seen with unanimous criminal juries and the right to keep and bear arms) is towards incorporation.
But it still applies in federal courts, and while I have no problem with saying it doesn’t apply to a traditionally equitable remedy (such as an injunction or constructive trust), I have a gigantic problem with denying a party their constitutional right to trial by jury because a case is complex. That’s just an outrageous disobedience of constitutional text.
Some years ago someone (not me) wrote a law review article called, “Is There Substance to the Seventh Amendment”? Before I wrote mine I went to my Con Law professor and he said there’s been no attempt at a “functional” analysis — in other words, no one has asked, “Why is this Amendment important?”
One can guess that there was a fear in 1791 that federal courts might be a refuge for diversity plaintiffs who don’t want to submit their case to a jury (where in state court they would have to). Or who don’t want a verdict to be properly appealed (that’s the other part of the Amendment – – the reexamination clause). But these are just guesses. I don’t think there’s any evidence for it. At the time few had given much thought to what a federal court system would be like (as they found out with Chisholm v. Georgia, which should not have been a surprise given that the holding followed the plain Constitutional text).
In the cases I’ve tried, or gotten ready for trial, sometimes I’ve wanted a jury trial, and sometimes not. In one case, a fee dispute, we’re headed for trial and I don’t want a jury.
Incorporation of the many rights listed in the Bill of Rights has always been a case-by-case analysis. Frankfurter made fun of this as “the slot-machine theory — some are in and some are out”. As you point out there are (a few) other rights not yet incorporated. I think it should be case-by-case because some rights are simply not as important as others and there’s the risk of disrupting state practice if some are incorporated (for example, the Fifth Amendment’s requirement of a grand jury).
There’s an extensive tradition of jury adjudication in civil cases. One of the best examples of this is the negligence standard. While we all learn the Hand Formula in law school, the heart of negligence adjudication is the jury applying the standards of the community to determine what is and isn’t reasonable. Judges just aren’t competent to do that– they tend to have more elite backgrounds, and lack the wisdom of crowds, instead inserting their own prejudices.
There’s no reason to view the Seventh Amendment as anything other than the framers’ correct judgment that jury adjudication was a fundamental right in common law cases. The fact the Supreme Court later decided it wasn’t important just shows the intellectual poverty of the institution and its over-trust in judges- after all, until recently, they didn’t think unanimous juries were important in criminal cases or that juries needed to adjudicate death penatly cases.
“there’s not a lot of BS that goes on in a trial.”
I guess I’ll have to take your expert opinion on this.
I didn’t think it was true before I became a lawyer, but it’s true. At least in my area of practice.
The popular conception of B.S. is possibly based either on TV shows or highly-publicized trials — where a lot of B.S. does go on, and it’s because the lawyering in those cases is frankly often not good, and a lot of posturing goes on for public consumption.
I’ve done a lot more appeals than trials, but witnesses have lied in literally every trial I have been a part of.
The plain smell doctrine applies to motor vehicles.
After voters decriminalized marijuana the Supreme Judicial Court of Massachusetts decided that the smell of marijuana was no longer grounds to search a car. Not burnt marijuana. Not unburnt marijuana. Not even a strong smell, they wrote knowing that “strong” is subjective and not falsifiable.
Thanks!
Dartmouth College is a biggie, seems a lot more noteworthy than “Cushing takes the oath.”
I I Got You, Babe
And then he had to relive the day over and over until he learned that being a Supreme Court Justice isn’t what life is all about, but rather, true love and kindness.
As did Hillman.
They had red, white, and blue robes back then?
John Jay has a similar robe in his portrait, so maybe so.
Had to do the portrait in profile to make you get that nose in its full splendor.
When did they stop wearing wigs?