Today in Supreme Court History: December 16, 1936

12/16/1936: West Coast Hotel v. Parrish argued.

Comments

[Dan Schiavetta]

Greene v. Georgia, 519 U.S. 145 (decided December 16, 1996): state Supreme Court on direct appeal does not have to defer to trial judge’s findings as to juror bias (trial judge had excused for cause jurors who had reservations about the death penalty); such deference (set forth in Wainwright v. Witt, 1985) applies only in habeas proceedings (where at issue is matter outside the record — questions which should have been asked, things that should have been done, evidence which should have been introduced, etc.)

Heimeshoff v. Hartford Life & Acc. Ins. Co., 571 U.S. 99 (decided December 16, 2013): suit on disability benefits plan is time-barred by plan’s own limitations period even though administrative remedies not yet exhausted (ERISA is silent on the issue)

Robertson v. Gerdan, 132 U.S. 454 (decided December 16, 1889): Ivory pieces to be attached to piano keys are subject to “ivory” tariff instead of “musical instrument” tariff. Note: This issue is now inconsequential due to the near-prohibition on ivory in an effort to protect elephant herds. I represented an instrument dealer in getting some vintage items exported. The regulatory scheme is perverse. First, ivory used in musical instruments is solely decorative (e.g., tips of violin bows), and the only instruments with it are vintage instruments for which no elephants have been shot in decades (nowadays plastic is used). The real culprits are dealers selling big items made from entire tusks, whereas ten thousand bow tips would be needed to result in the ruination of one tusk. Secondly, only certain types of ivory are prohibited. Not (for example) wart hog ivory or mammoth/mastodon ivory (!). The type of ivory is supposed to be determined by examining chevron patterns with a special microscope, but customs officials just seize anything they think looks like ivory. Orchestras have had international tours canceled because the bows of the string section were confiscated at the airport. (My client gave me a old bass bow, for free; it has an ivory screwpiece and is therefore unsellable. I am a basisst and it’s a very good bow, but it would be just as good with a plastic screwpiece.)

[SRG2]

Re: Robertson

A while back I hit on the idea of a market-based approach to ivory banning. Make it legal to counterfeit it and to defraud buyers, and disallow all suits for misrepresentation, etc. You might think that some firms would then set up services to authenticate ivory. but those firms themselves could legally lie to clients. The market for ivory would collapse overnight.

[SRG2]

Re: Greene

If I were on a jury pool for a case with a potential DP, I would state that while I am personally opposed to the DP, I am well aware of research showing that pro-DP jurors are more inclined to convict and more biased against the accused, and hence in order to be seated as an unbiased juror, I would override my personal views and reach a conclusion on the basis of the facts presented and the legal standard required.

I

[The Margrave of Azilia]

I'd say I'm unbiased as to guilt (assuming that to be true) and that it's too early to talk about the death penalty for someone who hasn't even been convicted. Plus not have alternate, death-qualified jurors to replace me *if* the verdict is guilty?

Dismissed!

[The Margrave of Azilia]

The alternate jurors could be given a catchy name like vulture-jurors.

[SomeGuy 2]

I'd be very interested in the "research" that purports to show that pro-DP people are biased against the accused. They might be more inclined to convict, but without a crystal ball to know what 'really' happened, it's impossible to determine whether pro-DP people are convicting innocents or whether anti-DP people are letting guilty people off the hook.

Death Penalty-qualifying a jury is just a specific case of the general principle that both sides in a trial are entitled to a jury that will apply the law. If it's a spousal rape case and you don't believe spousal rape is a crime, then you won't be on that jury either.

[SRG2]

https://psycnet.apa.org/record/1984-14900-001
https://capitalpunishmentincontext.org/resources/deathqualification

In the early 1980’s, researchers Robert Fitzgerald and Phoebe Ellsworth found that death qualified jurors are not representative of the general population. Capital juries tend to be less representative with respect to gender and race because women and African Americans are more opposed to the death penalty than white men. The exact magnitude of this effect depends upon the general level of public support for the death penalty. Fitzgerald and Ellsworth found that about 15% of whites were excluded compared to 25% of blacks.

Fitzgerald and Ellsworth also found that the jury in capital trials is more biased towards the prosecution and a guilty verdict as compared to the juries in robbery trials or non-capital murder trials. There is evidence that death qualification biases the jury in two different ways. First, it tends to select jury members who are “conviction prone.” Second, the very process of death qualification may further bias the jurors.

[SomeGuy 2]

That doesn't really answer the objection. It's possible people who aren't DP qualified are too lenient and hand out acquittals when the state made its case.

[Dan Schiavetta]

Srg2 pointed out that DP qualified jurors tend to be more white and male. That’s an Equal Protection violation.

[SomeGuy 2]

It is if they're chosen for their whiteness and maleness. If it just happens to be the case that white males are more likely to be willing to apply the law, then that's how the cookie crumbles. What are they supposed to do, put together a jury with the right melanin and genitals instead of one that will apply the law?

[SomeGuy 2]

You'd think we could at least use ivory from elephants who died of natural causes.

[Michael P]

How would you know that? Even if you could, there's still an incentive to have dead elephants, and people rarely work on the time scale that would repay an approach of "help elephants survive and reproduce so we get more dead elephants decades from now".

[SomeGuy 2]

Elephants die of natural causes in zoos or in the wild. For zookeepers, we're kind of going to have to take their word for it.
For just finding elephants that died in the wild, have everything recorded while harvesting so there's no doubt. Much like a VIN is put in dozens of different places in a car, implant a unique QR code on multiple spots on the final ivory products so it can be traced back to which elephant it was taken from. Most of these problems seem pretty solvable and it's wasteful to just let perfectly good ivory rot. We could be doing all sort of cool stuff with that ivory.

[Syd Henderson]

Narwhal ivory may be restricted to Inuit now. Narwhals are not endangered but it would be nice to keep it that way.

[Michael P]

QR codes can be copied, abraded, etc. Short of some science-fictiony radiographic doping technique, it seems challenging to make a strongly forgery-resistant tracking mechanism.

[Brett Bellmore]

"Secondly, only certain types of ivory are prohibited. Not (for example) wart hog ivory or mammoth/mastodon ivory (!)."

Given the supposed aim of the ban, exempting ivory from already extinct species, or species under no threat of extinction, makes perfect sense.

[Dan Schiavetta]

Yes, you’re right but . . . Still seems odd to protect something that is not reproducing well, as opposed to something that is not reproducing at all and will with no regulation disappear entirely.

[Nameless But Highly Opinionated]

Ding! Dong! Lochner's dead! Rub your eyes, get out of bed!
Ding! Dong wicked Lochner's dead!

[Paladin_44]

Some background info here: https://www.fws.gov/sites/default/files/documents/What%20Can%20I%20Do%20With%20My%20Ivory_%20%281%29.pdf

[Dan Schiavetta]

As I recall we had to deal with the various CITES classes. It wasn’t really lawyer work, it was just having the patience to deal with layers of bureaucrats most of whom were directing me to each other, and redoing and rereredoing paperwork. My client didn’t have the patience for it which is why he hired me.

We ended up checking the cargo in at JFK airport at 5 a.m. with a single Customs officer. There was nobody else in sight. It felt like we were smuggling, after all the legal hoops we had to jump through.