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 (overruled by Benton v. Maryland, 1969)
Johnson v. United States, 333 U.S. 10 (decided February 2, 1948): Officer 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 life insurance policies 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 fiancée 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, who wrote to his fiancée often, 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 with a seventh trial the remaining insurers settled with each other.
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.
Right now there’s a case pending at SCOTUS on whether the Seventh Amendment applies to administrative agency determinations.
I think about this issue a lot because while I actually think the corporations have a point about the Seventh Amendment (can you really just turn off the Seventh Amendment protection by reposing the issue in an administrative agency?), at the same time I would say “be careful what you wish for”– if they won the right to jury trials they might not like the results so well compared to the agencies.
It’s a more far-reaching case than that.
The issue is whether the agency can make determinations at all — as opposed to everything happening in federal court, in front of a judge who almost certainly will not know the subject matter as well as the agency’s ALJ, and at trial in front of a jury even less well informed.
But a judge and a jury that aren’t the agency being the judge in its own case.
Does this mean that a federal court can’t hear criminal cases brought by federal prosecutors?
Well, in the case of a federal court you’ve at least got an Article 3 judge.
Right, but I think the Seventh Amendment means something.
I.e., how far would you take this? What if the government tried to take all products liability cases away from juries, on the grounds that ALJ’s or CPSC regulators are experts and would do a better job determining whether a product design was unsafe?
I mean, in some sense that is right! The regulators really DO know more, and product design is a specialized issue. And yet, I suspect if the government tried it, SCOTUS would rule 9-0 that they couldn’t do it. (When Breyer was on the Court, it would have been 8-1.)
The Seventh Amendment creates a preference for jury adjudication. I understand the arguments for the administrative state (and as I said, I suspect the corporate litigants may even miss the administrative state if they succeed in forcing jury trials in these cases!), but nonetheless, the Constitution says we get juries and I think we have to follow it.
I don’t think the Seventh Amendment means anything.
There has never been a functional explanation given for it, or for the mostly artificial distinction between “law” and “equity”. Which is why for 7A jurisprudence we keep going back to 1791 and doing sterile historical analysis. Tell me — why should a jury be necessary for breach of contract but not for unjust enrichment? It seems that a jury would be better suited to ascertain fairness (the main issue in an unjust enrichment case, or indeed in any equity claim) than get into the linguistic and trade-specific technicalities needed for a breach of contract case. As someone put it, there is no substance to the 7A.
Here I am going to sound like Brett, but that’s basically saying “this is inconvenient and stupid, read it out of the Constitution”. But it’s there and it refers to the common law tradition (and law/equity is mentioned in Article III too, so there’s no doubt the framers bought into that).
If you really just don’t think there should be a Seventh Amendment, you have to amend the Constitution and take it out. But it’s there and we have to make something of it even if you think the whole thing nonsensical. And the sense I think we should make of it is that if a litigant wants a jury trial in a civil case of the sort that would have gotten a jury trial in Merry Olde England, then you have to give it to them. That doesn’t destroy the administrative agencies, who can still make rules and even hear cases in equity or when the parties consent to administrative adjudication. But the Seventh Amendment is in the Constitution and we are not at liberty to ignore it.
No, we can’t read it out of the Constitution, but that shouldn’t keep us from saying that it’s stupid and outdated. (My article was called “The Seventh Amendment Is Senile and Doomed”.)
How did the cops know what opium smelled like? Did they ask Dorothy?
Either:
1. They do controlled burns where the agents sniff the substance (and then tell stupid jokes about much they have the munchies afterwards) or,
2. Veteran agents get to the know the odor through experience.
As to marijuana, 50 years ago they had tablets that did not contain any psychoactive substances but were supposed to smell like it.
We have artificial flavors — throw enough Federal money around and I’m sure some intrepid chemist could fabricate something that smelled like Opium burning. Now how safe it was to breathe whatever it actually was may have been another issue.
30 years ago, no one told cops not to put their (then quite expensive) always-on hand-held radar units in their laps and now we have lots of cops with Prostate cancer…
“30 years ago, no one told cops not to put their (then quite expensive) always-on hand-held radar units in their laps and now we have lots of cops with Prostate cancer…”
False.
It is at least half true. Connecticut police blamed their cancer on radar guns. In response the legislature banned use of handheld radar guns for speed enforcement. I don’t know if cause and effect was proved.
https://www.cga.ct.gov/ps92/Act/pa/1992PA-00141-R00HB-05070-PA.htm
…and talcum powder causes ovarian cancer.
Talc — or Asbestos? The issue I heard was that the two occur quite close to each other naturally and that talc was being contaminated with asbestos.
And because Connecticut was a state that banned radar detectors at the time, so there was no incentive for departments to go to trigger units that only transmitted when the trigger was pulled.
I personally knew a cop who died this way — nice guy. He and his chief attributed it to this, but who knows….
In my review of “The Wizard of Oz” (posted here on 9/28/23) I pointed out that audiences in 1939 were more familiar with what poppies do. The Hays Code got stricter and later audiences (like my generation) were puzzled by the reference.
My grandmother had Opium poppies in her flower garden — they really are quite pretty when they blossom — and like all scrap greenery and grass clippings, she fed them to the hens who got quite “interesting” after ingesting them.
This was rural Maine in the 1940s — no one knew what they were.
And I believe you had to cut the seed pod and let the sap accumulate to have enough to affect a human — merely smelling them wouldn’t do anything.
That’s why they had to be magical poppies, remember.
Dang, I could really go for some poppy seed rolls now.
Eastern European Kolachi. Poppy seed and raisin filled rolls.
https://buttermaidbakery.com/products/nut-roll-poppy-seed-raisin?pr_prod_strat=e5_desc&pr_rec_id=6e26087c4&pr_rec_pid=4538439008394&pr_ref_pid=4538439401610&pr_seq=uniform
Would the SC have more credibility if the justices wore powdered wigs and colorful robes? Asking for a friend.
And would they then have to recuse themselves on any case that touched on transvestites?
He was great in Star Wars. Imagine working so far up the Empire’s bureaucracy that he got to be Darth Vader’s supervisor.
He was pretty good in Dracula, too.
“Imagine working so far up the Empire’s bureaucracy that he got to be Darth Vader’s supervisor.”
Still got blowt up though since he refused to believe that the Death Star was in danger from a Rebel starfighter attack, and therefore refused to evacuate.
In defense of him getting blowed up, at least he didn’t abandon his post while lower-ranking people were killed.
“Darth Vader’s supervisor”
Like Luke and Leia being siblings[and their father being Vader!], Darth Vader as #2 in the empire was a later Lucas retro-fit. His character was the break out star so his importance was increased.
Retro-fit? Vader got to be the new #2 the same way as anyone else: The old #2 died.
Deja vu. Apparently Josh Blackman likes that picture so much that Justice Cushing appears twice per year in Today in Supreme Court History (Cushing’s death on September 13th).
I assume the pictures of justices he uses are the official Supreme Court portraits, and I seem to recall a few justices making multiple opinions throughout the year in this post.
So serious! People might start thinking F.D. stands for Fuddy Duddy. 😀
None of the dissenters wrote an opinion, though I suppose we must consider them separate dissents, as we can only guess as to the nature of each justice’s objection.
The noting of dissent (or concurrence) without opinion has always been relatively uncommon, and has virtually disappeared since the Rehnquist Court, but this is the only case in which I recall four justices doing so. I suppose the most famous dissent without opinion would be Justice Pierce Butler’s in Buck v. Bell. This is usually attributed to his Catholic faith, but ultimately, this too is just a guess.