Today in Supreme Court History: November 20, 1910

11/20/1910: Justice William Henry Moody retired.

Justice William Henry Moody

Comments

[Dan Schiavetta]

Osborne v. County of Adams, 106 U.S. 181 (decided November 20, 1882): a steam grist mill is not an “internal improvement” under state statute authorizing county to issue bonds for construction; statute deals only with railroads and related structures (not clear why there’s federal court jurisdiction here; the lower court seemed to say there wasn’t, yet decided the merits anyway, 7 F. 441)

O’Neil v. Northern Colorado Irrigation Co., 242 U.S. 20 (decided November 20, 1916): farmer objecting to a water utility plugging up his ditch in accordance with water priority decree in another district (where only district residents could be heard) was barred by four-year statute of limitations from contesting the decree, even though they didn’t come by to plug it up until 30 years later (seems unfair to me)

Gottschalk v. Benson, 409 U.S. 63 (decided November 20, 1972): a program to be used on a computer was not a patentable process because it was merely an abstract “principle”; the program here changed numbers from “binary coded” to “pure binary”, for example changing 53 from 5 then 3 (0101 0011) to 53 all in one bunch (110101)

[Mr. Bumble]

Congratulations on coming out. Will you be able to carry over your "mute" list or do you have to start all over again?

[Dan Schiavetta]

I’ve unmuted everyone, insofar as anyone responding to me. Let’s see how that turns out.

[F.D. Wolf]

The Osborne case was based on diversity jurisdiction, as opposed to federal question jurisdiction. The county was sued for failing to pay an out-of-state bondholder. The county successfully raised the defense of ultra vires, that it had exceeded its legal authority in issuing the bonds, so the bonds were invalid.

If you are wondering why the Supreme Court bothered to take such a case, in the latter half of the 19th century into the early years of the 20th century, the Court heard some 300 cases involving municipalities attempting to repudiate their bonds, generally alleging ultra vires. This was a huge issue at the time. After the Panic of 1873, some 20% of the nation's municipal bonds were in default, the municipalities simply lacking the funds to pay the bondholders. At one point, President Grant actually threatened to send federal troops to collect the funds owed to creditors. Late in his life, the elderly Justice John Marshall Harlan was asked to name his most important opinions. Along with his famous dissents in the Civil Rights Cases, Plessy v. Ferguson, and Lochner v. New York, Harlan listed his opinion for the Court in the now quite obscure case of Presidio County v. Noel-Young Bond & Stock Co., 212 U.S. 58 (1909), in which the Court upheld the validity of bonds the county was trying to repudiate under a theory of ultra vires.

Municipal default has not been much of an issue since the Great Depression, but given the gross financial mismanagement rampant in local government nowadays, it may again become one, and there will be many Supreme Court opinions for parties to cite.

[Commenter_XY]

Interesting = Municipal default has not been much of an issue since the Great Depression, but given the gross financial mismanagement rampant in local government nowadays, it may again become one, and there will be many Supreme Court opinions for parties to cite.

You're probably right about that. Generally speaking, is the Court's answer to a municipality that defaults, "Tough shit. You're on the hook and have to sell assets, raise taxes, to make bond payments'?

[F.D. Wolf]

Yes, I think that is essentially the answer. In perhaps more legal language, the Court would probably hold in most cases that they were estopped from using the defense of ultra vires.

[jdgalt1]

I would have thought the city or county that issued the bonds could reply as a state would: "You've won an award for damages, but the state can only pay you when the legislature appropriates funds for the purpose, and good luck making that happen."

[Mr. Bumble]

Is there qualified immunity for ultra vires actions?

[Noscitur a sociis]

Do you know what that word means?

[Mr. Bumble]

That would be words and I do but forgive the inelegance of the question.
Are there consequences for individuals or bodies that exceed there authority?

[Dan Schiavetta]

I know what Bumble means, and it’s an interesting question.

[Mr. Bumble]

Thank you.
Hopefully I will stay un-muted.

[Dan Schiavetta]

Yes, but as the teacher I’m still moving your desk up next to mine, so that I can keep an eye on you.

[Magister]

captcrisis used to spend class time on movies and just ignored discipline problems like Bumble; Dan runs a much stricter classroom.

[CJColucci]

Not that I ever much cared who was who behind various names, but I gather that Dan is the artist formerly known as captcrisis. Is there a particular reason for the change? Not critical, just curious.

[Dan Schiavetta]

I no longer fear repercussions from bosses or clients if they uncovered some of my comments. (Because I no longer have a boss and I've lost all my big clients.) I was fond of calling myself "captcrisis" (I used to run a crisis center, long ago) but using my real name is liberating.

[John F. Carr]

Municipal bankruptcy has only been allowed since late in the Great Depression. Now the legal problems are much easier to resolve. In the 19th century it was hard to get out of paying bills. In my state creditors of a town could seize privately owned property within the town to satisfy a judgment.

Under modern bankrupty law municipal bonds survive bankruptcy if they are backed by a revenue stream like sewer service payments and are not general obligations.

[F.D. Wolf]

Yes, but what happens when a municipality walks into bankruptcy court and claims certain bonds are void under such-and-such Supreme Court case? These issues were touched upon during the recent Detroit and Puerto Rico bankruptcies, but settlements avoided direct addressing of the questions.

[Commenter_XY]

So wait....municipalities can 'stiff' bondholders for general obligation bonds? Why don't municipalities issue a crap-ton of gen obl bonds in one tranche, and then 'stiff' the bondholders with a strategic bankruptcy?

[CJColucci]

Probably for much the same reason that you or I don't run up a crap-ton of debt and declare bankruptcy.

[John F. Carr]

More or less the same reason you can't take out a ten million dollar unsecured loan, spend and hide the money, and declare bankruptcy. You couldn't get the loan in the first place. You can only get an unsecured loan if you don't need one.

Lenders will decide the heavily indebted municipality is not a good investment. The bonds will have a ZZZ rating and the municipality will not be able to afford the insurance or interest.

[SRG2]

The county successfully raised the defense of ultra vires, that it had exceeded its legal authority in issuing the bonds, so the bonds were invalid.

Famous, nay legendary, English case on the related subject of derivatives contracts: https://en.wikipedia.org/wiki/Hazell_v_Hammersmith_and_Fulham_LBC

[SRG2]

the lower court seemed to say there wasn’t, yet decided the merits anyway,

It seems to me that, often enough it is efficient for a court to decide the merits at first instance even if there's an argument about jurisdiction so that if on appeal the circuit court agrees that there is jurisdiction, there's no need to send the case back down to the district court to hold another hearing to decide on the merits. IANAL but it seems to be the exception rather than the rule.

[Sarcastr0]

An corner of economic activity courtesy of Kevin Drum that was new to me and has some intresting behavior:

Capital productivity is the profit businesses will achieve from its capital spending. It's a BLS statistic.

Even as overall productivity has risen 34% since 1987, capital productivity has declined 15%. In the food and construction sectors it's down more than 50%. In other sectors it's down 30%, and only in IT is it up. That's worldwide, not just US.

Kevin Drum blames it on Capitol glut and the pandemic, which doesn't seem to track the timeline to me. Not scientific, but I offer the possibility that its innovation driven - leapfrogging (as opposed to incremental) R&D is harder - the low hanging fruit was all used up by the mid-80s.

The coda: "Does this matter? There's the rub: I don't know. But no one seems to be very concerned about it, so. . ."
https://jabberwocking.com/raw-data-capital-productivity-in-rich-countries/

[Commenter_XY]

One can make a case that increased financial regulation, several overhauls of accounting standards, alongside technical innovation, as additional factors contributing to diminished capital productivity since 1987.

I don’t see money supply or the pandemic accounting for 37 years of lackluster capital productivity growth.

Let's be honest...it is Kevin Drum.

[Armchair]

It's Kevin Drum. He's got his made up charts with a "reference" to a general site (but not ever the specific data). He's almost certainly got something wrong with his data.

[Sarcastr0]

For fuck’s sake this doesn’t even have any partisan valiance.

You just declare he’s a liar with no support or even tribalist reason.

I thought it was interesting, you're just pissing in cheerios.

[SRG2]

Perhaps as industries become more competitive it's more difficult to make a profit...

[Mr. Bumble]

...or perhaps as regulations become more onerous?

[apedad]

Every industry regulation is onerous since it eats profit.

However, we as a society want planes to fly and land safely 99.999999% of the time.

And we want clean air and water.

And safe cars and roads, etc.

[Mr. Bumble]

You overlooked or ignored "onerous". I am not against regulation but as a simple example, see these requirements in NJ:
To become a cosmetologist-hairstylist you must:

Be at least 17 years of age.
Provide proof of successful completion of high school or its equivalent.
Provide proof of successful completion of 1,200 hours of instruction in cosmetology and hairstyling at an approved school in New Jersey, another state or a foreign country. Training completed in another state or a foreign country must, in the opinion of the Board, be substantially similar to that offered at licensed schools within New Jersey.
Take and pass an examination administered by the Board.

To become a manicurist you must:

Be at least 17 years of age.
Provide proof of successful completion of high school or its equivalent.
Provide proof of successful completion of 300 hours of instruction in manicuring at an approved school in New Jersey, another state or a foreign country. Training completed in another state or foreign country must, in the opinion of the Board, be substantially similar to that offered at licensed schools within New Jersey.
Take and pass an examination administered by the Board.

To become a skin care specialist you must:

Be at least 17 years of age.
Provide proof of successful completion of high school or its equivalent.
Provide proof of successful completion of a 600-hour course of instruction at an approved school in New Jersey, another state or a foreign country. Training completed at a school in another state or foreign country must, in the opinion of the Board, be substantially similar to that offered at licensed schools within New Jersey.
Take and pass an examination administered by the Board.

To become a teacher of cosmetology & hairstyling you must:

Be at least 18 years of age.
Provide proof of the successful completion of high school or its equivalent.
Hold a cosmetologist-hairstylist license issued by the Board.
Provide proof of the successful completion of a teacher training course of 500 hours at an approved school in New Jersey.
Provide proof of successful completion of a 30-hour teaching methods course conducted by a college approved by the State Board of Higher Education or a substantially equivalent course.
Substantiate the completion of six months of employment in a licensed shop within this state.
Take and pass an examination administered by the Board.

[Paladin_44]

I live in New Jersey. These requirements do not seem overly onerous to me. I'd like to be assured that anyone flashing scissors around me has been properly trained to do so, for example.

[David Nieporent]

Properly trained… to use scissors? Are you thinking of kindergarten here?

[Mr. Bumble]

I want to believe that Paladin's comment was sarc.

[David Nieporent]

I admit I can't rule out that possibility; since he's a new poster, I can't get a read on him from one comment. But people do actually defend these sorts of regulations on that basis, so it's not impossible he was sincere.

[Mr. Bumble]

Hardly "new", just infrequent. If he posts at all it is usually only one comment.
Maybe he should delegate comments to Hey Boy and Hey Girl.

[Commenter_XY]

You beat me to it, David. Ditto for nail clippers and a file board.

[Mr. Bumble]

I'm curious as to how many hours law school would equate to?

[Dan Schiavetta]

Johnny Carson’s interview with Fred Rogers can be seen online. Rogers spoke about the fears young children have (such as being sucked down the bathtub drain). One is that the barber will cut their ears and nose off along with their hair. “I brought a barber onto the show so that he could say, ‘That’s why I go to barber school, so I can learn to cut just hair.'”

(Carson was a generous host, who let his guest be the center of attention. As one commenter put it, “What’s so compelling about this interview is how determined Carson is NOT to make fun of Rogers. The audience at first laughs at him, but then gets taken in.” Another good interview that can be seen online is with Billy Graham.)

[Magister]

There's a lot more to any of those professions than just using scissors; for example, I'd like to know that any of them is sterilizing their tools appropriately and otherwise not being superspreaders for skin or scalp diseases or purveying quack remedies. 300 hours looks like a full time semester (e.g., 15 weeks at 18 hours of classroom time per week). It is likely that one hour less would make no difference, and one hour less than that, but at some point you hit the sortes paradox.

[Sarcastr0]

That'd be the case if corporate profits or productivity in general were down.
They very much are not.

This is something more subtle. And possibly purely academic.

[Commenter_XY]

You need a closer look at the data = increased corp profits. It is not as simple as general statement saying, corps have increased profits.

That is true for large (and mega) cap companies over 1B. As a group, big profits. OTOH, micro, small and mid cap companies have had a much rougher time of it; they've been in decline for a while (an early indicator of recession, btw) and have yet to fully recover from the pandemic.

US Large cap = 80% of US market; roughly 25% of employees
US Micro, small, mid cap = 20% of US market; roughly 75% of employees

It makes sense that worker productivity lags, most employees not using the most efficient tech tools in small businesses. Large companies much better at deploying tech to increase efficiency, they have the resources.

[Magister]

This seems like it would be (at least in part) the complementary nature of workers and equipment. Fifty years ago residential trash was collected by a garbage truck driving up and several workers carrying trash cans to it; now there's only a driver and a mechanical arm picks up standard trash bins and dumps them into the truck. More expensive equipment; fewer workers (and perhaps more collected per driver anyway). So capital productivity is down, worker productivity is up.

IT is unsurprising, given that advancing technology has made much more powerful equipment much cheaper, so the same capital investment does more. (And improvements are not just in hardware.)

[Sarcastr0]

Sort of like the complementarity of theorists and experimentalists. Which is also at least partially driven by external events.

It is unsurprising, given that advancing technology has made much more powerful equipment much cheaper, so the same capital investment does more. (And improvements are not just in hardware.)
But isn't the opposite what is observed?

[Magister]

I was speaking of the observation about IT, information technology; your quote just reference "It" rather than IT. Computing equipment costs a fraction of what it did decades ago, except standard workstations and servers are faster and have way more memory, and that's without any improvements from the internet or software.

[Armchair]

This is trash data. I don't know where Drum is pulling these numbers from, or how he's manipulating them.

For example, here's capital productivity for one sector. Capital Productivity for Manufacturing: Computer and Peripheral Equipment Manufacturing (NAICS 3341) in the United States

Since 1987, it's up more than 20-fold

https://fred.stlouisfed.org/series/IPUEN3341C000000000

[Sarcastr0]

"In other sectors it’s down 30%, and only in IT is it up"

Read.

[Armchair]

This is capital productivity for chemical manufacturing.

Essentially flat since 1987 (slight increase).

https://fred.stlouisfed.org/series/IPUEN3251C000000000.

[Sarcastr0]

A subsector, and not one he was tracking.

You're going to have to do more work to show Kevin Drum is a liar.

[Armchair]

This is capital productivity for Beverage Manufacturing. Up more than 10%.

https://fred.stlouisfed.org/series/IPUEN3121C000000000

I don't know where Drum is getting his numbers exactly, or what he's doing to them, but I would be extremely suspicious.

[Sarcastr0]

Beverage Manufacturing?

Cherry pick subsectors harder.

[bernard11]

Are you sure that's the correct definition. The ones I found based the calculation on GDP (or revenue in the case of a firm), not profit.

Nor could I find this on the BLS site, which seems to discuss labor productivity and total factor productivity, but not capital productivity.

[JoeFromtheBronx]

Justice William Henry Moody is another obscure character.

His Oyez.com page notes that:

"He rose to prominence when he prosecuted the alleged ax murderer, Lizzie Borden. Although she was acquitted, his prosecutorial skill was noted by leading Republicans of the day."

Moody was Teddy Roosevelt's attorney general and held various other government positions. Again, he is one of the obscure people who, on paper, seems qualified.

His short SCOTUS tenure was cut short by illness. One of his most important opinions was Twining v. New Jersey, which suggested certain rights found in the Bill of Rights were necessary for due process and would apply to the states.

Long term, this "selective incorporation" approach influenced the due process revolution. Currently, only the Third Amendment (perhaps incorporated by dicta), the Grand Jury Clause, and the Seventh Amendment have not been incorporated.

[SMP0328]

The Third Amendment is incorporated in the Second Circuit and the Excessive Bail Clause of the Eighth Amendment has not been incorporated, but the latter might be simply because the Court hasn't had an opportunity to do so.

[JoeFromtheBronx]

The interesting book on the Bill of Rights co-written by Caroline Kennedy discussed the 3A case. Griswold v. Connecticut cited the 3A as a part of the constitutional right to privacy.

https://booknotes.c-span.org/Watch/17736-1

McDonald v. Chicago said as to the 8th Amendment that only the Excessive Fines Clause was unincorporated. That was addressed in a later case.

It cites Schilb v. Kuebel as to excessive bail. The opinion notes that it was “assumed to have application to the States through the Fourteenth Amendment.”

I will leave it to others to determine how true that is.

[LawTalkingGuy]

I just remember him as the author of Mottley well-pleaded complaint rule. A lot of the day-to-day rules that courts and lawyers use were probably written or inspired by super obscure figures. So here’s a good question: what rules have influence far beyond the notability or fame of the author? This can be from any court at any level (and I’ll include common law courts too) or legislators or academics.

Legal academics know him and law students probably forget the name after graduating but I would say Karl Llewelyn is a decent example. Or any of the principal drafters of the model penal code (whose names I don’t know).

[David Nieporent]

“He rose to prominence when he prosecuted the alleged ax murderer, Lizzie Borden. Although she was acquitted, his prosecutorial skill was noted by leading Republicans of the day.”

How much prosecutorial skill could he have had if she was acquitted? Seems like all he should've had to do was recite the rhyme.

[Syd Henderson]

Wikipedia says he issued 67 opinions and five dissents. Since he was on the court just under four years, that seems like a lot.

He's one of those people who served in all three branches of the Federal government since he was a four-term congressman. The fourth term was cut short by his appointment as Secretary of the Navy. He was also Attorney General. Sounds eminently qualified.

[JoeFromtheBronx]

They had many more opinions then. A person able to write his fair share of opinions was a useful character.

[bernard11]

Are popular, (or unpopular) rhymes generally admissible as evidence? I thought not.

Still, since IANAL I will bow to your superior understanding of the law.

[David Nieporent]

It’s the little known Limerick Codicil to the rules of criminal procedure; despite its name, it applies to all forms of verse.

[Bob from Ohio]

"he is one of the obscure people who, on paper, seems qualified."

What do "obscure" and "qualified" have to do with each other? Most qualified people are obscure 110 years later.

Almost all justices from his era or before are "obscure". As are many from the 20th century. Are you suggesting they were not qualified?

Do you think David Souter or Lewis Powell are going to be remembered in 2080?

[JoeFromtheBronx]

Justice Powell was a swing vote in the Burger Court. He was not a person like Justice Duvall, referenced recently, who is historically seen as a forgotten justice with limited influence.

A person in 2080 who has a general knowledge of the Supreme Court history would likely remember Powell. The general public might not know even influential justices. Ask many people, they might not even know who Holmes or Brandeis were.

Souter had less significance though was on the Supreme Court long enough with some personality that he might be more memorable (again to those with basic knowledge). Still, yes, he very well might be much less remembered in 2080 than others.

[F.D. Wolf]

Moody was a brilliant man who served as Navy Secretary and Attorney General under Roosevelt before being appointed by him to the Supreme Court. Some 18 months into his tenure, he began to suffer from crippling arthritis. A few months after that, he could not lift a pencil. Moody refused to resign because he had not served long enough to qualify for a pension. Eventually, Congress passed a special bill, allowing him to resign at full salary.

Had Moody stayed healthy, I believe he would have been another Holmes.

[Commenter_XY]

Never knew that = arthritis. That is a tough one.

[JoeFromtheBronx]

I think it would turn on his brilliance, legal skill, and whatever qualities it takes to be a good justice.

Multiple justices who had mundane tenures had impressive resumes, serving in many public roles.

Justice Duvall previously was Chief Justice of the Maryland General Court and first U.S. Comptroller of the Treasury.

[The Margrave of Azilia]

I certainly hope Moody could have matched Holmes' way with words without adopting Holmes' Nietzschean positivism.

[JoeFromtheBronx]

A year ago there was an Order List.

https://www.supremecourt.gov/orders/courtorders/112023zor_8m58.pdf

One of the orders granted cert in Erlinger v. U.S..

This was another Armed Career Criminal Act. SCOTUS has taken several such cases in the last few years.

The ruling was 6-3. Justice Jackson wrote a long separate dissent in part questioning the Apprendi ruling.

https://www.oyez.org/cases/2023/23-370

[Krayt]

I’ll probably bring this up in ToT tomorrow, but this is too good to wait. I was listening to CNN on the way in.

Mitch McConnell: The Biden administration has been [dragging ass] on helping Ukraine.

Dude, you thwarted a huge aid package to them, and the Russian state media talking heads responded with, “Thanks, Gramps!” You in particular are the Gramps in that sentence!

[The Margrave of Azilia]

McConnell is still around?