High Court of Chancery

[David Merrill]

You give him [the judge] the case law (precedence) in which to hang his hat upon and he shall have to rule accordingly.

My side of the conversation was spurred by this comment in particular. Please forgive my gisting without clarification. I have a way of responding to only one point in a post without detailing my thought process. My thought process in other words thought that all you were talking about was that one sentence, being that I have read the actual case (attached).

I suppose this point is often missed about Erie because it is at the very bottom in the concurring (in part) opinion of Justice REED.

In this Court, stare decisis, in statutory construction, is a useful rule, not an inexorable command.

Now bear with me please. I feel that I may finally be able to coalesce this trust structure into a portrait that most or all reading this post may be able to grasp. First a quick dip in the Admiralty from Proctor WISWALL's 1994 comparative lecture on British, American and Australian admiralty rules he made for Ebsworth and Ebsworth. Look on Page 18 of the Secret Admiralty paper linked; quoting WISWALL:

The delay may seem strange, especially in light of the quite rapid effects of the 1938 merger of the Equity Rules into the first Federal Rules of Civil Procedure. But the late depression era was one of great social activism on the part of the Federal government, and this faded seamlessly into wartime legislation which appropriated control of private property. The District Courts under the new FRCP were quickly forced by the volume of litigation into the wholesale application of equitable remedies in actions "at law".

The 1938 merger of law and equity rules left no loose ends; the procedure is entirely uniform regardless of the nature of the remedy prayed, though of course issuance of an injunction requires at least an ex parte hearing in chambers. The 1966 merger, however, leaves six special Supplemental Admiralty Rules...

You, being familiar with Erie will spot immediately that the author and WISWALL are both speaking about that same 1938 case. Next though get a look inside the Constitution (1984) with Annotations (the big green one). While looking here though, you should try understanding my perspective as the 'saving to suitors' clause is the namesake of "my" website and the source of Diversity of Citizenship too. The Diversity, being redacted in its simplest form between those who endorse private credit from the Fed and those who redeem lawful money instead:

Now that it is said and done go back to the top of this post and review what you said and how it is contradictory to what Justice REED said of Erie.

You give him [the judge] the case law (precedence) in which to hang his hat upon and he shall have to rule accordingly.

In this Court, stare decisis, in statutory construction, is a useful rule, not an inexorable command.

You are correct Shikamaru. The only way that both of you can be correct is that the common law, compiled case law opinions are faulty - specifically between 1842 and 1938, when like I said - it was reset. Erie effectively reset the common law.





P.S. I think it was Charles WEISMAN who kept getting beat up in court on Constitutional and other logical arguments when a judge took pity and pulled him aside in the hallway. The judge explained how no case law was binding if it happened before 1938. Do you get my point now?