Little-Known Weird Legal Fact Leads to Glitch in Court of Appeals Opinion:

The glitch is at the start of this paragraph from Merrill Lynch, Pierce, Fenner & Smith v. ENC Corp., handed down May 4 by the Ninth Circuit:

The phrase "equity and good conscience" in our judicial usage is coterminous with the first opinions of the United States Supreme Court. See Hollingsworth v. Ogle, 1 U.S. 257 (1788). Undoubtedly in its earlier usage, equity brought to mind a fairness sought by the chancery courts that transcended statutory law and "good conscience" referred to an interior moral arbiter regarded as the voice of God. As the phrase has become domesticated and invoked in modern times, see, Montana v. Crow Tribe of Indians, 523 U.S. 696, 707 (1998), the distinction of its two elements has blurred, and it has a secular rather than religious cast. Still, its unique appearance in Rule 19 of the Federal Rules of Civil Procedure emphasizes the flexibility that a judge may find necessary in order to achieve fairness and the moral weighing that should attend the judge's choice of solutions, a choice to be marked by "mercy and practicality." Hecht v. Bowles, 321 U.S. 321, 329 (1944).

Some careful readers might notice that the Hollingsworth cite gives a year of 1788, and conclude that this is an error, since the U.S. Constitution didn't go into effect until 1789 and the U.S. Supreme Court didn't sit until 1790.

But Hollingsworth is indeed a case from the April 1788 Term -- it's just not a case from the April 1788 Term of the United States Supreme Court. Volume 1 of U.S. Reports is occupied entirely by cases from Pennsylvania; Hollingsworth is a Pennsylvania Supreme Court case, as the printed volume and LEXIS report (though WESTLAW erroneously calls it a United States Supreme Court case). Volumes 2 and 3 of U.S. Reports also contain cases from many courts, include Pennsylvania courts, lower federal courts, and the U.S. Supreme Court. My understanding is that Alexander Dallas, the entrepreneur who published the cases, included the other courts' cases to make the volumes more salable, since the U.S. Supreme Court produced relatively few cases in its early years.

In any case, the earliest U.S. Supreme Court reference to "equity and good conscience" that I could find in the WESTLAW SCT-OLD comes from the 1804 Term; the first two references, from 1788 and 1796 Terms, come from the Pennsylvania Supreme Court. This doesn't affect the Ninth Circuit opinion's substantive point; and the prase "equity and good conscience" does indeed seem to be roughly contemporaneous in American usage with the founding of the Republic, and likely dates back even before the Revolution in Colonial usage. (I express no view on the historical relationship between the concepts of "equity and good conscience" and "voice of God.") But the incident should be a reminder that "U.S. Reports" doesn't always mean "U.S. Supreme Court."

Related Posts (on one page):

  1. The Law Working Itself Pure:
  2. Little-Known Weird Legal Fact Leads to Glitch in Court of Appeals Opinion:
The Law Working Itself Pure:

How Appealing reports:

The error in a recent Ninth Circuit decision that Eugene Volokh pointed out yesterday in this post at "The Volokh Conspiracy" (and later linked here by me) has today been eradicated from the annals of the law thanks to an order amending opinion that the U.S. Court of Appeals for the Ninth Circuit has issued.