July 29, 2005

Jarndyce and Jarndyce

by PG

Earlier this summer, a submission to my journal in the law & lit area gave me reason to look at an old paper I wrote as an undergradute for a Dickens seminar. In it I focused on the interplay between the legal world and romance in some of the novels -- the eye-roll-inducing title was "Courting Dickens" -- and there's much more material out there about Dickens's portrayals of law overall. For the most part, he took an extremely negative view. The case of Jarndyce and Jarndyce depicted in Bleak House destroys everything it touches and finally swallows up the disputed estate through decades of lawyers' fees. As Justice Ginsburg footnoted in Hess v. Port Auth. Trans-Hudson Corp.,

The dissent questions whether the driving concern of the Eleventh Amendment is the protection of state treasuries, emphasizing that the Amendment covers "any suit in law or equity." Post, at 60. The suggestion that suits in equity do not drain money as frightfully* as actions at law, however, is belied by the paradigm case. See Jarndyce and Jarndyce.
In an order for argument in Scales v. U.S., Justice Clark concludes,

The case first came here over three years ago. Certiorari was originally granted on March 26, 1956, 350 U.S. 992. After oral argument, the case was restored to the docket and ordered to be reargued, 353 U.S. 979. Prior to reargument, the Solicitor General filed a memorandum suggesting remand for a new trial under our intervening ruling in Jencks v. United States, 353 U.S. 657. This was done, 355 U.S. 1. After affirmance of a second conviction, we again granted certiorari, 358 U.S. 917, and on April 29, 1959, heard oral argument for the second time.

The Court poses some questions ostensibly for the guidance of counsel at the third argument. None involves the "Jencks question," so there must be no doubt in the Court's mind on that issue. In fact, all of the questions posed have been fairly covered by the two arguments already made by capable counsel. All the reargument does is cause inordinate delay. The case is as ready for disposition now as it will ever be, and we should not adjourn until it is handed down.

Much has been said of late of the law's delay, and criticism has been heaped on the courts for it. This case affords a likely Exhibit A. It looks as if Scales' case, like Jarndyce v. Jarndyce, will go on forever, only for the petitioner to reach his remedy, as did Richard Carstone there, through disposition by the Lord.

Compared to Jarndyce, however, four years doesn't seem terribly long for the disposal of a case. The long-running cases that come to my mind in recent Supreme Court jurisprudence would be the ACLU's challenges to the Communications Decency Act of 1996 (filed after the law's signing and still going as of last year), and Adarand, which commenced sometime in the early '90s and kept coming up until the Court finally stopped granting cert in 2001.

Any other suggestions for the litigation that never ends, it just goes on and on my friends?

* If there were no other reason to love Justice Ginsburg, word choice alone would suffice.

July 29, 2005 05:00 PM | TrackBack
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