Suchergebnisse

From yesterday's decision in SaveRGV, Sierra Club & Carrizo/Comecrudo Nation of Texas v. Texas General Land Office, decided yesterday by the Texas Court of Appeals (Corpus Christi-Edinburg), in an opinion by Justice Clarissa Silva, joined by Chief Justice Dori Contreras and Justice Nora Longoria: The Texas Constitution provides that "[t]he public, individually and collectively, has…

On January 1, 2024, the Israeli Supreme Court struck down a constitutional amendment prohibiting judicial review of actions of the government, the prime minister, or any minister based on the "reasonableness" doctrine. The judgment illustrates how societal and judicial vigilance in recognizing "early warning" signals of potential "constitutional capture" may play a significant role in battling such processes. However, notwithstanding this judgment and the halting of the legislative process, the threat of democratic backsliding in Israel persists. The ongoing war has, in fact, paved the way for further anti-democratic measures, some of which were upheld by the very same Court that struck down the anti-reasonableness amendment.

The passage of the appropriations bill by the United States Congress has had major implications for future generations of New Mexicans by providing funding for the state's early childhood education constitutional amendment, which was adopted by the state legislature in 2021 and supported overwhelmingly by voters in 2022. The last step to finalizing the state's…

If the government must "square corners" to protect illegal aliens and convicted criminals, Constitutional protections for Americans deserve consistent application.

Likelihood of prevailing on a constitutional claim may suffice for a preliminary injunction.

Biden still wants to explore the 14th Amendment—but it isn't a presidential authority, and the debt limit doesn't create a constitutional "trilemma."

Coauthor Josh Braver and I argue exclusionary zoning violates the Takings Clause of the Fifth Amendment.

Florida Gov. Ron DeSantis said he would push state lawmakers to pass four resolutions that would compel Congress to call a "convention of states" aimed at passing state-accepted resolutions as Constitutional amendments. Experts say this would be neither simple nor easy.

Fashioning constitutional rules isn't easy; Justice Barrett and the Court deserve kudos for their efforts to establish a rule to determine if public officials' activities constitute state action.
The post Judicial Rulemaking and Lucidity: Justice Barrett’s First Amendment Opinion in Lindke v. Freed appeared first on American Enterprise Institute - AEI.

It may be the dog days of August, but elections never sleep. Today in Mississippi, voters head to the polls to pick their nominees for state and legislative offices, including governor and lieutenant governor. And Ohioans will vote on a ballot measure that would raise the threshold for passing future constitutional amendments (such as one […]

Tuesday is Election Day in Ohio and it's a bit of an unusual one. Ohioans are voting on whether to increase the threshold to pass constitutional amendments from a simple majority to a 60 percent supermajority. In this installment of the FiveThirtyEight Politics podcast, Galen Druke speaks with senior elections analyst Nathaniel Rakich about where […]

Tuesday is Election Day in Ohio and it's a bit of an unusual one. Ohioans are voting on whether to increase the threshold to pass constitutional amendments from a simple majority to a 60 percent supermajority. In this installment of the FiveThirtyEight Politics podcast, Galen Druke speaks with senior elections analyst Nathaniel Rakich about where […]

A virtual event examining whether Donald Trump is disqualified from running for President under the 14th Amendment.

Abortion rights in Ohio passed their first test on Tuesday. But the final exam could still be a challenge. By a margin of 57 percent to 43 percent, Ohio voters rejected Issue 1, which would have made it harder to pass future state constitutional amendments by (among other things) requiring them to get 60 percent […]

Joshua A. Katz


The Seventh Amendment guarantees the right of trial by jury for "Suits at common law." But defining when a suit is "at common law" can be surprisingly tricky. More than two hundred years after the Seventh Amendment's enactment, the matter remains heavily litigated and unresolved.
For the first time in U.S. history, plaintiffs suing an employer for breach of ERISA fiduciary duties resulting in excessive fees have received a jury trial. ERISA, the Employee Retirement Insurance Security Act, requires employers sponsoring retirement plans to behave prudently with plan money. (Full disclosure: This case was litigated by my former firm, and I was at the firm during the trial.) The court held that the 7th Amendment jury trial right for "Suits at common law," applies to such claims, despite plaintiffs seeking relief under ERISA's provision for "other appropriate equitable relief." The scope of the 7th Amendment jury trial right is no simple matter, but the court in Yale University got it right, and in so doing protected a vital constitutional right.
The case involves the distinction between suits at "law" and suits at "equity." Historically, the British courts of law split and shared jurisdiction with the "Chancellor's court," which heard equity cases. In law, claims were advanced seeking, predominantly, monetary damages. In equity, by contrast, courts typically awarded such remedies as injunctions and specific performance (in a nutshell, orders for people to take or refrain from taking certain actions). Although the Federal Rules of Civil Procedure merged law and equity into a single form of action, the distinction lives on in some states, most famously Delaware, where corporate law matters go to the Court of Chancery because they concern trusts.
The right to a jury trial depends on both the nature of the action and the nature of the remedy. In ERISA cases, the statutory action is undoubtedly equitable in nature. This makes sense, as Congress was consciously adopting portions of the common law of trusts. As Justice Antonin Scalia has explained, "appropriate equitable relief" means relief that was "typically available in equity" pre‐​merger. Monetary relief is permitted in such cases because it takes the form of surcharge, an equitable remedy consisting of an injunction requiring a fiduciary (like an employer) to pay for a loss that resulted from his breach. In most cases, plaintiffs sue because, for instance, the employer caused them to pay excessive fees to an investment firm or recordkeeper. But there is no segregated fund from which the funds will be collected; indeed, they are not even in the hands of the defendant. These are historical markers of equitable remedies: recovery from segregated funds unjustly obtained is equitable. Without those markers, the Supreme Court has held that monetary damages are legal rather than equitable, because they were not typically available in equity.
In sum, these cases present an equitable claim for relief, together with a remedy not typically available in equity pre‐​merger. While both the claim and the remedy sought matter for the 7th Amendment analysis, the Supreme Court has made clear that the remedy is the more important. So ERISA cases seeking monetary relief against employers for money paid to third parties should be decided by juries; they seek legal relief, albeit under an equitable statutory right.
Until now, all courts before which the matter reached trial have (wrongly) rejected this conclusion. In general, these courts have read the Supreme Court's precedent holding monetary damages to be legal damages narrowly, because that case dealt with a suit by a fiduciary against a non‐​fiduciary. These courts have instead applied the "previously available in equity" test strictly, holding that the collection sought in these cases is surcharge, an exclusively equitable remedy. These reeds are too thin, though, for the denial of a constitutional right, as the court in Yale rightly held.
So in Yale, score one for the defendants, who received the jury verdict, but score another for the Constitution, whose 7th Amendment received some much‐​needed recognition.