Dear Fellow:

For almost fifty years, the College has been privileged to sponsor delegates of Great Britain and the United States in exploring common legal issues through the United Kingdom - United States Legal Exchange.

The purpose of the Exchange is to provide a forum for study and discussion about matters of common interest to jurists of the United Kingdom and the United States. Participating judges have told the College that the Exchanges provide substantial value to the judiciaries of both countries. Participants have used what they learn from the Exchanges to implement improvements in their respective legal systems.

We are pleased to report that the 2015-2016 Legal Exchange, the second leg of which took place in Philadelphia and Washington, D.C. from September 16 to September 22, was once again very successful. 

We were delighted to receive significant media coverage of the event and wanted to share it with you.

The College received coverage from the following media outlets:   

A “view” from the Courtroom: Philadelphia in 1794
SCOTUS Blog, Sept. 20, 2016 
By: Mark Walsh
PHILADELPHIA, September 19, 1794 — Your correspondent has traveled from the budding City of Washington in the Territory of Columbia to our nation’s capital here to cover a rare jury trial in the Supreme Court of the United States.

I ride the express, eight-horse-drawn carriage rather than the slower, four-horsepower “regional” carriage, which stops in all the smaller towns along the route. Although the faster carriage costs a few more shillings, I will justify it on my expense account by noting that the faster one gets me into Philadelphia in time to have the buckles on my shoes shined and my wig re-powdered.

I also buy a newspaper, Dunlap & Claypoole’s American Daily Advertiser, which has news about the Court convening, the French Revolution, ships preparing to set sail, and something that seems to hark from a different era, that “the Phillies are out of the pennant race.”

After an initial, unremarkable term in New York City, the Supreme Court has convened since 1791 at the City Hall of Philadelphia (which I predict will one day be called Old City Hall), next door to historic Independence Hall.

The case for argument today is  Georgia v. Brailsford, a knotty dispute over an unpaid debt incurred before the Revolutionary War that implicates states’ rights, international treaties, fair credit, and the reputation of the still-new Supreme Court.

“In 1794, this case was a very big deal,” says Chief Justice John Roberts.

To continue reading the article, click here.
In Philadelphia, Justices Roll Back Clock to 1794
Wall Street Journal, Sept. 20, 2016
By: Jesse Bravin

PHILADELPHIA–Unable to resolve today’s major cases with a deadlocked Supreme Court, Chief Justice John Roberts escaped Monday to 18th century Philadelphia’s Old City Hall, where the Supreme Court met before Washington, D.C., was established.

Flanked by Justices Stephen Breyer and Samuel Alito, the chief justice came to reenact a landmark case from 1794, Georgia v. Brailsford, involving issues still debated today: the relationship between the state and federal governments, the significance of international law, and the powers of the jury. The justices participate in such reenactment events, which can touch on history, the arts and the law, with some regularity.

“In 1794, this case was a very big deal. It took the lawyers four days to present their arguments,” Chief Justice Roberts said. “We will not faithfully reenact that aspect of the case,” he added, prompting audience laughter.

The chief justice noted some differences between 18th century practice and modern conventions. For instance, a lawyer for the state of Georgia, Alexander Dallas, also at the time served as the Supreme Court’s official reporter of decisions. William Bradford, an attorney representing British merchant Samuel Brailsford, was moonlighting from his part-time job as U.S. attorney general. And Chief Justice John Jay displayed no reservations about hearing the case—despite having helped negotiate one of the principal matters at issue, the Treaty of Paris, which ended the Revolutionary War in 1783.

“As all these peculiarities illustrate, our young nation was far more tolerant of potential conflicts of interest than we are today,” the chief justice said.

The biggest difference, however, was that the Supreme Court used a jury to decide the case—a panel that Chief Justice Jay at the time said had the final word not only on the facts, but also on the law. With the reenactment part of a legal exchange between the U.S. and U.K. Supreme Courts, the jury, which in 1794 consisted of Philadelphia merchants, was played Monday by a panel of British jurists.

The case stemmed from Brailsford’s effort to collect his 1774 loan to a group of Americans, including a Georgia colonist. Georgia argued the money was uncollectible under its wartime Confiscation Act, which “sequestered” debts owed to British merchants “to remain for the use of this state until otherwise appropriated.”

Brailsford countered that the Treaty of Paris, signed a year after the Georgia Confiscation Act, revived the obligation.

The court had to decide two questions: whether “sequestration” meant something less than outright confiscation, and if the treaty with Britain superseded the state law.

While staying in the 18th century, Monday’s participants occasionally inserted a subtle reference to more recent events. The Obama administration’s recent settlement of a decades-old debt to Iran, for instance, by sending Tehran planeloads of cash.

“Suppose we had a treaty, let’s say, with Persia,” said Justice Breyer, which created a tribunal to “arbitrate commercial debts with Persia of all kinds. And then suppose Congress doesn’t approve. Is this court supposed to issue an injunction?”

An attorney for Brailsford, Alfred Putnam, insisted Persia was still entitled to collect. “Not that I would suggest making treaties with Persia,” he added.

As in 1794, Brailsford won the case, with agreement that sequestration was a temporary wartime measure rather than permanent divestment and that the treaty superseded the state law.

Despite that bracing return to the days of a decisive Supreme Court, there was an inadvertent reminder of its present condition. While four justices heard the original Brailsford case, only three took the bench Monday. Perhaps the exercise’s imaginary Senate had declined to consider President George Washington’s nominee, preferring to let the nation’s second president fill the vacancy.
Shorthanded Supreme Court goes back in time
USA Today, Sept. 19, 2016
By: Richard Wolf

PHILADELPHIA — Three Supreme Court justices came to the nation's birthplace Monday to re-enact the only reported jury trial in the court's history, and they added a modern touch: They were a justice short.

It took four of the six justices serving in 1794 to preside over Georgia v. Brailsford, a 222-year-old case that tested whether a state could confiscate debts owed to a British citizen once the Revolutionary War had ended. The justices and the jury — then and now — thought not.

The case was unique on several levels. The court has never again held a fully reported jury trial — even though it can do so under the Constitution. In his ruling, Chief Justice John Jay instructed the jury that it could decide legal as well as factual questions — a precedent that's been used to justify jury decisions that ignore settled law.

To continue reading the article, click here .

Law.Com, Sept. 19, 2016
By: Tony Mauro

For a few hours on Monday, the eight-member U.S. Supreme Court morphed into a three-member panel reenacting one of its earlier cases in the same Philadelphia courtroom where it was first argued in 1794.  

Chief Justice John Roberts Jr. and Justices Stephen Breyer and Samuel Alito Jr. donned their black robes for a rare outside-the-Beltway sitting in Philadelphia’s Old City Hall, where the court convened sporadically as a six-member court from 1791 to 1800. As when it holds hearings in Washington, broadcast cameras were not allowed, and only a court photographer was allowed to take still photos.  

The invitation-only event was part of the every-few-years exchange between U.S. and U.K. jurists sponsored by the American College of Trial Lawyers to “share experiences and keep current” on their common legal roots, as Roberts put it.  

Four trial lawyers—William Hangley, Paul Sandler, Linda Hoffa and Alfred Putnam Jr.—argued the case before the three justices, using more colorful and forceful styles than most high court advocates do, and sometimes talking over a justice, a no-no at the modern-day court.  

The case the justices re-enacted was Georgia v. Brailsford, a quirky dispute that has been billed as the only reported Supreme Court case in which the court itself held a jury trial—though the court convened other juries in unreported cases through the end of the eighteenth century. Scholars Charles Alan Wright and Arthur Miller wrote in their 2013 Federal Practice and Procedure text that “the prospect of a jury trial conducted by nine justices at the expense of other cases is appalling.”  

The oddity of the case did give British jurists a role to play on Monday—as the jurors who decided the case based on the advice of then-Chief Justice John Jay. Among them were Lord Jonathan Mance and Lord Robert Reed of the United Kingdom Supreme Court.  

The American College of Trial Lawyers, an elite litigation society, recruited four fellows to play the advocates. Hangley is a founder of Philadelphia’s Hangley Aronchick Segal Pudlin & Schiller. Hoffa is a partner at Dilworth Paxson and chairs the firm’s white-collar defense group. Putnam is a partner and former chairman of Drinker Biddle. Sandler is a Baltimore partner at Shapiro Sher and chair of the firm’s litigation group.  

The case arose from a post-Revolutionary War dispute. Samuel Brailsford, a British subject, filed suit in federal court in 1790 against James Spalding, a Georgia citizen who had owed him money since 1774. Georgia intervened, claiming that Spalding in fact owed the money to the state, because of a law Georgia had passed during the war to “sequester” debts owed to British creditors. A Yale Law Journal article in 2013 described the case in detail.  

After some disagreements over jurisdiction, Georgia sued Brailsford in the U.S. Supreme Court under the court’s “original jurisdiction” over cases involving states. The parties met to choose a “special jury” made up of merchants. The four-day trial featured advocacy by Attorney General William Bradford Jr. on behalf of Brailsford, and Alexander Dallas and Jared Ingersoll for Georgia.  

After the presentations in 1794, Chief Justice John Jay instructed the jury that the court unanimously agreed that, under the wording of Georgia’s law, the state did not actually confiscate Spalding’s debt, so Brailsford could proceed to sue Spalding directly.  

Jay went on to remind jurors of the “good old rule” that questions of law were typically the “province of the court,” while juries decided questions of fact. But Jay added that “you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.” The jury then sided with Brailsford.  

Jay’s statement to the jurors suggesting it was proper for them to decide both the facts and the law has made Brailsford a founding document for those who approve of jury nullification of laws.  

Roberts, filling the role of Jay, read Jay’s jury instructions to the modern-day jurors, and the jurors decided the case the same way their 18th century predecessors died.  

He added that Brailsford was said to have used the money he recovered to buy a slave.

That led Roberts to note than in five days, the Smithsonian Institution’s new National Museum of African American History and Culture is set to open in Washington. As chief justice, Roberts serves as chancellor of the Smithsonian.