left-over judges

Yesterday, I came across a couple of great brainteaser legal questions from Lily Malcolm over at The Kitchen Cabinet. While you'll probably want to look at Lily's much more charming framing of the questions, here are her brainteasers in a nutshell. (I hope that she does more.) One of them asked why a federal court might send a case back to a lower court for "proceedings not inconsistent with this opinion." Why the double negative? Why not "proceedings consistent with this opinion?" The answer has to do with the relationship between the courts. The other asked what might be the "most aptly named case in American constitutional law." (answers)

While I missed out on the glory of being the first to respond with an answer, the double negative question lead me to think of the unusual relationship between trial judges and appellate judges which existed in Delaware between 1897 and 1951. During that time span, the Supreme Court of Delaware was comprised of the state judges who had not heard the case below. This method of final appellate jurisdiction has been referred to as the "left-over judge system." In 1951, Delaware became the last state in the union to create a separate Supreme Court. There were some interesting developments in the way that the court system evolved during the "left-over judge" period. The Court's web site has a great article about that time, called The Supreme Court of Delaware: 1900 - 1950.