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Ricci v. Chicago Mercantile Exchange/Dissent Douglas

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4691479Ricci v. Chicago Mercantile Exchange — Dissent1973William O. Douglas
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[p308] MR. JUSTICE DOUGLAS, dissenting.


While I concur in my Brother MARSHALL's dissent, I wish to add that even if the Commodity Exchange Commission were empowered to make a determination regarding the relief sought by petitioner, it would appear to be an anomaly to direct the plaintiff in a civil action to a federal supervising agency for a determination as to [p309] whether the regulations which it is charged to enforce have been violated, when the agency has, by its inaction, already shown every indication of sanctioning the alleged violation. By remanding, we are requiring the petitioner to seek from the regulators an admission of their failure to regulate (or negligence in regulating).

The odds of petitioner's getting the Commodity Exchange Commission now to find a violation in contradiction of its past inaction do not, in my view, justify the expense and delay to the petitioner. In the interests of orderly and efficient judicial administration, parties are not generally required to engage in futile gestures. This inequity is even more pronounced since, as MR. JUSTICE MARSHALL points out in his dissent, the Commodity Exchange Commission has neither the authority nor power to make a determination on the issues underlying the civil action.

My concern about remitting parties in federal court litigation to state courts or to federal administrative agencies for resolution of collateral questions of law is stated in my dissent in Clay v. Sun Insurance Office, 363 U.S. 207, 227-228; see also England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 429 (concurring opinion). The road this litigant is now required to travel to obtain justice is equally long and expensive and available only to those with long purses, even though he is remitted only to a federal regulatory agency.