Trial By Combat in New York?

A friend sent me this post by Eugene Volokh commenting on a colorful brief filed by Richard Luthmann, a Staten Island attorney. This paragraph from near the end of the document sums up the attorney's position:

The allegations made by Plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned respectfully requests that the Court permit the Undersigned to dispatch Plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His Divine Judgment once the Undersigned has released the souls of the Plaintiffs and their counsel from their corporeal bodies, personally and/or by way of a Champion.

Luthmann is seeking to resolve the dispute through trial by combat, and throughout his brief he goes into great detail about the history of trial by combat in England. He argues that trial by combat is a permitted method of dispute resolution in the United States because trial by combat was legal in England when the original United States colonies were formed, and United States law inherited the English common law of the time. Accordingly, Luthmann argues that under the Ninth Amendment, he has the right to have the case decided through trial by combat.

Full coverage of the case can be found here. Above the Law also summarizes the case here.

While Luthmann may be correct that trial by combat was never officially outlawed in the United States, I suspect that his quest to have his case decided through trial by combat is doomed to fail. Adam Winkler, quoted in this Business Insider article, notes that while the common law inheritance argument may be technically correct, no court would adopt the trial by combat approach. And I suspect that Luthmann's claims of a Ninth Amendment right to trial by combat would run into Seventh Amendment problems were the other party to the suit to invoke the right to a trial by jury, since the Seventh Amendment preserves the right to a trial by jury in civil cases involving a dispute greater than $20.

If Luthmann or another party really wishes to have disputes resolved through trial by combat, a better course of action may be to enter into a contract that states that trial by combat is the agreed-upon method for resolving disputes that may arise under the contract. This is what Raj Shah and I argue in our article, Arbitration by Combat, which was very recently published in the Media and Arts Law Review and which I summarize in this post. I will be sure to announce when the full article becomes available on SSRN, so trial by combat enthusiasts should stay tuned!