CONTENTS INTRODUCTION I. THE CURRENT HISTORICAL TEST A. The Supreme Court's Interpretation of the Seventh Amendment B. English Courts, American Courts, and the Civil Jury II. THE LIMITATIONS OF THE CURRENT APPLICATION OF THE HISTORICAL TEST A. Reconciling the Historical Record with the Historical Test B. The Public Rights Exception's Development III. PROPOSING A NEW TEST FOR THE SEVENTH AMENDMENT'S SCOPE A. The New Test--What It Is and What It Covers B. Implementing the New Test and Maintaining Efficient Proceedings 1. The Fourth Amendment and Administrative Inspections 2. Tailoring the Civil Jury Right to Fit Administrative Adjudication CONCLUSION INTRODUCTION
The Seventh Amendment provides that "[i]n Suits at common law, ... the right of trial by jury shall be preserved...." (1) To determine whether the amendment provides a jury right, a court must examine the nature of the action and the remedy sought. (2) If the nature and remedy would historically have required a jury trial, then the amendment provides for a jury right. (3) This so-called "historical test" requires a court to investigate eighteenth-century causes of action and procedure, but the federal courts have largely applied it without much difficulty. (4)
Despite this relatively straightforward test, many commentators have challenged the current historically rooted test. There is no consensus on what, exactly, is wrong with the test, nor is there agreement on what test should take its place. This Note argues that the Court's historical test is in keeping with the amendment's scope and purpose. The amendment was written to limit the government's power to remove cases from a jury, thus preserving civil parties' right to receive a jury trial. By requiring an inquiry into the eighteenth-century common law, the historical test does serve that purpose. The Court should reexamine the scope of the amendment, however, as there is some historical evidence to suggest that "suits at common law" means all suits which were not properly of equity or admiralty. Defining "suits at common law" in the negative, it follows that the original scope of the Seventh Amendment is broad enough to cover new types of actions, which have no historical analog in the eighteenth century. (5) The Court has stated that new cases, dealing with "public rights," need not be heard by juries. This "public rights exception" is inconsistent with the amendment's purpose. This Note will examine the historical foundation for the amendment and propose a reworking of the Court's understanding for the Seventh Amendment and the public rights exception. This proposal will not remove the exception entirely but will provide a framework for courts to distinguish those cases where the Seventh Amendment does apply, regardless of forum. In those forums that currently lack a jury, this Note will advance some suggestions for maintaining efficient and effective adjudication.
THE CURRENT HISTORICAL TEST
The Supreme Court's Interpretation of the Seventh Amendment
The central difficulty surrounding the amendment has been determining what civil jury right is "preserved." (6) Some have suggested that the amendment's language refers to the court practices of the states. (7) Such an interpretation would be unduly complex and lead to numerous difficulties. The amendment requires some level of historical analysis, but the amount required has been the subject of debate for decades. Even some members of the Supreme Court have noted that too rigid a historical approach "may seem to reek unduly of the study, 'if not of the museum."' (8)
The word "preserved" has been generally considered to refer to the common law of England. In United States v. Wonson, (9) Justice Story, then riding circuit, took up the issue. That case reached the court on appeal, but the appellant conceded that the trial court had not made any reversible errors. (10) Rather than challenge an error below, the appellant sought a new trial by jury at the circuit court level. (11) Wonson, then, implicated the Seventh Amendment's guarantee that "no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." (12) Story concluded that the amendment did not refer to "the common law of any individual state, (for it probably differs in all)" but to "the common law of England, the grand reservoir of all our jurisprudence." (13) By this interpretation, the right to a jury trial existed in those cases where an English court would have impaneled a jury. Thus, the meaning of the word "preserved" in the amendment was explained, and the right was preserved as it had been in England.
The Supreme Court defined the scope of the right eighteen years later in Parsons v. Bedford, Breedlove, & Robeson. (14) Once again, Justice Story took up the task of interpreting the amendment. Suits at common law, he explained, meant those suits that were distinguishable from suits in equity or admiralty. (15) Suits at common law involved "legal rights," in distinction from suits over "equitable rights alone." (16) Thus, the Court set the bounds of the Seventh Amendment--the civil jury right is implicated when a legal right is at issue. In Wonson and Breedlove, Story determined what would eventually become the Court's "historical test" for Seventh Amendment jurisprudence. A court considers the nature of a case and the remedy sought; if the nature and remedy have analogs in eighteenth-century common law jurisprudence, a court will generally follow the procedure of the eighteenth-century court. The remedy is the more important element of the test. (17)
The Court has followed this test into the present day, providing additional guidance along the way. For example, the Court has cautioned that legal claims should only rarely be subordinate to equitable claims. (18) This would, as the Court noted, mean that it is uncommon for equitable issues to preclude a jury trial on any legal rights. (19) Thus, a case involving both legal and equitable claims will often require a jury trial.
Additionally, the Court has held that the right to a jury trial extends to new causes of action beyond those found in eighteenth-century English courts. For example, in Curtis v. Loether, (20) the Court considered whether a suit under the Civil Rights Act of 1968 implicated the right to a jury trial. That case involved a statutory right with no clear historical analog in eighteenth-century common law. Quoting the court of appeals with approval, the Court stated that "we have considered the applicability of the constitutional right to jury trial in actions enforcing statutory rights 'as a matter too obvious to be doubted.'" (21) The Court also reaffirmed the distinction of Parsons--that the phrase "suits at common law" was meant to "embrace all suits which are not of equity and admiralty jurisdiction...." (22)
The Court has recognized that the Seventh Amendment did not freeze the jury right as it existed in 1791. The test relies on historical analogies to determine when the amendment applies, rather than requiring strict historical parallels. (23) The Court follows a two-part test to determine whether a case involves a suit at common law. A court is to consider (1) whether there is a historically analogous cause of action in eighteenth-century English common law, and (2) whether the remedy sought is legal or equitable. (24) For this analysis, the remedy prong is more important than the historical analogy. (25)
Even when a case implicates the right to a jury trial, the Court has recognized exceptions for procedural issues. If the case involves a suit at common law, a court next determines whether the substance of the right requires a jury trial on the particular issue. (26) A judge may determine a question of law, (27) or a procedural issue, (28) without implicating the right to a civil jury trial. The Court has suggested that the practical limitations of juries were a consideration, but it has not explicitly included this in its analysis. (29)
The Court has recognized an exception for public rights. (30) When Congress creates a public right by statute, it may delegate the adjudication of a claim involving that right to a forum not governed by Article III. (31) Congress, then, has the discretion to create a new forum and to determine whether a jury is required. (32) This exception is invoked in numerous cases, including bankruptcy proceedings and administrative actions. (33)
While the public rights exception is consistent with the boundaries of Article III, it is inconsistent with the purpose of the Seventh Amendment. Commentators have proposed solutions to the interpretive inconsistencies--from the strictly historical (34) to the practical. (35) This Note argues that the right to a civil jury does apply in those cases heard in non-Article III courts. This understanding has a significant impact on the public rights exception.
In the centuries since Wonson, courts have treated the Seventh Amendment as preserving the civil jury in those cases where it would have been granted under English common law. This approach does have some advantages. First, the states were not uniform in their legal regimes. Second, many more treatises deal with English common law of that time period and lastly England had a longer record of trial practice for courts to examine.
There are, however, some important differences between the English common law right and the colonial American understanding of the right to a jury trial in civil cases. While this Note does not argue that the term "suits at common law" requires a federal court to follow specific state procedure, this Note does contend that the amendment refers to a broader understanding of the common law right to a jury trial in civil cases. This distinction can be seen by comparing historical English practice with the courts of the early American republic.
English Courts, American Courts, and...