In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
The Seventh AmendmentBy Renée Lettow Lerner and Suja A. Thomas
To many Americans, jury trials seem to be the normal way of deciding civil cases. Television programs and movies show exciting scenes of juries deciding important non-criminal disputes involving individuals, government officials, and companies.
The reality is different. Juries decide less than one percent of the civil cases that are filed in court. This lack of jury trials may seem strange, as the Seventh Amendment guarantees the right to jury trial in certain civil cases.
There are two main types of court systems in the United States: federal and state. The Seventh Amendment requires civil jury trials only in federal courts. This Amendment is unusual. The U.S. Supreme Court has required states to protect almost every other right in the Bill of Rights, such as the right to criminal jury trial, but the Court has not required states to hold civil jury trials. Minneapolis & St. Louis Railroad Co. v. Bombolis (1916). Nearly all of the states, however, have rights to civil jury trial in certain cases in their state constitutions.
The United States is almost the only nation that continues to require civil jury trials. Civil juries similar to those in the United States are not part of the legal traditions of the Continent of Europe or the legal systems derived from those traditions, including in Latin America and Asia. Even in England and its former colonies of Canada, Australia, and New Zealand, civil jury trial has virtually been abolished.
Why did some persons at the founding of the United States think that civil jury trial was so important that it should be guaranteed in the federal and state constitutions? To understand the Seventh Amendment, we need to go back into history and the English legal system. Much of the legal system in the United States, and especially the provisions of the Bill of Rights, are based on America’s English roots.
The civil jury was an old English institution, older even than the criminal jury. Since the middle ages, the English had used juries of persons not trained in law to decide certain civil cases. There were always some English courts that did not use juries. In these courts, judges decided cases. The most important of these juryless courts was Chancery, also known as Equity.
In the eighteenth century, as the desire of American colonists for independence from Britain grew, the jury in America became more important. The British government claimed that Americans had to obey laws enacted by the British Parliament, in which Americans had no representation. Americans did participate on colonial juries, and these juries became a way for Americans to govern themselves. As tensions with Britain rose, juries nullified (refused to follow) hated British laws, especially laws for collecting taxes. Because colonial juries had been valuable in the struggle against Britain, Americans put rights to civil and criminal jury trial into their new state constitutions immediately after declaring independence in 1776.
By the time the federal Constitutional Convention met in Philadelphia in 1787, opinions about the civil jury were more mixed. Because state civil juries had been sympathetic to debtors, Federalists in particular feared nullification of the laws of contract. For this and other reasons, the federal Constitution that was presented to the states for ratification did not include a right to civil jury trial.
In the state ratifying conventions for the federal Constitution, Anti-Federalists strongly protested the lack of a right to civil jury trial. They expressed concerns about debtors, and also argued that juries could protect litigants from bad laws passed by the legislature, tyrannical actions by the executive, and corrupt or biased judges. Fearing that a second constitutional convention might be called if a right to civil jury trial were not included in a federal Bill of Rights, James Madison drafted what became the Seventh Amendment.
The Seventh Amendment has two clauses. The first, known as the Preservation Clause, provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” This clause sets out the types of cases juries are required to decide. The second clause, known as the Re-examination Clause, declares: “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.” This clause prevents federal judges from overturning jury verdicts in certain ways.
The term “common law,” used twice in the Amendment, can be confusing. Today, the term “common law” often means law declared by judges, as opposed to law enacted by legislatures. In the Seventh Amendment, the term “common law” means the law and procedure of the courts that used juries, as opposed to Equity and other courts that did not use juries.
In interpreting the Seventh Amendment, judges soon encountered a problem. To which “common law” courts was the Amendment referring? The states had different civil jury practices, and the federal courts were new. The United States Supreme Court announced a solution. The term “common law” in the Seventh Amendment meant the common law of England. Parsons v. Bedford (1830). A century later, the Supreme Court formally declared that the Amendment was to be interpreted according to the common law of England at the time the Amendment was ratified, that is, in 1791. Dimick v. Schiedt (1935).
This interpretation is known as the historical test. Generally, the types of cases that juries decide and the ways that judges can review their verdicts are supposed to resemble the practice in English common law courts in 1791. The Supreme Court has stated that the Amendment preserves the “substance” of the right, not “mere matters of form or procedure.” Baltimore & Carolina Line, Inc. v. Redman (1935). Departures from the English practice in 1791 have been permitted, including using six jurors instead of twelve. Colgrove v. Battin (1973).
Our individual statements will examine the questions of why civil jury trial has become so rare and what should be done about it.
Matters of Debate
Renée Lettow Lerner Professor of Law, George Washington University Law School
The Problem of the Seventh Amendment and Civil Jury Trial by Renée Lettow Lerner
The civil jury today is almost extinct. Changes to the way courts apply the Seventh Amendment are not going to revive the institution.Full Text
Suja A. Thomas Professor, University of Illinois College of Law
The Fall of the Civil Jury by Suja A. Thomas
As we explained in the joint statement, the Supreme Court has decided that the substance of the English common law jury trial right in 1791 governs the meaning of the Seventh Amendment today.Full Text