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.
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. Accordingly, the civil jury in the United States should essentially resemble the eighteenth-century English jury. An important question about the Seventh Amendment concerns whether the Court has correctly determined the substance of this past English jury trial. That is, has the Court appropriately divided decision-making authority in the federal government between juries and judges by (1) allocating (or permitting) certain cases to be decided by judges instead of juries and (2) permitting judges to use new procedures that ultimately take cases away from juries?
Let’s first examine some of the matters that the Supreme Court has permitted judges to decide. One such case involves “public rights.” The Court has labeled as “public rights” certain claims that Congress created through legislation. An example of a “public right” includes the government alleging a company violated a federal law. In cases such as these, judges (here, in administrative agencies in the executive department), instead of juries, determine if the government wins and how much money it will receive. Atlas Roofing Co. v. Occupational Safety and Health Review Commission (1977); Jean Eaglesham, Federal Judge Rules SEC In-House Judge's Appointment 'Likely Unconstitutional,' Wall St. J., June 8, 2015.
But, in the past, juries, not judges, decided these types of cases in which the party bringing the lawsuit could receive money. The Seventh Amendment “preserve[s]” the jury trial right “in Suits at common law, where the value in controversy shall exceed twenty dollars.” In late eighteenth-century England, with very rare exception, juries in “common law” courts decided who won and how much money would be received for the damage that the party suffered. Juries also heard new claims created by the English parliament for which the remedy of money damages was available.
In “equity” courts, by contrast, judges did not decide issues of how much money to award. Instead they decided questions such as whether to grant a remedy for a breach of contract called “specific performance.” Here, to honor a contract that had been violated, a judge could order someone to sell a house or be removed from land. Because juries decided monetary remedies in common law courts, and judges determined other types of remedies in equity courts, the Seventh Amendment preserved juries’ authority to decide money issues. See James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries 45-79 (2006).
This essay is part of a discussion about the Seventh Amendment with Renée Lettow Lerner, Professor of Law, George Washington University Law School. Read the full discussion here.
The Supreme Court has shifted other authority from juries. Once cases are under juries’ authority, using new procedures, judges can dismiss cases before, during, and after jury trials, by deciding that existing evidence does not support the claims that the people brought. One such procedure is called “summary judgment.” Using this procedure, prior to a jury trial, a judge can decide if insufficient evidence exists and dismiss the lawsuit. In eighteenth-century England, a judge could not take a case away from the jury under these circumstances. A judge would assess the sufficiency of the evidence only after a jury trial. If there was insufficient evidence of the claim, the judge would order a new trial before another jury. For a judge to throw a case out of court, specific circumstances were required and these rarely occurred. The person who disputed the claim admitted the facts and conclusions of the opposing party’s evidence, and the court determined whether there was a claim under those admissions. (For example, see the English case of Gibson v. Hunter, 126 Eng. Rep. 499 (H.L. 1793)).
With the past only loosely governing the jury’s authority, the executive, the legislature, and the judiciary now hold power that the English jury formerly held. As a result of this shift in power, the jury cannot properly protect against abuses of governmental power.
Although some argue that the past or English practice should not govern the civil jury trial right, it is important that this be used to guard the jury’s authority. The civil jury, unlike the traditional branches of government, has no ability to protect its own power—for example, by convening itself and deciding cases. If the English eighteenth-century historical connection is not restored, the branches will continue to take cases from juries, and juries will hear few cases in federal court. See Suja A. Thomas, The Missing American Jury: Restoring Its Fundamental Constitutional Role (Cambridge Univ. Press 2016) (in addition to civil jury’s decline, discussing fall of criminal and grand juries).
Juries also decide few cases in state court. As described in the joint statement, many state constitutions guarantee a jury trial in certain civil cases. An important question concerns whether the U.S. Constitution itself requires juries in civil cases in state courts. Under the Fourteenth Amendment, if a right is deemed fundamental, states are required to protect the right. The Supreme Court has decided that the civil jury trial right is not a fundamental right, so states are not obligated to hold civil jury trials. However, the Court has acted differently with respect to other rights. Except for other jury rights, every other right in the Bill of Rights that the Court has considered has been determined to be a fundamental right. For example, recently in the case of McDonald v Chicago (2010), the Court recognized the right to bear arms as a fundamental right that states must protect.
Evidence at the Founding through the Fourteenth Amendment’s adoption actually shows the civil jury right was a fundamental right, respected by the English, the Founders, the Fourteenth Amendment’s Framers, and the states. As a result, under the authority of the U.S. Constitution, states should hold jury trials in all types of cases, including small claims matters, where states currently do not require juries.
The civil jury today is almost extinct. Changes to the way courts apply the Seventh Amendment are not going to revive the institution. Civil jury trial—and the process leading up to it—is so long, expensive, and unpredictable that almost no parties want to use it. Parties would rather have a decision by a judge, or, more often, reach an agreement and settle the case.
Civil jury trial has always had serious shortcomings. These have only become deeper with time, and reform cannot solve them. This is why the civil jury either has never existed or has virtually disappeared all over the world, including in the United States. It would be better to repeal the Seventh Amendment and to focus on improving investigation of facts and decision-making in civil cases.
The Political Reason for the Civil Jury
The joint statement explains that Americans at the time of declaring independence valued the civil jury mainly for a political reason. After the Revolution, that political reason became much weaker.
Colonial and revolutionary Americans praised the civil jury for its ability to nullify, or refuse to follow, hated British laws—especially laws about taxes. While Americans were under British rule, juries were a way for Americans to govern themselves. After independence, the American people formed the federal and state republics and governed themselves through elected officials in legislatures and the executive. The representative function of the jury became less important. Jury nullification turned out to be deeply problematic in a self-governing republic. In the American republics, the people elected representatives to make and enforce the laws. Not only that, but the laws were made according to carefully designed mechanisms specified in constitutions, themselves ratified by the people or their representatives. Why should twelve persons have the right to nullify laws made in this manner?
Once the revolutionary era was over, many Americans began to regard the civil jury not so much as a mini-legislature, but as a way of deciding cases. The political observer Alexis de Tocqueville wrote that the jury could be regarded either as a political institution or as a judicial institution. Alexis de Tocqueville, Democracy in America 270-276 (J.P. Mayer ed., George Lawrence trans., 1969). Although he praised the jury’s political role in educating citizens, Tocqueville suggested that as a judicial institution—a way of deciding civil cases—the jury had significant shortcomings. See Tocqueville, at 270-271. It always had.
The Intrinsic Shortcomings of the Jury and the Constant Need for an Alternative
Judges have always understood that ordinary juries have difficulty understanding cases involving complicated facts and law. Also, juries need mainly oral evidence from witnesses, as jurors’ ability to understand written evidence well is not assured. Juries must hear all evidence in a case at once and decide all issues at once, despite potential confusion, because it is not practical for jurors to keep coming back to court at different times. Furthermore, it is difficult to correct a jury verdict on appeal, because jurors give no official reasons for their decisions.
The English common law developed various ways to try to cope with these shortcomings. There were rules (called “pleading” rules) that limited the number of parties that could appear in a single jury case, the number of claims a party could make, how complicated a claim could be, and what remedy was available. Cases that went to a jury generally concerned only two parties, one claim for money damages, and one or at most a few simple questions of fact. A judge could comment on the evidence in a case, to help the jury understand. At common law, almost the only remedy for a jury making a mistake was to order a new trial. A new trial was time-consuming and expensive, because the case had to be tried all over again to a different jury, but at least it was some way to correct jury error.
This essay is part of a discussion about the Seventh Amendment with Suja A. Thomas, Professor, University of Illinois College of Law. Read the full discussion here.
Obviously many disputes were more complicated and could not adequately be resolved this way. English judges developed entire separate systems to handle more complicated disputes, with decisions not by juries but by judges. The main alternative system was called “equity.” The system of equity decided many important disputes, including questions of mortgages, bankruptcy, fraud, trusts, and business associations. See John H. Langbein, Renée Lettow Lerner, & Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions 352-355 (2009). Equity was able to administer more complicated remedies like injunctions (orders from a court to do something or not to do something), besides giving money damages. By the eighteenth century, judges in equity had to give written reasons for their decisions, and those decisions could be appealed.
The Seventh Amendment is based on the distinction between common law and equity. The Amendment states that its requirements concerning jury trial apply in “suits at common law,” not equity.
Jury Trial Is Even More Poorly Suited to Deciding Modern Civil Cases
Civil jury trial has always been problematic, but changes have occurred since the late eighteenth century that make jury trial even more difficult and rarer. Here are some of the most important:
Because states and the federal government have merged the systems of common law and equity, the old common-law restrictions on cases going to a jury are gone. Now, juries can hear cases involving many parties, many claims, and complicated issues. Technology has grown more complex, and business transactions more intricate. Evidence is increasingly in written, numerical, or scientific form, which is often difficult for jurors to understand. Judges have lost the power to comment on evidence to the jury, to help jurors understand the case.
Even apart from disputes becoming more complicated, the adversarial system in the United States has slowed down jury trial. Changes include: extensive procedures for selecting jurors (such as questionnaires and in-person questioning, called voir dire); elaborate rules of evidence; dueling expert witnesses; and long, complicated instructions to the jury on law. Jury trials are often a heavy burden to jurors, their families, and their employers.
At common law, there were few ways for a party to get information about the case before trial. Trial was needed to find out what happened; surprise was a major problem. After the merger of common law and equity, parties have many ways to get information before trial—all taken from equity. These methods are called “pretrial discovery.” This information helps parties to settle and makes trial seem unnecessary.
A judge now can decide before trial that a party does not have enough evidence to go to a jury, in a procedure called summary judgment. There was no summary judgment at common law, because there was no pretrial discovery. In the eighteenth century, a judge did not know what evidence a party could produce at trial. Pretrial discovery changed that. Civil jury trial is nearly gone in the United States, and for good reason. Promising reforms are developing in investigating and resolving civil disputes. These could be more thorough and effective without the remaining hindrance of the Seventh Amendment.