[Constitution of the United States of America: Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[Seventh Amendment - Civil Trials]
[From the U.S. Government Printing Office, www.gpo.gov]
[[Page 1449]]
SEVENTH AMENDMENT -- CIVIL TRIALS
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CONTENTS
Page
Trial by Jury in Civil Cases.............................. 1451
The Right and the Characteristics of the Civil Jury....... 1451
History........................................... 1451
Composition and Functions of Civil Jury........... 1452
Courts in Which the Guarantee Applies............. 1453
Waiver of the Right............................... 1453
Application of the Amendment.............................. 1454
Cases ``at Common Law''........................... 1454
The Continuing Law-Equity Distinction............. 1457
Procedures Limiting Jury's Role................... 1460
Directed Verdicts................................. 1461
Jury Trial Under the Federal Employers' Liability
Act........................................... 1462
Appeals from State Courts to the Supreme Court............ 1464
[[Page 1451]]
SEVENTH AMENDMENT
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CIVIL TRIALS
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 re-examined in any Court of the
United States, than according to the rules of the common law.
TRIAL BY JURY IN CIVIL CASES
The Right and the Characteristics of the Civil Jury
History.--On September 12, 1787, as the Convention was in its
final stages, Mr. Williamson of North Carolina ``observed to the House
that no provision was yet made for juries in Civil cases and suggested
the necessity of it.'' The comment elicited some support and the further
observation that because of the diversity of practice in civil trials in
the States it would be impossible to draft a suitable provision.\1\ When
on September 15 it was moved that a clause be inserted in Article III,
Sec. 2, to guarantee that ``a trial by jury shall be preserved as usual
in civil cases,'' this objection seems to have been the only one urged
in opposition and the motion was defeated.\2\ The omission, however, was
cited by many opponents of ratification and ``was pressed with an
urgency and zeal . . . well-nigh preventing its ratification.''\3\ A
guarantee of right to jury in civil cases was one of the amendments
urged on Congress by the ratifying conventions\4\ and it was included
from the first among Madison's proposals to the House.\5\ It does not
appear that the text
[[Page 1452]]
of the proposed amendment or its meaning was debated during its
passage.\6\
\1\2 M. Farrand, Records of the Federal Convention of 1787, at
587 (rev. ed. 1937).
\2\Id. at 628.
\3\J. Story, Commentaries on the Constitution of the United
States 1757 (1833). ``[I]t is a most important and valuable amendment;
and places upon the high ground of constitutional right the inestimable
privilege of a trial by jury in civil cases, a privilege scarcely
inferior to that in criminal cases, which is conceded by all to be
essential to political and civil liberty.'' Id. at 1762.
\4\J. Elliott, The Debates in the Several State Conventions on
the Adoption of the Federal Constitution 326 (2d ed. 1836) (New
Hampshire); 2 id. at 399-414 (New York); 3 id. at 658 (Virginia).
\5\1 Annals of Congress 436 (1789). ``In suits at common law,
between man and man, the trial by jury, as one of the best securities to
the rights of the people, ought to remain inviolate.''
\6\It is simply noted in 1 Annals of Congress 760 (1789), that
on August 18 the House ``considered and adopted'' the committee version:
``In suits at common law, the right of trial by jury shall be
preserved.'' On September 7, the Senate Journal states that this
provision was adopted after insertion of ``where the consideration
exceeds twenty dollars.'' 2 B. Schwartz, The Bill of Rights: A
Documentary History 1150 (1971).
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Composition and Functions of Civil Jury.--Traditionally, the
Supreme Court has treated the Seventh Amendment as preserving the right
of trial by jury in civil cases as it ``existed under the English common
law when the amendment was adopted.''\7\ The right was to ``a trial by a
jury of twelve men, in the presence and under the superintendence of a
judge empowered to instruct them on the law and to advise them on the
facts and (except in acquittal of a criminal charge) to set aside their
verdict if in his opinion it is against the law or the evidence.''\8\
Decision of the jury must be by unanimous verdict.\9\ In Colgrove v.
Battin,\10\ however, the Court by a five-to-four vote held that rules
adopted in a federal district court authorizing civil juries composed of
six persons were permissible under the Seventh Amendment and
congressional enactments. By the reference in the Amendment to the
``common law,'' the Court thought, ``the Framers of the Seventh
Amendment were concerned with preserving the right of trial by jury in
civil cases where it existed at common law, rather than the various
incidents of trial by jury.''\11\
\7\Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657
(1913); Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446-48 (1830).
\8\Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899).
\9\Maxwell v. Dow, 176 U.S. 581 (1900); American Publishing Co.
v. Fisher, 166 U.S. 464 (1897); Springville v. Thomas, 166 U.S. 707
(1897).
\10\413 U.S. 149 (1973). Justices Marshall and Stewart dissented
on constitutional and statutory grounds, id. at 166, while Justices
Douglas and Powell relied only on statutory grounds without reaching the
constitutional issue. Id. at 165, 188.
\11\Id. at 155-56. The Court did not consider what number less
than six, if any, would fail to satisfy the Amendment's requirements.
``What is required for a `jury' is a number large enough to facilitate
group deliberation combined with a likelihood of obtaining a
representative cross section of the community. . . . It is undoubtedly
true that at some point the number becomes too small to accomplish these
goals . . .'' Id. at 160 n.16. Application of similar reasoning has led
the Court to uphold elimination of the unanimity as well as the 12-
person requirement for criminal trials. See Williams v. Florida, 399
U.S. 78 (1970) (jury size); Apodaca v. Oregon, 406 U.S. 404 (1972)
(unanimity); and discussion supra pp.1408-10.
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The Amendment has for its primary purpose the preservation of
``the common law distinction between the province of the court and that
of the jury, whereby, in the absence of express or implied consent to
the contrary, issues of law are resolved by the court and issues of fact
are to be determined by the jury under appropriate
[[Page 1453]]
instructions by the court.''\12\ But it ``does not exact the retention
of old forms of procedure'' nor does it ``prohibit the introduction of
new methods of ascertaining what facts are in issue'' or new rules of
evidence.\13\ Those matters which were tried by a jury in England in
1791 are to be so tried today and those matters which, as in equity,
were tried by the judge in England in 1791 are to be so tried today,\14\
and when new rights and remedies are created ``the right of action
should be analogized to its historical counterpart, at law or in equity,
for the purpose of determining whether there is a right of jury trial,''
unless Congress has expressly prescribed the mode of trial.\15\
\12\Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657
(1935); Walker v. New Mexico & So. Pac. R.R., 165 U.S. 593, 596 (1897);
Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 497-99 (1931);
Dimick v. Schiedt, 293 U.S. 474, 476, 485-86 (1935).
\13\Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494,
498 (1931); Ex parte Peterson, 253 U.S. 300, 309 (1920).
\14\Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446-47 (1830);
Slocum v. New York Life Ins. Co., 228 U.S. 364, 377-78 (1913); Baltimore
& Carolina Line v. Redman, 295 U.S. 654, 657 (1935); Dimick v. Schiedt,
293 U.S. 474, 476 (1935). But see Ross v. Bernhard, 396 U.S. 531 (1970),
which may foreshadow a new analysis.
\15\Luria v. United States, 231 U.S. 9, 27-28 (1913).
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Courts in Which the Guarantee Applies.--The Amendment governs
only courts which sit under the authority of the United States,\16\
including courts in the territories\17\ and the District of
Columbia,\18\ and does not apply generally to state courts.\19\ But when
a state court is enforcing a federally created right, of which the right
to trial by jury is a substantial part, the States may not eliminate
trial by jury as to one or more elements.\20\ Ordinarily, a federal
court enforcing a state-created right will follow its own rules with
regard to the allocation of functions between judge and jury, a rule the
Court based on the ``interests'' of the federal court system, eschewing
reliance on the Seventh Amendment but noting its influence.\21\
\16\Pearson v. Yewdall, 95 U.S. 294, 296 (1877); Edwards v.
Elliott, 88 U.S. (21 Wall.) 532, 557 (1874); The Justices v. Murray, 76
U.S. (9 Wall.) 274, 277 (1870); Walker v. Sauvinet, 92 U.S. 90 (1876);
St. Louis & K.C. Land Co. v. Kansas City, 241 U.S. 419 (1916).
\17\Webster v. Reid, 52 U.S. (11 How.) 437, 460 (1851); Kennon
v. Gilmer, 131 U.S. 22, 28 (1889).
\18\Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899).
\19\Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211
(1916). See also Melancon v. McKeithen, 345 F. Supp. 105 (E.D.La.)
(three-judge court), aff'd. per curiam, 409 U.S. 943 (1972); Alexander
v. Virginia, 413 U.S. 836 (1973).
\20\Dice v. Akron, C. & Y. R.R., 342 U.S. 359 (1952). Four
dissenters contended that the ruling was contrary to the unanimous
decision in Bombolis.
\21\Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958)
(citing Herron v. Southern Pacific Co., 283 U.S. 91 (1931)).
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Waiver of the Right.--Parties may enter into a stipulation
waiving a jury and submitting the case to the court upon an agreed
[[Page 1454]]
statement of facts, even without any legislative provision for
waiver.\22\ Prior to adoption of the Federal Rules, Congress had, ``by
statute, provided for the trial of issues of fact in civil cases by the
court without the intervention of a jury, only when the parties waive
their right to a jury by a stipulation in writing.''\23\ Under the
Federal Rules of Civil Procedure, any party may make a timely demand for
a trial by jury of any issue triable of right by a jury by serving upon
the other parties a demand therefor in writing, and failure so to serve
a demand constitutes a waiver of the right.\24\ However, a waiver is not
to be implied from a request for a directed verdict.\25\
\22\Henderson's Distilled Spirits, 81 U.S. (14 Wall.) 44, 53
(1872); Rogers v. United States, 141 U.S. 548, 554 (1891); Parsons v.
Armor, 28 U.S. (3 Pet.) 413 (1830); Campbell v. Boyreau, 62 U.S. (21
How.) 223 (1859).
\23\Baylis v. Travellers' Ins. Co., 113 U.S. 316, 321 (1885).
The provision did not preclude other kinds of waivers, Duignan v. United
States, 274 U.S. 195, 198 (1927), though every reasonable presumption
was indulged against a waiver. Hodges v. Easton, 106 U.S. 408, 412
(1883).
\24\Fed. R. Civ. P. 38.
\25\Aetna Life Ins. Co. v. Kennedy, 301 U.S. 389 (1937); Fed. R.
Civ. P. 50(a).
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Application of the Amendment
Cases ``at Common Law''.--The coverage of the Amendment is
``limited to rights and remedies peculiarly legal in their nature, and
such as it was proper to assert in courts of law and by the appropriate
modes and proceedings of courts of law.''\26\ The term ``common law''
was used in contradistinction to suits in which equitable rights alone
were recognized at the time of the framing of the Amendment and
equitable remedies were administered.\27\ Illustrative of the Court's
course of decision on this subject are two unanimous decisions holding
that civil juries were required, one in a suit by a landlord to recover
possession of real property from a tenant allegedly behind on rent, the
other in a suit for damages for alleged racial discrimination in the
rental of housing in violation of federal law. In the former case, the
Court reasoned that its Seventh Amendment precedents ``require[ed] trial
by jury in actions unheard of at common law, provided that the action
involves rights and remedies of the sort traditionally enforced in an
action at law, rather than in an action at equity or admiralty.''\28\
The statutory cause of action, the Court found, had several counterparts
in the
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common law, all of which involved a right to trial by jury. In the
latter case, the plaintiff had argued that the Amendment was
inapplicable to new causes of action created by congressional action,
but the Court disagreed. ``The Seventh Amendment does apply to actions
enforcing statutory rights, and requires a jury trial upon demand, if
the statute creates legal rights and remedies, enforceable in an action
for damages in the ordinary courts of law.''\29\
\26\Shields v. Thomas, 59 U.S. (18 How.) 253, 262 (1856).
\27\Parsons v. Bedford, 28 U.S. (3 Pet.) 443, 447 (1830); Barton
v. Barbour, 104 U.S. 126, 133 (1881). Formerly, it did not apply to
cases where recovery of money damages was incidental to equitable relief
even though damages might have been recovered in an action at law. Clark
v. Wooster, 119 U.S. 322, 325 (1886); Pease v. Rathbun-Jones Eng. Co.,
243 U.S. 273, 279 (1917). But see Dairy Queen v. Wood, 369 U.S. 469
(1962), discussed infra, p.1459.
\28\Pernell v. Southall Realty, 416 U.S. 363 (1974).
\29\Curtis v. Loether, 415 U.S. 189, 194 (1974). ``A damage
action under the statute sounds basically in tort--the statute merely
defines a new legal duty and authorizes the court to compensate a
plaintiff for the injury caused by the defendants' wrongful breach.
. . . [T]his cause of action is analogous to a number of tort actions
recognized at common law.'' Id. at 195. See also Chauffeurs, Teamsters
and Helpers Local 391 v. Terry, 494 U.S. 558 (1990) (suit against union
for back pay for breach of duty of fair representation is a suit for
compensatory damages, hence plaintiff is entitled to a jury trial);
Wooddell v. International Bhd. of Electrical Workers Local 71, 112 S.
Ct. 494 (1991) (similar suit against union for money damages entitles
union member to jury trial; a claim for injunctive relief was incidental
to the damages claim).
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Omission of provision for a jury has been upheld in a number of
other cases on the ground that the suit in question was not a suit at
common law within the meaning of the Amendment, or that the issues
raised were not peculiarly legal in their nature.\30\
\30\Among such actions or issues were, e.g., (1) enforcement of
claims against the United States, McElrath v. United States, 102 U.S.
426, 440 (1880); see also Galloway v. United States, 319 U.S. 372, 388
(1943); (2) suit under a territorial statute authorizing a special
nonjury tribunal to hear claims against a municipality having no legal
obligation but based on moral obligation only, Guthrie National Bank v.
Guthrie, 173 U.S. 528, 534 (1899); see also United States v. Realty Co.,
163 U.S. 427, 439 (1896); New Orleans v. Clark, 95 U.S. 644, 653 (1877);
(3) cancellation of a naturalization certificate for fraud, Luria v.
United States, 231 U.S. 9, 27 (1913); (4) reversal of an order to deport
an alien, Gee Wah Lee v. United States, 25 F.2d 107 (5th Cir. 1928),
cert. denied, 277 U.S. 608 (1928); (5) damages for patent infringement,
Filer & Stowell Co. v. Diamond Iron Works, 270 F. 489 (2d Cir. 1921),
cert. denied, 256 U.S 691 (1921); (6) reversal of an award under the
Longshoremen's and Harbor Workers' Compensation Act, Crowell v. Benson,
285 U.S. 22, 45 (1932); and (7) reversal of a decision of customs
appraisers on the value of imports, Auffmordt v. Hedden, 137 U.S. 310,
329 (1890); (8) a summary disposition by referee in bankruptcy of issues
regarding voidable preferences as asserted and proved by the trustee,
Katchen v. Landy, 382 U.S. 323 (1966); and (9) a determination by a
judge in calculating just compensation in a federal eminent domain
proceeding of the issue as to whether the condemned lands were
originally within the scope of the government's project or were adjacent
lands later added to the plan, United States v. Reynolds, 397 U.S. 14
(1970).
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The amendment does not apply to cases in admiralty and maritime
jurisdiction, in which the trial is by a court without a jury,\31\ nor
does it reach statutory proceedings unknown to the common law, such as
an application to a court of equity to enforce an order
[[Page 1456]]
of an administrative body.\32\ Thus, when Congress committed to
administrative determination the finding of a violation of the
Occupational Safety and Health Act with a discretion to fix a fine for a
violation, the charged party being able to obtain judicial review of the
administrative proceeding in a federal court of appeal and the fine
being collectible in a suit in federal court, the argument that the
absence of a jury trial in the process for a charged party violated the
Seventh Amendment was unanimously rejected. ``At least in cases in which
`public rights' are being litigated--e.g., cases in which the Government
sues in its sovereign capacity to enforce public rights created by
statutes within the power of Congress to enact--the Seventh Amendment
does not prohibit Congress from assigning the factfinding function and
initial adjudication to an administrative forum with which the jury
would be incompatible.''\33\
\31\Parsons v. Bedford, 28 U.S. (3 Pet.) 443 (1830); Waring v.
Clarke, 46 U.S. (5 How.) 441, 460 (1847); Romero v. International
Terminal Operating Co., 358 U.S. 354 (1959). But see Fitzgerald v.
United States Lines, 374 U.S. 16 (1963).
\32\NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937).
See also ICC v. Brimson, 154 U.S. 447, 488 (1894); Yakus v. United
States, 321 U.S. 414, 447 (1944).
\33\Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 450 (1977).
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On the other hand, if Congress assigns such cases to Article III
courts, a jury may be required. In Tull v. United States,\34\ the Court
ruled that the Amendment requires trial by jury in civil actions to
determine liability for civil penalties under the Clean Water Act, but
not to assess the amount of penalty. The penal nature of the Clean Water
Act's civil penalty remedy distinguishes it from restitution-based
remedies available in equity courts, and therefore makes it a remedy of
the type that could be imposed only by courts of law.\35\ On the other
hand, a jury need not invariably determine the remedy in a trial in
which it must determine liability. Because the Court viewed assessment
of the amount of penalty as involving neither the ``substance'' nor a
``fundamental element'' of a common-law right to trial by jury, it held
permissible the Act's assignment of that task to the trial judge.
\34\481 U.S. 412 (1987).
\35\The statute itself specified only a maximum amount for the
penalty; the Court derived its ``punitive'' characterization from
indications in legislative history that Congress desired consideration
of the need for retribution and deterrence as well as the need for
restitution.
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More recently still, the Court relied on a broadened concept of
``public rights'' to define the limits of congressional power to assign
causes of action to tribunals in which jury trials are unavailable. In
Granfinanciera, S.A. v. Nordberg,\36\ the Court declared that Congress
``lacks the power to strip parties contesting matters of private right
of their constitutional right to a trial by jury.'' The Seventh
Amendment test, the Court indicated, is the same as the Article III test
for whether Congress may assign adjudication of a
[[Page 1457]]
claim to a non-Article III tribunal.\37\ As a general matter, ``public
rights'' involve ```the relationship between the Government and persons
subject to its authority,''' while ``private rights'' relate to ```the
liability of one individual to another.'''\38\ While finding room for
``some debate,'' the Court determined that a bankruptcy trustee's right
to recover for a fraudulent conveyance ``is more accurately
characterized as a private rather than a public right,'' at least where
the defendant had not submitted a claim against the bankruptcy
estate.\39\
\36\492 U.S. 33, 51-52 (1989).
\37\``[I]f a statutory cause of action . . . is not a `public
right' for Article III purposes, then Congress may not assign its
adjudication to a specialized non-Article III court lacking `the
essential attributes of the judicial power.' And if the action must be
tried under the auspices of an Article III court, then the Seventh
Amendment affords the parties the right to a jury trial whenever the
cause of action is legal in nature. Conversely, if Congress may assign
the adjudication of a statutory cause of action to a non-Article III
tribunal, then the Seventh Amendment poses no independent bar to the
adjudication of that action by a nonjury factfinder.'' Id. at 53-54
(citation omitted).
\38\Id. at 51 n.8 (quoting Crowell v. Benson, 285 U.S. 22, 50,
51 (1932)). The Court qualified certain statements in Atlas Roofing and
in the process refined its definition of ``public rights.'' There are
some ``public rights'' cases, the Court explained, in which ``the
Federal Government is not a party in its sovereign capacity,'' but which
involve ``statutory rights that are integral parts of a public
regulatory scheme.'' It is in cases of this nature that Congress may
``dispense with juries as factfinders through its choice of an
adjudicative forum.'' This does not mean, however, that Congress may
assign ``at least the initial factfinding in all cases involving
controversies entirely between private parties to administrative
tribunals or other tribunals not involving juries, so long as they are
established as adjuncts to Article III courts.'' 492 U.S. at 55 n.10
(emphasis added).
\39\Id. at 55. On the other hand, a creditor who does submit a
claim against the bankruptcy estate subjects himself to the bankruptcy
court's equitable power, and is not entitled to a jury trial when
subsequently sued by the bankruptcy trustee to recover preferential
monetary transfers. Langenkamp v. Culp, 498 U.S. 42 (1990).
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The Continuing Law-Equity Distinction.--The use of the term
``common law'' in the Amendment as indicating those cases in which the
right to jury trial was to be preserved reflected, of course, the
division of the English and United States legal systems into separate
law and equity jurisdictions, in which actions cognizable in courts of
law generally were triable to a jury while in equity there was no right
to a jury. In the federal court system there were unitary courts having
jurisdiction in both law and equity, but distinct law and equity
procedures, including the use or nonuse of the jury. Adoption of the
Federal Rules of Civil Procedure in 1938 merged law and equity into a
single civil jurisdiction and established uniform rules of procedure.
Legal and equitable claims which previously had to be brought as
separate causes of action on different ``sides'' of the court could now
be joined in a single action, and in some instances, such as compulsory
counterclaims, had to be joined in one action.\40\ But the traditional
distinction be
[[Page 1458]]
tween law and equity for purposes of determining when there was a
constitutional right to trial by jury remained and led to some
difficulty.\41\
\40\5 J. Moore, Federal Practice Sec. Sec. 38.01-38.05 (2d ed.
1971).
\41\Under the old equity rules it had been held that the
absolute right to a trial of the facts by a jury could not be impaired
by any blending with a claim, properly cognizable at law, of a demand
for equitable relief in aid of the legal action or during its pendency.
Hipp v. Babin, 60 U.S. (19 How.) 271, 278 (1857). The Seventh Amendment
was interpreted to mean that equitable and legal issues could not be
tried in the same suit, so that such aid in the federal courts had to be
sought in separate proceedings. Scott v. Neely, 140 U.S. 106, 109
(1891); Bennett v. Butterworth, 52 U.S. (11 How.) 669 (1850); Lewis v.
Cocks, 90 U.S. (23 Wall.) 466, 470 (1874); Killian v. Ebbinghaus, 110
U.S. 568, 573 (1884); Buzard v. Houston, 119 U.S. 347, 351 (1886). Where
an action at law evoked an equitable counterclaim the trial judge would
order the legal issues to be separately tried after the disposition of
the equity issues. In this procedure, however, res judicata and
collateral estoppel could operate so as to curtail the litigant's right
to a jury finding on factual issues common to both claims. But priority
of scheduling was considered to be a matter of discretion. Federal
statutes prohibiting courts of the United States from sustaining suits
in equity where the remedy was complete at law served to guard the right
of trial by jury and were liberally construed. Schoenthal v. Irving
Trust Co., 287 U.S. 92, 94 (1932).
Nor was the distinction between law and equity to be obliterated
by state legislation. Thompson v. Railroad Companies, 73 U.S. (6 Wall.)
134 (1868). So, where state law, in advance of judgment, treated the
whole proceeding upon a simple contract, including determination of
validity and of amount due, as an equitable proceeding, it brought the
case within the federal equity jurisdiction upon removal. Ascertainment
of plaintiff's demand being properly by action at law, however, the fact
that the equity court had power to summon a jury on occasion did not
afford an equivalent of the right of trial by jury secured by the
Seventh Amendment. Whitehead v. Shattuck, 138 U.S. 146 (1891); Buzard v.
Houston, 119 U.S. 347 (1886); Greeley v. Lowe, 155 U.S. 58, 75 (1894).
But where state law gave an equitable remedy, such as to quiet title to
land, the federal courts enforced it, if it did not obstruct the rights
of the parties as to trial by jury. Clark v. Smith, 38 U.S. (13 Pet.)
195 (1839); Holland v. Challen, 110 U.S. 15 (1884); Reynolds v.
Crawfordsville Bank, 112 U.S. 405 (1884); Chapman v. Brewer, 114 U.S.
158 (1885); Cummings v. National Bank, 101 U.S. 153, 157 (1879); United
States v. Landram, 118 U.S. 81 (1886); More v. Steinbach, 127 U.S. 70
(1888). Cf. Ex parte Simons, 247 U.S. 321 (1918).
By the inclusion in the Law and Equity Act of 1915 of
Sec. 274(b) of the Judicial Code, 38 Stat. 956, the transfer of cases to
the other side of the court was made possible. The new procedure
permitted legal questions arising in an equity action to be determined
therein without sending the case to the law side. This section also
permitted equitable defenses to be interposed in an action at law. The
same order was preserved as under the system of separate courts. The
equitable issues were disposed of first, and if a legal issue remained,
it was triable by a jury. Enelow v. New York Life Ins. Co., 293 U.S. 379
(1935). See also Liberty Oil Co. v. Condon Bank, 260 U.S. 235 (1922).
There was no provision for legal counterclaims in an equitable action,
for the reason that Equity Rule 30, requiring the answer to a bill in
equity to state any counterclaim arising out of the same transaction,
was not intended to change the line between law and equity and was
construed as referring to equitable counterclaims only. American Mills
Co. v. American Surety Co., 260 U.S. 360, 364 (1922); Stamey v. United
States, 37 F.2d 188 (W.D. Wash. 1929). Equitable jurisdiction existing
at the time of the filing of the bill was not disturbed by the
subsequent availability of legal remedies, and the scheduling was
discretionary. American Life Ins. Co. v. Stewart, 300 U.S. 203 (1937).
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This difficulty has been resolved by stressing the fundamental
nature of the jury trial right and protecting it against diminution
[[Page 1459]]
through resort to equitable principles. In Beacon Theatres v.
Westover,\42\ the Court held that a district court erred in trying all
issues itself in an action in which the plaintiff sought a declaratory
judgment and an injunction barring the defendant from instituting an
antitrust action against it, and the defendant had filed a counterclaim
alleging violation of the antitrust laws and asking for treble damages.
It did not matter, the Court ruled, that the equitable claims had been
filed first and the law counterclaims involved allegations common to the
equitable claims. Subsequent jury trial of these issues would probably
be precluded by collateral estoppel, hence ``only under the most
imperative circumstances which in view of the flexible procedures of the
Federal Rules we cannot now anticipate, can the right to a jury trial of
legal issues be lost through prior determination of equitable
claims.''\43\ Then in Dairy Queen v. Wood,\44\ in which the plaintiff
sought several types of relief, including an injunction and an
accounting for money damages, the Court held that, even though the claim
for legal relief was incidental to the equitable relief sought, the
Seventh Amendment required that the issues pertaining to that legal
relief be tried before a jury, because the primary rights being
adjudicated were legal in character. Thus, the rule that emerged was
that legal claims must be tried before equitable ones and before a jury
if the litigant so wished.\45\
\42\359 U.S. 500 (1959).
\43\Id. at 510-11.
\44\369 U.S. 469 (1962).
\45\If legal and equitable claims are joined, and the court
erroneously dismisses the legal claims and decides common issues in the
equitable action, the plaintiff cannot be collaterally estopped from
relitigating those common issues in a jury trial. Lytle v. Household
Manufacturing, Inc., 494 U.S. 545 (1990).
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In Ross v. Bernhard,\46\ the Court further held that the right
to a jury trial depends on the nature of the issue to be tried rather
than the procedural framework in which it is raised. The case involved a
stockholder derivative action,\47\ which has always been considered to
be a suit in equity. The Court agreed that the action
[[Page 1460]]
was equitable but asserted that it involved two separable claims. The
first, the stockholder's standing to sue for a corporation is an
equitable issue; the second, the corporation's claim asserted by the
stockholder, may be either equitable or legal. Because the 1938 merger
of law and equity in the federal courts eliminated any procedural
obstacles to transferring jurisdiction to the law side once the
equitable issue of standing was decided, the Court continued, if the
corporation's claim being asserted by the stockholder was legal in
nature, it should be heard on the law side and before a jury.\48\
Whether this analysis will be followed in other areas so that the right
to a jury trial extends to all legal issues in actions formerly within
equity's concurrent jurisdiction is a question now open.\49\
\46\396 U.S. 531 (1970).
\47\The stockholders' derivative action is a creation of equity
made necessary by the traditional concept of ``the corporate entity'' or
the ``concept of separate personality.'' That is, the corporation is an
entity distinct and separate from its shareholders. Thus, while
shareholders were relieved from unlimited liability for corporate
liabilities, the complementary result was that harm to the corporation
did not confer any right of action upon a shareholder to sue to right
that harm. But if the harm were caused by the abuse of those who managed
and controlled the corporation, the corporation naturally would not
proceed against them and the common law courts would not allow the
shareholders to bring an action running to the ``separate personality''
of the corporation; equity thus permitted a derivative action in which
the shareholder is permitted to set in motion the adjudication of a
cause of action belonging to the corporation. Prunty, The Shareholders'
Derivative Suit: Notes on Its Derivation, 32 N.Y.U. L. Rev. 980 (1957).
\48\Justices Stewart and Harlan and Chief Justice Burger
dissented, arguing that the Seventh Amendment did not expand the right
to a jury trial, that the Rules simply preserved the right as it had
existed, and that it was error to think that the two could somehow
``magically interact'' to enlarge the right in a way that neither did
alone. Ross v. Bernhard, 396 U.S. 531, 543 (1970).
\49\Among the possibilities in which a legal right was
enforceable in equity in the absence of an adequate remedy at law are
suits to compel specific performance of a contract, suits for
cancellation of a contract, and suits to enjoin tortious action. On
Ross' implications, see J. Moore, Federal Practice Sec. Sec. 38.11[8.-
8], 38.11[9] (2d ed. 1971).
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Procedures Limiting Jury's Role.--As was noted above, the
primary purpose of the Amendment was to preserve the historic line
separating the province of the jury from that of the judge, without at
the same time preventing procedural improvement which did not transgress
this line. Elucidating this formula, the Court has achieved the
following results: it is constitutional for a federal judge, in the
course of trial, to express his opinion upon the facts, provided all
questions of fact are ultimately submitted to the jury,\50\ to call the
jury's attention to parts of the evidence he deems of special
importance,\51\ being careful to distinguish between matters of law and
matters of opinion in relation thereto,\52\ to inform the jury when
there is not sufficient evidence to justify a verdict, that such is the
case,\53\ to require a jury to answer specific interrogatories in
addition to rendering a general verdict,\54\ to direct the
[[Page 1461]]
jury, after the plaintiff's case is all in, to return a verdict for the
defendant on the ground of the insufficiency of the evidence,\55\ to set
aside a verdict which in his opinion is against the law or the evidence,
and order a new trial,\56\ to refuse defendant a new trial on the
condition, accepted by plaintiff, that the latter remit a portion of the
damages awarded him,\57\ but not, on the other hand, to deny plaintiff a
new trial on the converse condition, although defendant accepted it.\58\
Nor can a Court of Appeals reverse the jury's finding on the issue of
reasonableness of petitioner's conduct, in an indemnity action for
damages respondent had paid petitioner's employee, on the ground that as
a matter of law petitioner had not acted reasonably; ``[u]nder the
Seventh Amendment, that issue should have been left to the jury's
determination.''\59\
\50\Vicksburg & Meridian R.R. v. Putnam, 118 U.S. 545, 553
(1886); United States v. Philadelphia & Reading R.R., 123 U.S. 113, 114
(1887).
\51\Vicksburg & Meridian R.R. v. Putnam, 118 U.S. 545 (1886)
(citing Carver v. Jackson, 29 U.S. (4 Pet.) 1, 80 (1830); Magniac v.
Thompson, 32 U.S. (7 Pet.) 348, 390 (1833); Mitchell v. Harmony, 54 U.S.
(13 How.) 115, 131 (1852); Transportation Line v. Hope, 95 U.S. 297, 302
(1877)).
\52\Games v. Dunn, 39 U.S. (14 Pet.) 322, 327 (1840).
\53\Sparf and Hansen v. United States, 156 U.S. 51, 99-100
(1895); Pleasants v. Fant, 22 Wall, (89 U.S.) 116, 121 (1875); Randall
v. Baltimore & Ohio R.R., 109 U.S. 478, 482 (1883); Meehan v. Valentine,
145 U.S. 611, 625 (1892); Coughran v. Bigelow, 164 U.S. 301 (1896).
\54\Walker v. New Mexico So. Pac. R.R., 165 U.S. 593, 598
(1897).
\55\Treat Mfg. Co. v. Standard Steel & Iron Co., 157 U.S. 674
(1895); Randall v. Baltimore & Ohio R.R., 109 U.S. 478, 482 (1883), and
cases cited therein.
\56\Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1889).
\57\Arkansas Cattle Co. v. Mann, 130 U.S. 69, 74 (1889).
\58\Dimick v. Schiedt, 293 U.S. 474, 476-78 (1935).
\59\International Terminal Operating Co. v. N. V. Nederl. Amerik
Stoomv, Maats., 393 U.S. 74, 75 (1968). But see Neely v. Martin K. Eby
Construction Co., 386 U.S. 317 (1967), where the Court held that the
Seventh Amendment does not bar an appellate court from granting a
judgment n. o. v. insofar as ``there is no greater restriction on the
province of the jury when an appellate court enters judgment n. o. v.
than when a trial court does.'' Id. at 322.
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Directed Verdicts.--In 1913 the Court in Slocum v. New York Life
Ins. Co.,\60\ held that a federal appeals court lacked authority to
order the entry of a judgment contrary to the verdict in a case in which
the federal trial court should have directed a verdict for one party,
but the jury had found for the other party contrary to the evidence; the
only course open to either court was to order a new trial. While plainly
in accordance with the common law as it stood in 1791, the five-to-four
decision was subjected to a heavy fire of professional criticism based
on convenience and urging recognition of capacity for growth in the
common law.\61\ Slocum was then impaired, if not completely undermined,
by subsequent holdings.
\60\228 U.S. 364 (1913).
\61\F. James, Civil Procedure 332-33 & n.8 (1965).
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In the first of these cases, the Court held that a trial court
had the right to enter a judgment for the plaintiff on the verdict of
the jury after having reserved decision on a motion by the defendant for
dismissal on the ground of insufficient evidence.\62\ The Court
distinguished Slocum while noting that its ruling qualified some of its
assertions in Slocum.\63\ In the second case\64\ the Court sustained a
United States district court in rejecting the defendant's
[[Page 1462]]
motion for dismissal and in peremptorily directing a verdict for the
plaintiff. The Supreme Court held that there was ample evidence to
support the verdict and that the trial court, in following Arkansas
procedure in the diversity action, had acted consistently with the
Federal Conformity Act.\65\ In the third case,\66\ which involved an
action against the Government for benefits under a war risk insurance
policy which had been allowed to lapse, the trial court directed a
verdict for the Government on the ground of the insufficiency of the
evidence, and was sustained in so doing by both the appeals court and
the Supreme Court. Three Justices, speaking by Justice Black, dissented
in an opinion in which it is asserted that ``today's decision marks a
continuation of the gradual process of judicial erosion which in one-
hundred-fifty years has slowly worn away a major portion of the
essential guarantee of the Seventh Amendment.''\67\ That the Court
should experience occasional difficulty in harmonizing the idea of
preserving the historic common law covering the relations of judge and
jury with the notion of a developing common law is not surprising.\68\
\62\Baltimore & Carolina Line v. Redman, 295 U.S. 654 (1935).
\63\Id. at 661. The Court's opinions in both Redman and Slocum
were authored by Justice Van Devanter.
\64\Lyon v. Mutual Benefit Ass'n, 305 U.S. 484 (1939).
\65\Ch. 255, Sec. 5, 17 Stat. 197 (1872), now superseded by the
Federal Rules of Civil Procedure.
\66\Galloway v. United States, 319 U.S. 372, 389 (1943), wherein
the Court said ``the practice has been approved explicitly in the
promulgation of the Federal Rules of Civil Procedure,'' citing Berry v.
United States, 312 U.S. 450 (1941). In the latter case the Court
remarked that the new rule has given ``district judges, under certain
circumstances, . . . the right (but not the mandatory duty) to enter a
judgment contrary to the jury's verdict without granting a new trial.
But that rule has not taken away from juries and given to judges any
part of the exclusive power of juries to weigh evidence and determine
contested issues of facts--a jury being the constitutional tribunal
provided for trying facts in courts of law.'' Id. at 452-53.
\67\319 U.S. 372, 397. The case, being a claim against the
United States, need not have been tried by a jury except for the
allowance of Congress.
\68\See, e.g., Neely v. Martin K. Eby Construction Co., Inc.,
386 U.S. 317 (1967), interpreting Rules 50(b), 50(c)(2) and 50(d) of the
Federal Rules of Civil Procedure, as well as the Seventh Amendment.
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Jury Trial Under the Federal Employers' Liability Act.--One
aspect of the problem of delineating the respective provinces of judge
and jury divided the Justices for a lengthy period but now appears
quiescent--cases arising under the Federal Employers' Liability Act. The
argument was frequently couched by the majority in terms of protecting
the function of the jury from usurpation by judges intent on subverting
and limiting remedial legislation enacted by Congress,\69\ and by the
minority in terms of the costs to
[[Page 1463]]
the Supreme Court in time and effort spent in evaluating the quantum of
evidence necessary to create a jury question.\70\
\69\E.g., Tiller v. Atlantic Coast Line R.R., 318 U.S. 54
(1943), in which Justice Black's opinion of the Court initiated the line
of cases here considered; Bailey v. Central Vermont Ry., 319 U.S. 350
(1943); Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29 (1944). See
Rogers v. Missouri Pacific R.R., 352 U.S. 500, 507-510 (1957). Trial by
jury is ``part and parcel of the remedy afforded railroad workers''
under the FELA. Bailey v. Central Vermont Ry., supra, 354. ``The
difference between the majority and minority of the Court in our
treatment of FELA cases concerns the degree of vigilance we should
exercise in safeguarding the jury trial--guaranteed by the Seventh
Amendment.'' Harris v. Pennsylvania R.R., 361 U.S. 15, 17 (1959)
(Justice Douglas concurring). ``[T]his Court is vigilant to exercise its
power of review . . . to correct instances of improper administration of
the Act and to prevent its erosion by narrow and niggardly
construction.'' Rogers v. Missouri Pacific R.R., supra, at 509.
\70\Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524 (1957)
(Justice Frankfurter dissenting), contains a lengthy review and critique
of the Court's practice.
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Although the considerations present in the FELA cases were not
inherently different from those in any civil case where the direction of
a verdict or a decision of an issue by the court may raise sub silentio
the issue whether the Seventh Amendment right to a jury trial has been
impaired by court usurpation of the jury function, cases under the FELA,
which retained the common-law requirements of negligence as a
prerequisite to recovery, involved peculiarly difficult decisions as to
the adequacy of proof of negligence. ``Special and important reasons for
the grant of certiorari in these cases are certainly present,'' the
Court wrote in a leading case, ``when lower federal and state courts
persistently deprive litigants of their right to a jury
determination.''\71\ The operating test was: ``Under this statute the
test of a jury case is simply whether the proofs justify with reason the
conclusion that employer negligence played any part, even the slightest,
in producing the injury or death for which damages are sought. It does
not matter that, from the evidence, the jury may also with reason, on
ground of probability, attribute the result to other causes, including
the employee's contributory negligence. Judicial appraisal of the proofs
to determine whether a jury question is presented is narrowly limited to
the single inquiry whether, with reason, the conclusion may be drawn
that negligence of the employer played any part at all in the injury or
death. Similar issues have arisen under such statutes as the Jones
Act\72\ and the Safety Appliance Act.\73\
\71\Rogers v. Missouri Pacific R.R., 352 U.S. 500, 510 (1957).
\72\Schulz v. Pennsylvania R.R., 350 U.S. 523 (1956); Ferguson
v. Moore-McCormack Lines, 352 U.S. 521 (1957); Michalic v. Cleveland
Tankers, 364 U.S. 325 (1960). See also Senko v. La Crosse Dredging
Corp., 352 U.S. 370 (1957); A. & G. Stevedores v. Ellerman Lines, 369
U.S. 355 (1962).
\73\Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 525 n.2
(1957) (Justice Frankfurter dissenting).
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``Judges are to fix their sights primarily to make that
appraisal and, if that test is met, are bound to find that a case for
the jury is made out whether or not the evidence allows the jury a
choice of other probabilities.''\74\ A persistent dissent in the line of
cases
[[Page 1464]]
expressed the fear that in FELA cases ``anything that a jury says goes,
with the consequences that all meaningful judicial supervision over jury
verdicts in such cases has been put at an end. . . . If so, . . . the
time has come when the Court should frankly say so. If not, then the
Court should at least give expression to the standards by which the
lower courts are to be guided in these cases.''\75\
\74\Id. at 506-07. The cases are collected id. at 510 n.26. The
cases are tabulated and categorized in Wilkerson v. McCarthy, 336 U.S.
53, 68-73 (1949) (Justice Douglas concurring), and Harris v.
Pennsylvania R.R., 361 U.S. 15, 16-25 (1959). See also Harrison v.
Missouri Pacific R.R., 372 U.S. 248 (1963); Basham v. Pennsylvania R.R.,
372 U.S. 699 (1963).
\75\Harris v. Pennsylvania R.R., 361 U.S. 15, 27-28 (1959)
(Justice Harlan dissenting). See also Ferguson v. Moore-McCormack Lines,
352 U.S. 521, 524 (1957) (Justice Frankfurter dissenting); Dick v. New
York Life Ins. Co., 359 U.S. 437, 447 (1959) (Justice Frankfurter
dissenting).
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Appeals From State Courts to the Supreme Court
The clause of the Amendment prohibiting the re-examination of
any fact found by a jury is not restricted in its application to suits
at common law tried before juries in courts of the United States. It
applies equally to a case tried before a jury in a state court and
brought to the Supreme Court on appeal.\76\ Note, however, that the
Court has frequently indicated that in cases involving a claim of a
denial of constitutional rights it is free to examine and review the
evidence upon which lower court conclusions are based, a position that
under some circumstances could conflict with the principle of jury
autonomy.\77\
\76\The Justices v. Murray, 76 U.S. (9 Wall.) 274, 278 (1870);
Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 242-46 (1897).
\77\See Time, Inc. v. Pape, 401 U.S. 279, 284-92 (1971), and
cases cited therein.