# Chauffeurs Teamsters and Helpers Local No. 391 v. Terry/Concurrence Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Brennan Stevens
* Dissenting Opinion Kennedy
Justice BRENNAN, concurring in part and concurring in the judgment.
I agree with the Court that respondents seek a remedy that is legal in nature and that the Seventh Amendment entitles respondents to a jury trial on their duty of fair representation claims. I therefore join Parts I, II, III-B, and IV of the Court's opinion. I do not join that part of the opinion which reprises the particular historical analysis this Court has employed to determine whether a claim is a "Sui[t] at common law" under the Seventh Amendment, ante, at 564, because I believe the historical test can and should be simplified.
The current test, first expounded in Curtis v. Loether, 415 U.S. 189, 194, 94 S.Ct. 1005, 1008, 39 L.Ed.2d 260 (1974), requires a court to compare the right at issue to 18th-century English forms of action to determine whether the historically analogous right was vindicated in an action at law or in equity, and to examine whether the remedy sought is legal or equitable in nature. However, this Court, in expounding the test, has repeatedly discounted the significance of the analogous form of action for deciding where the Seventh Amendment applies. I think it is time we dispense with it altogether. I would decide Seventh Amendment questions on the basis of the relief sought. If the relief is legal in nature, i.e., if it is the kind of relief that historically was available from courts of law, I would hold that the parties have a constitutional right to a trial by jury unless Congress has permissibly delegated the particular dispute to a non-Article III decisionmaker and jury trials would frustrate Congress' purposes in enacting a particular statutory scheme.
I believe that our insistence that the jury trial right hinges in part on a comparison of the substantive right at issue to forms of action used in English courts 200 years ago needlessly convolutes our Seventh Amendment jurisprudence. For the past decade and a half, this Court has explained that the two parts of the historical test are not equal in weight, that the nature of the remedy is more important than the nature of the right. See ante at 565; Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42, 109 S.Ct. 2782, 2790, 106 L.Ed.2d 26 (1989); Tull v. United States, 481 U.S. 412, 421, 107 S.Ct. 1831, 1837, 95 L.Ed.2d 365 (1987); Curtis v. Loether, supra, 415 U.S., at 196, 94 S.Ct., at 1009. Since the existence of a right to jury trial therefore turns on the nature of the remedy, absent congressional delegation to a specialized decisionmaker, there remains little purpose to our rattling through dusty attics of ancient writs. The time has come to borrow William of Occam's razor and sever this portion of our analysis.
We have long acknowledged that, of the factors relevant to the jury trial right, comparison of the claim to ancient forms of action, "requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply." Ross v. Bernhard, 396 U.S. 531, 538, n. 10, 90 S.Ct. 733, 738, n. 10, 24 L.Ed.2d 729 (1970). Requiring judges, with neither the training nor time necessary for reputable historical scholarship, to root through the tangle of primary and secondary sources to determine which of a hundred or so writs is analogous to the right at issue has embroiled courts in recondite controversies better left to legal historians. For example, in Granfinanciera, S.A., supra, decided last Term, both Justice WHITE, in dissent, and I, writing for the Court, struggled with the question whether an equity court would have heard the suit that was comparable to the modern statutory action at issue. I quoted Professor Garrard Glenn. Id., at 44, 109 S.Ct., at 2791. Justice WHITE countered that "[o]ther scholars have looked at the same history and come to a different conclusion. Still others have questioned the soundness of the distinction that Professor Glenn drew. . . . Trying to read the ambiguous history concerning fraudulent conveyance actions in equity . . . has perplexed jurists in each era, who have come to conflicting decisions each time that the question has found relevance." Id., at 85, 109 S.Ct., at 2813 (footnote omitted). I countered with an item-by-item evaluation of Justice WHITE's sources. See id., at 47, n. 6, 109 S.Ct., at 2793, n. 6.
To be sure, it is neither unusual nor embarrassing for members of a court to disagree and disagree vehemently. But it better behooves judges to disagree within the province of judicial expertise. Furthermore, inquiries into the appropriate historical analogs for the rights at issue are not necessarily susceptible of sound resolution under the best of circumstances. As one scholar observes: "[T]he line between law and equity (and therefore between jury and non-jury trial) was not a fixed and static one. There was a continual process of borrowing by one jurisdiction from the other; there were less frequent instances of a sloughing off of older functions. . . . The borrowing by each jurisdiction from the other was not accompanied by an equivalent sloughing off of functions. This led to a very large overlap between law and equity." James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655, 658-659 (1963).
In addition, modern statutory rights did not exist in the 18th century, and even the most exacting historical research may not elicit a clear historical analog. The right at issue here, for example, is a creature of modern labor law quite foreign to Georgian England. See ante, at 565-566, Justice Stewart recognized the perplexities involved in this task in his dissent in Ross v. Bernhard, supra, 396 U.S., at 550, 90 S.Ct., at 744, albeit drawing a different conclusion. "The fact is," he said, "that there are, for the most part, no such things as inherently 'legal issues' or inherently 'equitable issues.' There are only factual issues, and, 'like chameleons [they] take their color from surrounding circumstances.' Thus, the Court's 'nature of the issue' approach is hardly meaningful." I have grappled with this kind of inquiry for three decades on this Court and have come to the realization that engaging in such inquiries is impracticable and unilluminating.
To rest the historical test required by the Seventh Amendment solely on the nature of the relief sought would not, of course, offer the federal courts a rule that is in all cases self-executing. Courts will still be required to ask which remedies were traditionally available at law and which only in equity. But this inquiry involves fewer variables and simpler choices, on the whole, and is far more manageable than the scholasticist debates in which we have been engaged. Moreover, the rule I propose would remain true to the Seventh Amendment, as it is undisputed that, historically, "[j]urisdictional lines [between law and equity] were primarily a matter of remedy." McCoid, Procedural Reform and the Right to Jury Trial: A Study of Beacon Theaters, Inc. v. Westover, 116 U.Pa.L.Rev. 1 (1967). See also Redish, Seventh Amendment Right to Jury Trial: A Study in the Irrationality of Rational Decision Making, 70 Nw.U.L.Rev. 486, 490 (1975) ("In the majority of cases at common law, the equitable or legal nature of a suit was determined not by the substantive nature of the cause of action but by the remedy sought").
This is not to say that the resulting division between claims entitled to jury trials and claims not so entitled would exactly mirror the division between law and equity in England in 1791. But it is too late in the day for this Court to profess that the Seventh Amendment preserves the right to jury trial only in cases that would have been heard in the British law courts of the 18th century. See, e.g., Curtis v. Loether, 415 U.S., at 193, 94 S.Ct., at 1007 ("Although the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time"); Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) (rejecting the relevance of the chancellor's historic ability to decide legal claims incidental to a case brought in equity and holding that, in mixed cases, the parties are not only entitled to a jury trial on the legal claims but that this jury trial must precede a decision on the equitable claims-with the attendant collateral-estoppel effects); Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970) (requiring a jury trial on the legal issues in a shareholders' derivative suit even though the procedurally equivalent suit in the 18th century would have been heard only in equity).
Indeed, given this Court's repeated insistence that the nature of the remedy is always to be given more weight than the nature of the historically analogous right, it is unlikely that the simplified Seventh Amendment analysis I propose will result in different decisions than the analysis in current use. In the unusual circumstance that the nature of the remedy could be characterized equally as legal or equitable, I submit that the comparison of a contemporary statutory action unheard of in the 18th century to some ill-fitting ancient writ is too shaky a basis for the resolution of an issue as significant as the availability of a trial by jury. If, in the rare case, a tie breaker is needed, let us break the tie in favor of jury trial.
What Blackstone described as "the glory of the English law" and "the most transcendent privilege which any subject can enjoy," 3 W. Blackstone, Commentaries *379, was crucial in the eyes of those who founded this country. The encroachment on civil jury trial by colonial administrators was a "deeply divisive issue in the years just preceding the outbreak of hostilities between the colonies and England," and all 13 States reinstituted the right after hostilities ensued. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn.L.Rev. 639, 654-655 (1973). "In fact, '[t]he right to trial by jury was probably the only one universally secured by the first American constitutions.' " Id., at 655 (quoting L. Levy, Freedom of Speech and Press in Early American History-Legacy of Suppression 281 (1963 reprint)). Fear of a Federal Government that had not guaranteed jury trial in civil cases, voiced first at the Philadelphia Convention in 1787 and regularly during the ratification debates, was the concern that precipitated the maelstrom over the need for a bill of rights in the United States Constitution. Wolfram, supra, at 657-660.
This Court has long recognized the caliber of this right. In Parsons v. Bedford, 3 Pet. 433, 446, 7 L.Ed. 732 (1830), Justice Story stressed: "The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy." Similarly, in Jacob v. New York City, 315 U.S. 752, 752-753, 62 S.Ct. 854, 854-855, 86 L.Ed. 1166 (1942), we said that "[t]he right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence . . . [a] right so fundamental and sacred to the citizen [that it] should be jealously guarded by the courts."
We can guard this right and save our courts from needless and intractable excursions into increasingly unfamiliar territory simply by retiring that prong of our Seventh Amendment test which we have already cast into a certain doubt. If we are not prepared to accord the nature of the historical analog sufficient weight for this factor to affect the outcome of our inquiry, except in the rarest of hypothetical cases, what reason do we have for insisting that federal judges proceed with this arduous inquiry? It is time we read the writing on the wall, especially as we ourselves put it there.

## Notes

* ↑ I therefore also do not join Part III-A of Justice MARSHALL's opinion because it considers which 18th-century actions are comparable to the modern-day statutory claim brought here.
* ↑ As the majority notes, ante, at 565, n. 4, where Congress has delegated a particular claim to an administrative agency or specialized court of equity, a court must consider whether the delegation is a permissible one and "whether jury trials would impair the functioning of the legislative scheme." Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42, n. 4, 109 S.Ct. 2782, 2790, n. 4, 106 L.Ed.2d 26 (1989). These questions are not implicated in this case, as it is undisputed that an action for breach of the duty of fair representation may be brought in an Article III court. Ante, at 565, n. 4.
* ↑ Even where Congress has assigned resolution of a dispute to a specialized forum, the right to a jury trial does not turn on whether the analogous 18th-century action was legal or equitable. As we explained in Granfinanciera, S.A., supra, at 42 and n. 4, 109 S.Ct., at 2790 and n. 4, a court first looks to the analogous historical form of action and the nature of the relief sought, alloting greater weight to the nature of the relief. If this inquiry leads the court to conclude that the party is entitled to a jury trial, the court must consider whether the party is asserting a public right or private right-a distinction contingent on the government's role in creating the right, see 492 U.S., at 42, n. 4, 109 S.Ct., at 2790, n. 4 and whether jury trials would impair the functioning of the legislative scheme. The result of the search for a historical analog is subordinate to the nature of the relief sought and irrelevant to the subsequent inquiry.
* ↑ The lower courts have not had an easier time of it. In Damsky v. Zavatt, 289 F.2d 46 (CA2 1961), Judge Friendly, writing for the majority, admitted that his exegesis of the history of the Court of Exchequer from the 12th to the 18th century "may seem to reek unduly of the study." Id., at 48. Judge Clark, in dissent, quipped " 'if not of the museum,' " id., at 59, and denounced the majority for constructing its argument of "unreal and unjustified" steps beginning with the attachment to the claim of "an inapt label, namely, that of the writ of debt," which "as set forth, say, in Chitty" did not look to Judge Clark like the modern statutory tax claims at issue. Ibid. He called this a "venture in nomenclature" and berated the majority for its fast reliance on "somewhat uncertain history" as well. Ibid.
* ↑ See also McCoid, Procedural Reform and the Right to Jury Trial: A Study of Beacon Theaters, Inc. v. Westover, 116 U.Pa.L.Rev. 1, 2 (1967) ("[C]omplications stem from historical shifts and overlapping jurisdiction. Moreover, the careful historian encounters difficulty in applying the fruits of his study to contemporary civil litigation involving subject matter and procedural patterns unused, and sometimes unknown, in 1791") (footnotes omitted).
* ↑ Quoting James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655, 692 (1963).
* ↑ There are, to be sure, some who advocate abolishing the historical test altogether. See, e.g., Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn.L.Rev. 639, 742-747 (1973). Contrary to the intimations in Justice KENNEDY's dissent, see post, at 592-594, I am not among them. I believe that it is imperative to retain a historical test for determining when parties have a right to jury trial for precisely the same reasons Justice KENNEDY does. It is mandated by the language of the Seventh Amendment and it is a bulwark against those who would restrict a right our forefathers held indispensable. Like Justice KENNEDY, I have no doubt that courts can and do look to legal history for the answers to constitutional questions, see post, at 593-594, and therefore the Seventh Amendment test I propose today obliges courts to do exactly that.
* ↑ See also Granfinanciera, S.A., 492 U.S., at 92, 109 S.Ct., at 2817 (BLACKMUN, J., dissenting) ("The uncertainty in the historical record should lead us, for purposes of the present inquiry, to give the constitutional right to a jury trial the benefit of the doubt").
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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