SEVENTH AMENDMENT

CIVIL TRIALS

CONTENTS

Page

Trial By Jury In Civil Cases ..................................................................................................... 1681

The Right and the Characteristics of the Civil Jury ...................................................... 1681

History .......................................................................................................................... 1681

Composition and Functions of Civil Jury ................................................................. 1682

Courts in Which the Guarantee Applies ................................................................... 1683

Waiver of the Right ..................................................................................................... 1684

Application of the Amendment .......................................................................................... 1684

Cases “at Common Law” ............................................................................................ 1684

The Continuing Law-Equity Distinction ................................................................... 1688

Procedures Limiting Jury’s Role ................................................................................ 1690

Directed Verdicts ......................................................................................................... 1692

Jury Trial Under the Federal Employers’ Liability Act ........................................... 1693

Appeals From State Courts to the Supreme Court ......................................................... 1695

1679

CIVIL TRIALS

SEVENTH AMENDMENT

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.

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, § 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 pro1 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).

1681
posals to the House.5 It does not appear that the text of the proposed amendment or its meaning was debated during its passage.6

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 fiveto-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

The primary purpose of the Amendment is to preserve “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

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).

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.

11 413 U.S. 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 Sixth Amendment discussion, supra, “The Attributes of the Jury.”

1682 AMENDMENT 7—CIVIL TRIALS
fact are to be determined by the jury under appropriate 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 that were tried by a jury in England in

1791 are to be so tried today and those matters, such as matters

that fall under equity, and admiralty and maritime jurisprudence,

that 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

Courts in Which the Guarantee Applies.—The Amendment

governs only courts that 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 state 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 Where

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).

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)).

AMENDMENT 7—CIVIL TRIALS 1683
the “interests” of the state and federal systems can be reconciled,

however, a court should endeavor to implement the rules of the state

courts.22

Waiver of the Right.—Parties may enter into a stipulation waiving a jury and submitting the case to the court upon an agreed statement of facts, even without any legislative provision for waiver.23

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.” 24 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.25 However, a

waiver is not to be implied from a request for a directed verdict.26

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.” 27 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.28 Illustrative of the Court’s course of decision on this subject are two unani22 Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). In Gasperini,

the Court examined whether New York law, which required that state trial courts

and courts of appeals review jury awards to determine if they “deviate materially

from reasonable compensation,” should be applied by federal courts exercising diversity jurisdiction. The Court, in what has been characterized as a “state-friendly” decision, Leading Cases, 110 HARV. L. REV. 266 (1996), found that absent inconsistent

federal interests, the state standard of review should be applied by the federal courts.

The Court held that a district court could apply such a standard consistent with

Seventh Amendment precepts, but that the court of appeals could only review an

award under an “abuse of discretion” standard. 518 U.S. at 434–35.

23 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).

24 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).

25 FED. R. CIV. P. 38.

26 Aetna Life Ins. Co. v. Kennedy, 301 U.S. 389 (1937); Fed. R. Civ. P. 50(a).

27 Shields v. Thomas, 59 U.S. (18 How.) 253, 262 (1856).

28 Parsons v. Bedford, 28 U.S. (3 Pet.) 443, 447 (1930); 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.

1684 AMENDMENT 7—CIVIL TRIALS
mous 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[d] 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.” 29 The statutory

cause of action, the Court found, had several counterparts in the

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.” 30

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.31 Where

Rathbun-Jones Eng. Co., 243 U.S. 273, 279 (1917). But see Dairy Queen v. Wood,

369 U.S. 469 (1962) (legal claims must be tried before equitable ones).

29 Pernell v. Southall Realty Co., 416 U.S. 363 (1974).

30 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, 502 U.S. 93 (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); Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998) (jury trial required for copyright action with close analogue at common law, even though the relief sought is not actual damages but statutory damages based on what is “just”).

31 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 Nat’l 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); (7)

AMENDMENT 7—CIVIL TRIALS 1685
there is no direct historical antecedent dating to the adoption of

the amendment, the court may also consider whether existing precedent and the sound administration of justice favor resolution by

judges or juries.32

The amendment does not apply to cases in admiralty and maritime jurisdiction, in which the trial is by a court without a jury,33

nor does it reach statutory proceedings unknown to the common

law, such as an application to a court of equity to enforce an order

of an administrative body.34 Thus, when Congress committed to administrative determination the finding of a violation of the Occupational Safety and Health Act with the 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.” 35

On the other hand, if Congress assigns such cases to Article III

courts, a jury may be required. In Tull v. United States,

36 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 restitutionbased remedies available in equity courts, and therefore makes it a

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).

32 Markman v. Westview Instruments, Inc., 517 U.S. 348 (1996) (interpretation

and construction of terms underlying patent claims may be reserved entirely for the

court).

33 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 Co., 374 U.S. 16 (1963).

34 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).

35 Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 450 (1977).

36 481 U.S. 412 (1987).

1686 AMENDMENT 7—CIVIL TRIALS
remedy of the type that could be imposed only by courts of law.37

However, 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.

Later, 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,

38 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 claim to

a non-Article III tribunal.39 As a general matter, “public rights” involve “ ‘the relationship between the government and persons subject to its authority,’ ” whereas “private rights” relate to “ ‘the liability of one individual to another.’ ” 40 Although finding room for “some

debate,” the Court determined that a bankruptcy trustee’s right to

recover for a fraudulent conveyance “is more accurately character37 The statute itself specified only a maximum amount for the penalty; the Court

derived its “punitive” characterization from indications in the legislative history that

Congress desired consideration of the need for retribution and deterrence as well as

the need for restitution.

38 492 U.S. 33, 51–52 (1989).

39 “[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.” 492 U.S. at 53–54

(citation omitted).

40 492 U.S. 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).

AMENDMENT 7—CIVIL TRIALS 1687
ized as a private rather than a public right,” at least when the defendant had not submitted a claim against the bankruptcy estate.41

The Continuing Law-Equity Distinction.—The use of the term

“common law” in the Amendment to indicate 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 whereas 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.42 But the traditional distinction between law and equity for

purposes of determining when there was a constitutional right to

trial by jury remained and led to some difficulty.43

41 492 U.S. at 55. On the other hand, a creditor who submits 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).

42 5 J. MOORE, FEDERAL PRACTICE §§ 38.01–38.05 (2d ed. 1971).

43 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). If 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 if 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, if 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 equiva1688 AMENDMENT 7—CIVIL TRIALS
This difficulty has been resolved by stressing the fundamental

nature of the jury trial right and protecting it against diminution

through resort to equitable principles. In Beacon Theatres v. Westover,

44

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.” 45 Then, in Dairy Queen v. Wood,

46 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

lent 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 § 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).

44 359 U.S. 500 (1959).

45 359 U.S. at 510–11.

46 369 U.S. 469 (1962).

AMENDMENT 7—CIVIL TRIALS 1689
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.47

In Ross v. Bernhard,

48 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,49 which has always been considered to be a suit in equity. The Court agreed that the action 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.50 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.51

Procedures Limiting Jury’s Role.—As noted above, the primary purpose of the Seventh Amendment was to preserve the his47 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).

48 396 U.S. 531 (1970).

49 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).

50 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).

51 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 §§ 38.11[8.–8], 38.11[9] (2d ed.

1971).

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toric line separating the province of the jury from that of the judge,

without at the same time preventing procedural improvement that

does not transgress this line. Elucidating this formula, the Court

has concluded that it is constitutional for a federal judge, in the

course of trial, (1) to express his opinion upon the facts, provided

that all questions of fact are ultimately submitted to the jury,52 (2)

to call the jury’s attention to parts of the evidence that he deems of

special importance,53 being careful to distinguish between matters

of law and matters of opinion,54 (3) to inform the jury, when there

is not sufficient evidence to justify a verdict, that such is the case,55

(4) to require a jury to answer specific interrogatories in addition

to rendering a general verdict,56 (5) to direct the 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,57 (6) to set aside a verdict that

is against the law or the evidence, and to order a new trial,58 and

(7) to refuse the defendant a new trial on the condition, accepted

by plaintiff, that the plaintiff remit a portion of the damages awarded

him,59 but not, on the other hand, to deny the plaintiff a new trial

on the condition, accepted by the defendant, that the defendant consent to an increase of the damage award.60 Nor can a Court of Appeals reverse a jury’s finding on the issue of the reasonableness of

a stevedoring company’s conduct in failing to avert an injury to one

of its employees. The Court of Appeals had found that the stevedore had acted unreasonably as a matter of law, but the Supreme

Court held that, “[u]nder the Seventh Amendment, that issue should

have been left to the jury’s determination.” 61

52 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).

53 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)).

54 Games v. Dunn, 39 U.S. (14 Pet.) 322, 327 (1840).

55 Sparf and Hansen v. United States, 156 U.S. 51, 99–100 (1895); Pleasants v.

Fant, 89 U.S. (22 Wall.) 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).

56 Walker v. New Mexico So. Pac. R.R., 165 U.S. 593, 598 (1897).

57 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.

58 Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1889).

59 Arkansas Cattle Co. v. Mann, 130 U.S. 69, 74 (1889).

60 Dimick v. Schiedt, 293 U.S. 474, 476–78 (1935).

61 International Terminal Operating Co. v. N. V. Nederl. Amerik Stoomv. Maats.,

393 U.S. 74, 75 (1968) (per curiam). But see Neely v. Martin K. Eby Construction

Co., 386 U.S. 317, 322 (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.” A federal appellate court may also

AMENDMENT 7—CIVIL TRIALS 1691
“In numerous contexts, gatekeeping judicial determinations prevent submission of claims to a jury’s judgment without violating the

Seventh Amendment.” 62 Thus, in order to screen out frivolous complaints or defenses, Congress “has power to prescribe what must

be pleaded to state the claim, just as it has the power to determine

what must be proved to prevail on the merits. It is the federal lawmaker’s prerogative, therefore, to allow, disallow, or shape the contours of—including the pleading and proof requirements for . . . private actions.” 63 A “heightened pleading rule simply ‘prescribes the

means of making an issue,’ and . . . , when ‘[t]he issue [is] made as

prescribed, the right of trial by jury accrues.’ ” 64

Directed Verdicts.—In 1913, in Slocum v. New York Life Ins.

Co.,

65 the Court 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. Although plainly in accordance with the common law as

it stood in 1791, the five-to-four decision was subjected to a heavy

barrage of professional criticism based on convenience and urging

recognition of capacity for growth in the common law.66 Slocum was

then impaired, if not completely undermined, by subsequent holdings.67

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.68 The Court distinguished Slocum and noted that its ruling qualified some of its

review a district court’s denial of a motion to set aside an award as excessive under

an abuse of discretion standard. Gasperini v. Center for Humanities, Inc., 518 U.S.

415 (1996) (New York law that requires appellate courts to order a new trial when a

jury award “deviates materially from what would be reasonable compensation” may

be applied by a federal district court exercising diversity jurisdiction, “with appellate control of the trial court’s ruling limited to review for ‘abuse of discretion’ ”).

62 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 327 n.8 (2007).

63 551 U.S. at 327.

64 551 U.S. at 328 (quoting Fidelity & Deposit Co. of Md. v. United States, 187

U.S. 315, 320 (1902)).

65 228 U.S. 364 (1913).

66 F. JAMES, CIVIL PROCEDURE 332–33 & n.8 (1965).

67 But see Hetzel v. Prince William County, 523 U.S. 208 (1998) (when an appeals court affirms liability but orders the level of damages to be reconsidered, the

plaintiff has a Seventh Amendment right either to accept the reduced award or to

have a new trial).

68 Baltimore & Carolina Line v. Redman, 295 U.S. 654 (1935).

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assertions in Slocum.

69 In the second case 70 the Court sustained a

United States district court in rejecting the defendant’s 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.71 In the third case,72 which involved an action

against the government for benefits under a war risk insurance policy

that 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. Justice Black, joined by Justices Douglas and

Murphy asserted in dissent, “Today’s decision marks a continuation of the gradual process of judicial erosion which in one-hundredfifty years has slowly worn away a major portion of the essential

guarantee of the Seventh Amendment.” 73 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.74

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,75 and by the minority in terms of the costs to

69 295 U.S. at 661. The Court’s opinions in both Redman and Slocum were by

Justice Van Devanter.

70 Lyon v. Mutual Benefit Ass’n, 305 U.S. 484 (1939).

71 Ch. 255, § 5, 17 Stat. 197 (1872), now superseded by the Federal Rules of

Civil Procedure.

72 Galloway v. United States, 319 U.S. 372, 389 (1943), in which the Court wrote,

“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.

73 319 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.

74 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.

75 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.

AMENDMENT 7—CIVIL TRIALS 1693
the Supreme Court in time and effort spent in evaluating the quantum of evidence necessary to create a jury question.76

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.” 77 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 78 and the

Safety Appliance Act.79

“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

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, 507–10 (1957).

Trial by jury is “part and parcel of the remedy afforded railroad workers” under the

FELA. Bailey v. Central Vermont Ry., 319 U.S. at 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., 352

U.S. at 509.

76 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.

77 Rogers v. Missouri Pacific R.R., 352 U.S. 500, 510 (1957).

78 Schulz v. Pennsylvania R.R., 350 U.S. 523 (1956); Ferguson v. MooreMcCormack 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).

79 Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 525 n.2 (1957) (Justice

Frankfurter dissenting).

1694 AMENDMENT 7—CIVIL TRIALS
made out whether or not the evidence allows the jury a choice of

other probabilities.” 80 A persistent dissent in the line of cases 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.” 81

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 cases tried before a jury in a state court and

brought to the Supreme Court on appeal.82 The Court has indicated frequently, however, that, in cases involving a claim of a denial of constitutional rights, it is free to examine and review the

evidence upon which the lower court based its conclusions, a position that under some circumstances could conflict with the principle of jury autonomy.83

80 Rogers v. Missouri Pacific R.R., 352 U.S. at 507. The cases are collected 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 Pac. R.R., 372 U.S. 248

(1963); Basham v. Pennsylvania R.R., 372 U.S. 699 (1963).

81 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).

82 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).

83 See Time, Inc. v. Pape, 401 U.S. 279, 284–92 (1971), and cases cited therein.

AMENDMENT 7—CIVIL TRIALS 1695