This is a version of comments Wendy Purdue delivered at our celebration of James Oldham's Trial by Jury:
My interest Jim’s book stems from the fact that as part of teaching Civil Procedure, I teach the 7th Amendment and have always found it a peculiar area of law. The Court has held that “preserved” as it is used in the 7th Amendment means that in order to determine whether you have a right to a jury to day, you must look to history.
Interestingly, the history that the Court purports to be interested in is English practice as opposed to the purposes of the 7th Amendment as a matter of U.S. history.
A focus on historical purposes rather than English practice would significantly alter the Court’s approach and could change the result in some cases. For example, Paul Carrington has argued that at least one purpose of the 7th Amendment was to constrain life tenured federal judges. See Paul Carrington, The Seventh Amendment: Some Bicentential Reflections, 1990 U. Chi. Legal Forum 33. If one accepted this as a core purpose then the Court’s analysis in Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424 (2001) might have been different. In that case, the Court had to decide whether it violated the reexamination clause for a court to override a jury determination on punitive damages. The Court’s analysis seems to divide the world into questions of fact that are for juries and questions of law that are for judges. According to the Court, punitive damages are “an expression of . . . moral condemnation” rather than a determination of fact and therefore belong with judges. Of course, one might also just have well have said that “moral condemnations” are not matters of law either. If the Court’s core understanding were that the purpose of juries is to constrain elite life tenured judges then “moral condemnations” might be just the sort of thing that belong with juries and not with elite judges.
The Court has, of course, rejected a purpose based approach and has instead adopted an historical test which focuses on 18th century English practice. (As an aside, it is interesting that with all the controversy about whether it is proper even to cite foreign law, in the area of the 7th Amendment, the Court is comfortable not only citing foreign law (from England) but purporting to be absolutely bound by it.)
The historical test presents major complications where the cause of action is one that did not exist in 18th century England. Here the Court looks for historical “analogies.” So, in a suit against a union for breach of its duty of fair representation, a lot of ink was spilled trying to determine whether such a suit is more like a suit to set aside an arbitration award (since the underlying complaint had to do with the handling of a grievance procedure), or like a suit against a trustee for breach of a fiduciary obligation (also an action in equity), or like a claim for professional malpractice which was an action at law. See Chauffeurs Local, 391 v. Terry, 494 U.S. 558 (1990). None of the analogies is very convincing and the whole exercise is rather like trying to decide in which room of Monticello Thomas Jefferson would have put his TV.
Historical analogies present almost insurmountable problems. However, even where the clause of action did exist in 18th century England the historical test presents challenges, complicated by the fact that we now have a unified system (rather than separate courts of law and equity) as well as a number of new different procedural mechanisms. This is where Jim’s book comes in. He takes the Court at its word that it is interested in knowing the truth about 18th century English practice and sets about to determine what that was.
The result is a book that is quite a fascinating exploration of English jury trial practice. I am not a historian, but it seems to me that Jim demonstrates pretty convincingly that when the ct tries to figure out 18th century English practice, it frequently gets it wrong.
For example, in Markman, 517 U.S. 370 (1996), the issue was whether the interpretation of a word in a patent claim (the meaning of “inventory”) is a question for the judge or the jury. Jim argues that contrary to Souter’s assertion, that this type of case was not rare and that interpretation of disputed patent instruments was an issue for the jury. I think he makes a pretty persuasive case that the ct gets the history wrong.
In addition to examining the question of when there is a right to a jury in the first instance, Jim’s book also examines historical practice with respect to the reexamination of jury verdicts, which relates to the second clause of the 7th Amendment. The book highlights some important features about English practice concerning reexamination of jury verdicts. For example, the modern practice of judgment as a matter of law was not well established, directed verdicts functioned quite differently than they do today, and issues concerning damages, including punitive damages, were sent to juries and the mechanism to respond to excessive awards was to grant a new trial.
As Jim’s book notes, the Court has been far less wedded to a strict historic approach with respect to the reexamination clause. The result is that on the one hand, the Court has been quite expansive in finding a right to a jury as an initial matter, but also more expansive in supplementing juries through directed verdict and in over riding jury verdicts.
The final point concerns the composition of juries. Jim’s book details the very interesting history concerning the use of specialized juries, including juries of matrons and other special juries. The composition of juries is not something the Court has pegged to historical practice. Modern requirements that juries reflect a reasonable cross-section and be selected in a non-discriminatory way, reflect values outside the 7th Amendment and indeed may reflect values that go beyond the fairness of the trial and instead may reflect concerns about inclusiveness in civil society. But Jim makes the point that to the extent there is interest in experimenting with special juries composed of particular types of experts or even people with particular education levels – that would not appear to violate the 7th Amendment (at least to the extent it is understood as historically based).
Let me just say a word about the complexity exception. Jim explains that in many complex cases, the matter was referred to special masters or to commercial arbitration. It strikes me that there are two ways to look at this history. On the one had, it seems to support the proposition that frequently complex cases were not decided by common juries. But, if I understand the history, one could also say that complex cases were frequently not decided by judges.
When people talk about a complexity exception, they frequently mean that in complex cases, the case might not be decided by a jury but instead by a judge. But I am no sure that the history supports that so much as the idea that complex cases might be decided by special juries.
A final thought: in Chauffeurs Local v. Terry, the Court considered the question of whether there was a right to a jury trial in a suit against a union for breach of its duty of fair representation. The opinion produced long opinions examining 18th century practice concerning suits against a trust fiduciary and suits for malpractice. Justice Brennan filed in concurrence in which he wrote: “to be sure, it is neither unusual nor embarrassing for members of the Court to disagree and disagree vehemently. But it better behooves judges to disagree within the province of judicial expertise.” He suggested cutting back somewhat on the historical test. Justice Brennan was metaphorically hooted down by the rest of the Court in this suggestion.
It is clear to me after reading this book that if the Court is going to continue to do this historical test, that they really have no choice but to officially appoint Jim as the federal court special master on 18th century English practice and refer to him these historical questions.