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THE SEVENTH AMENDMENT, MODERN PROCEDURE, AND THE ENGLISH COMMON LAW

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  • Frog Farmer
    University of Cincinnati College of Law Working Paper Series Public Law & Legal Theory Working Paper No. 05-10 by Suja A. Thomas 82 Washington University Law
    Message 1 of 1 , Nov 30, 2007
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      University of Cincinnati College of Law Working Paper Series Public Law
      & Legal Theory Working Paper No. 05-10 by Suja A. Thomas
      82 Washington University Law Quarterly 687 (2004)

      This paper can be downloaded without charge at: The University of
      Cincinnati College of Law Working Paper Series Index:
      http://www.law.uc.edu/facpapers/index.html

      The Social Science Network Electronic Paper Collection:
      http://papers.ssrn.com/abstract=525442
      THE SEVENTH AMENDMENT, MODERN PROCEDURE, AND THE ENGLISH COMMON LAW

      SUJA A. THOMAS* [* Associate Professor, University of Cincinnati College

      of Law. J.D., New York University School of Law; B.A., Northwestern
      University. I am grateful for the comments of the following individuals:

      Gabriel J. Chin, Adam Feibelman, Mitu Gulati, Lonny Sheinkopf Hoffman,
      Ren�e Lettow Lerner, Donna M. Nagy, James Oldham, Wendy Parker, Martin
      H. Redish, Michael E. Solimine, Ted Stock, Ellen E. Sward, Tod J.
      Thompson, Michael P. Van Alstine, Ingrid Brunk Wuerth, and Chris Bauer.
      ]

      INTRODUCTION

      �[The right of trial by jury] . . . is perpetually spoken of as the
      palladium of our public rights and liberties; and in all the various
      fluctuations of public opinion, it has remained untouched and
      unsuspected.�1

      From the time of the founding of the United States, the jury trial was
      recognized as an important part of the governmental structure.2 The
      Seventh Amendment, adopted in 1791, established the right to a jury
      trial in civil cases in federal court.3 Since 1791, however, many new
      procedures that effectively eliminate the civil jury trial have been
      created.4 Under these procedures, a judge possesses substantial power to

      affect a civil jury trial by her authority to dismiss a case before
      trial, during the trial, or after a jury renders a verdict. Before
      trial, a judge can grant a motion to dismiss or a motion for summary
      judgment. Once a trial begins and after the

      1. John C. Hogan, Joseph Story on Juries, 37 OR. L. REV. 234, 249 (1958)

      (quoting Justice Story�s article �Jury� published in 1831).
      2. See, e.g., LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 29
      (Walter Hartwell Bennett ed., 1978) (letters first printed in 1787 and
      1788) (�It is essential in every free country, that common people should

      have a part and share of influence, in the judicial as well as in the
      legislative department.�).
      3. See U.S. CONST. amend. VII.
      4. Federal district court judge William G. Young issued an open letter
      to his colleagues that called the ��withering away� of the nation�s jury

      system . . . the �most profound change in our jurisprudence in the
      history of the Republic.�� Maggie Mulvihill, A Top Judge Fears Juries
      Are on Wane, BOSTON HERALD, Aug. 5, 2003 at 1, available at 2003 WL
      3033416. Judge Young advocated for changes because �[w]ithout juries,
      the pursuit of justice becomes increasingly archaic . . . juries are the

      great leveling and democratizing element in the law.� Id. The new
      procedures discussed in this Article have contributed to the decrease in

      the number of jury and bench trials in federal courts which was only 1.8

      percent of all dispositions of civil cases in federal court in 2002. See

      Adam Liptak, U.S. Suits Multiply, But Fewer Ever Get to Trial, Study
      Says, N.Y. TIMES, Dec. 14, 2003, at A1.
      687

      plaintiff has presented his evidence, or at the close of all of the
      evidence, a judge can grant a directed verdict or judgment as a matter
      of law for the defendant.5 After a jury has found for one party, a judge

      may grant judgment as a matter of law to the other party or may grant a
      new trial on one of several grounds. After a jury has found damages, a
      judge can reduce the verdict either because she found the damages
      excessive6 or because Congress enacted a statute that limits damages
      under the cause of action.7

      Judges increasingly have used such devices, particularly summary
      judgment, to dismiss cases.8 For example, courts frequently dismiss
      employment discrimination cases upon summary judgment,9 and courts
      increasingly have used summary judgment to dismiss other types of cases,

      including antitrust cases.10 The propriety of summary judgment has

      5. Although a judge could conceivably grant a directed verdict for the
      plaintiff at the close of the evidence, this occurs rarely. See 9A
      CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE �

      2535 (2d ed. 1995).
      6. Here, the judge offers a new trial as an alternative to the reduced
      verdict.
      7. The Senate and the House regularly consider tort reform to control
      the awards rendered by juries. See, e.g., Sheryl Gay Stolberg, Short of
      Votes, Senate G.O.P. Still Pushes Malpractice Issue, N.Y. TIMES, July 6,

      2003, at A1 (discussing bill that would limit pain and suffering damages

      in medical malpractice cases to $250,000). A few articles have analyzed
      the constitutionality of statutory caps under the Seventh Amendment.
      See, e.g., Colleen P. Murphy, Determining Compensation: The Tension
      Between Legislative Power and Jury Authority, 74 TEX. L. REV. 345 (1995)

      (arguing that statutory caps are unconstitutional under the Seventh
      Amendment); Michael S. Kang, Comment, Don�t Tell Juries About Statutory
      Damage Caps: The Merits of Nondisclosure, 66 U. CHI. L. REV. 469 (1999)
      (stating that the Supreme Court has not decided the issue and discussing

      the arguments for and against constitutionality).
      Appellate judges also possess significant power to affect a jury trial.
      See, e.g., Kevin M. Clermont & Theodore Eisenberg, Plaintiphobia in the
      Appellate Courts: Civil Rights Really Do Differ from Negotiable
      Instruments, 2002 U. ILL. L. REV. 947 (2002). This modern appellate
      power will not be studied in detail in this Article.
      8. See, e.g., EDWARD J. BRUNET ET AL., SUMMARY JUDGMENT: FEDERAL LAW AND

      PRACTICE 1 (2d ed. 2000) (summary judgment is �probably the single most
      important pretrial device used today�).
      9. See Theresa M. Beiner, The Misuse of Summary Judgment in Hostile
      Environment Cases, 34 WAKE FOREST L. REV. 71 (1999) (arguing federal
      courts are improperly granting summary judgment in Title VII hostile
      environment cases); JOE S. CECIL, DEAN P. MILITECH & GEORGE CORT,
      DIVISION OF RESEARCH, FEDERAL JUDICIAL CENTER, TRENDS IN SUMMARY
      JUDGMENT PRACTICE: A PRELIMINARY ANALYSIS 5 (Nov. 2001) (�notably higher

      rates� of summary judgment in civil rights cases); Ruth Colker, The
      Americans with Disabilities Act: A Windfall for Defendants, 34 HARV.
      C.R.�
      C.L. L. REV. 99, 101�02 (1999) (discussing judges� improper use of
      summary judgment in ADA cases, including the refusal of judges to send
      ��normative� factual questions� to juries and a �high threshold for
      defending summary judgment�); Ann C. McGinley, Credulous Courts and the
      Tortured Trilogy: The Improper Use of Summary Judgment in Title VII and
      ADEA Cases, 34 B.C. L. REV. 203, 206�07 (1993) (increased use of summary

      judgment in federal employment discrimination cases); see also Hillary
      Richards, Summary Judgment in Sexual Harassment Cases: An Overview of
      Recent Trends, 693 PRAC. L. INST./LITIG. 275 (2003) (�There can be no
      question that defendants in employment cases have used summary judgment
      more frequently in recent years.�).
      10. See Peter D. Ehrenhaft, Is Interface of Antidumping and Antitrust
      Laws Possible?, 34 GEO.


      become an increasingly controversial subject in scholarly debate. Some
      scholars have argued that courts overuse the device,11 while others have

      asserted that the procedure serves a particularly desirable role in the
      litigation system.12

      These same scholars have differed in their views of the
      constitutionality of the procedure, some assuming summary judgment is
      constitutional13 and others expressing concern regarding the
      constitutionality issue.14

      The question of the constitutionality of summary WASH. INT�L L. REV.
      363, 390 (2002); see also Arthur R. Miller, The Pretrial Rush to
      Judgment: Are the �Litigation Explosion,� �Liability Crisis,� and
      Efficiency Clich�s Eroding Our Day in Court and Jury Trial Commitments?,

      78 N.Y.U. L. REV. 982 (2003) (generally discussing increased use of
      summary judgment in civil cases); Paul W. Mollica, Federal Summary
      Judgment at High Tide, 84 MARQ. L. REV. 141, 141 (2000) (�emergence of
      summary judgment as the new fulcrum of federal civil dispute
      resolution�); Jeffrey W. Stempel, A Distorted Mirror: The Supreme
      Court�s Shimmering View of Summary Judgment, Directed Verdict, and the
      Adjudication Process, 49 OHIO ST. L.J. 95, 107�08 (1988) (increased
      grant of summary judgment); Patricia M. Wald, Summary Judgment at Sixty,

      76 TEX. L. REV. 1897, 1897�98 (1998) (increased use of summary judgment
      has affected all areas of civil litigation).

      Professor Ellen Sward has written that the use of another modern
      procedure, judgment as a matter of law, has expanded. See ELLEN E.
      SWARD, THE DECLINE OF THE CIVIL JURY 298 (2001). On the other hand, the
      procedural device of the new trial appears to be used less often by
      judges. Id.
      11.
      In an article published recently, Professor Arthur Miller argued that
      the procedural device of summary judgment is overused by judges because
      of judges� desire to efficiently dispose of cases and their concerns
      regarding the ability of juries. See Miller, supra note 10, at 1016,
      1104. Professor Miller feared that an unnecessary �judicial intrusion
      into the factfinder�s realm� will inevitably occur should summary
      judgment expand. Id. at 1068; see, e.g., Beiner, supra note 9, at 71;
      Colker, supra note 9, at 101�02; McGinley, supra note 9, at 206�07.

      12.
      In an article published recently, Professor Jonathan Molot argued that
      summary judgment, as opposed to a settlement conference, is a
      particularly desirable device in the court system because the parties
      and the judge play traditional roles such that parties frame the issues
      and judges decide legal questions. See Jonathan T. Molot, An Old
      Judicial Role for a New Litigation Era, 113 YALE L.J. 27 (2003). Molot
      contrasted the controversial use of settlement conferences with what he
      viewed as the generally uncontroversial pretrial management procedure of

      summary judgment. Id. at 43�46. He stated that summary judgment allowed
      the parties to frame the issues and the judge to decide the legal
      issues. Id. at 44�45. While Molot recognized that there is some
      criticism of what he termed the aggressive use of summary judgment, he
      discounts the importance of this issue to advocate that summary judgment

      is preferable to preserve tradition, as opposed to settlement
      conferences. Id. at 88. Molot stated that summary judgment is more
      traditional but more costly and settlement conferences are not
      traditional but tend to relieve the judicial system of the many burdens
      of litigation. Id. at 45�46. Molot was concerned that in settlement
      conferences there is no review of the judge�s behavior. Id. at 44, 89.
      He argued that judges should be required to write significant decisions
      if they are to deny summary judgment, and also that in addition to
      strengthening summary judgment standards, judges should be encouraged to

      apply the standards uniformly. Id. at 88. Molot stated that �the summary

      judgment mechanism offers a less dangerous (though more burdensome)
      substitute for the settlement conference.� Id. at 91. In another recent
      article, the authors argue that judges should decide whether summary
      judgment should be granted before they will enforce settlement
      agreements. See David Rosenberg & Randy Kozel, Solving the
      Nuisance-Value Settlement Problem: Mandatory Summary Judgment, (Harvard
      Public Law Working Paper No. 90, 2004, at
      http://ssrn.com/abstract=485242).

      13.
      See Molot, supra note 12, at 44.

      14.
      �Overly enthusiastic use of summary judgment means that trialworthy
      cases will be

      judgment and other procedural devices fundamentally influences how
      courts should use the procedures. If a procedure is constitutionally
      firm, then the courts should be encouraged to use the device to the
      extent the procedure comports with and aids other goals of the federal
      litigation system. If, on the other hand, the procedure is problematic
      constitutionally, the courts should reassess its use in the litigation
      system.

      The Supreme Court has evaluated the constitutionality of modern
      procedures that affect the jury trial under the Seventh Amendment.15 The

      Amendment provides that �[i]n Suits at common law . . ., 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.�16 The Supreme Court has repeatedly
      stated that �the common law� in the Seventh Amendment refers to �the
      common law of England,�17 which Justice Joseph Story stated was �the
      grand reservoir of all our jurisprudence.�18 As a result, in its
      constitutionality analyses, the Court has compared modern procedures
      that affect the jury trial right to procedures under the English common
      law in 1791, when the Seventh Amendment was adopted.19 While none of the

      modern procedures, except the new trial,20 existed under the English
      common law in 1791, the Court determined pretrial on motion papers,
      possibly compromising the litigants� constitutional rights to a day in
      court and jury trial.� Miller, supra note 10, at 1071. Miller�s concern
      is the constitutional guarantee of a jury trial; however, he asserted
      that if no ��genuine issue of material fact� exists and the movant is
      entitled to judgment �as a matter of law,� pretrial disposition does not

      raise questions of constitutional dimensions.� Id. at 1075. Other
      scholars have recognized that �[s]ummary judgment rests on a potentially

      tenuous constitutional foundation.� BRUNET, supra note 8, at 13. For
      example Brunet has stated:
      [W]hen all or part of the issue to be resolved on the summary judgment
      motion concerns whether there exists sufficient evidence to allow the
      case to go to a jury, then it would be quite incorrect to suggest that
      judicial resolution of that �legal� issue could not conceivably threaten

      the jury�s historic and constitutionally based fact-finding province.
      Id. at 17.
      15. See infra notes 20�24 and accompanying text.
      16. U.S. CONST. amend. VII.
      17. United States v. Wonson, 28 F. Cas. 745, 750 (C.C.D. Mass. 1812)
      (No. 16,750) (Story, J.); see, e.g., Markman v. Westview Instruments,
      517 U.S. 370, 376 (1996) (citing Redman); Balt. & Carolina Line, Inc. v.

      Redman, 295 U.S. 654, 657 (1935) (�The right of trial by jury . . . is
      the right which existed under the English common law when the Amendment
      was adopted.�); Slocum v. New York Life Ins. Co., 228 U.S. 364, 377
      (1913) (citing Wonson); see also Charles W. Wolfram, The Constitutional
      History of the Seventh Amendment, 57 MINN. L. REV. 639, 640 (1973).
      18. Wonson, 28 F. Cas. at 750 (stating also that �[i]t cannot be
      necessary for me to expound the grounds of this opinion, because they
      must be obvious to every person acquainted with the history of the
      law�).
      19. The modern procedures to which this Article refers are briefly
      described above. This Article does not examine details of the jury trial

      right such as the number of jurors who try a case.
      20. As described below, however, the modern new trial does differ in
      significant ways from the new trial under the common law. See supra text

      accompanying notes 368�72.

      2004] 7TH AMEND., MODERN PROCEDURE & ENGLISH COMMON LAW 691

      has determined that all of the new devices by which a court may reduce,
      completely preclude, or eliminate a jury verdict are constitutional.21
      In many of these decisions, the Court interpreted the Constitution to
      require that the �substance� of the jury trial right must be satisfied22

      and decided that the procedures did not violate the substance of the
      right.23 The Court has only once found a new device that affected the
      jury trial right unconstitutional and only then when a judge enhanced a
      jury verdict.24

      In its constitutionality analyses, the Court could be said to have taken

      certain missteps. English common law devices such as the demurrer to the

      evidence and the special case could have been described more
      completely.25 Moreover, some of the comparisons between the English
      devices and modern procedures could be said to be oversimplified. For
      example, the common law demurrer to the evidence and the special case
      are compared to the modern judgment as a matter of law, although nothing

      similar to judgment as a matter of law existed under the English common
      law.26 Also the devices under the English common law are labeled as
      inconsistent, although this is not a necessary conclusion.27 This
      approach by the Court to the evaluation of the English common law can be

      said to have led to the lack of a significant standard by which to
      analyze the constitutionality of modern procedures. The current test is
      unrelated to any specific characteristics of the English common law and
      examines the �substance� not the �form� of the jury trial right.28 While

      this anti-formalistic approach to the constitutionality analysis may
      seem reasonable, there has not been an appropriate recognition of the
      fundamental elements of the right embodied in the common law. The
      substance of the right has been defined only as: judges should decide
      law and juries should decide facts.29 Leading scholars have closely
      followed the jurisprudence of the

      21. See, e.g., Fidelity & Deposit Co. v. United States, 187 U.S. 315
      (1902) (summary judgment); see also infra text accompanying notes
      54�103.
      22. See infra text accompanying notes 68�103.
      23. See infra text accompanying notes 68�103.
      24. See Dimick v. Schiedt, 293 U.S. 474, 487�88 (1935) (finding additur,

      the increase of a jury verdict, unconstitutional under the Seventh
      Amendment). In Slocum, the Court had found unconstitutional the modern
      procedure of judgment notwithstanding the verdict. See Redman, 295 U.S.
      at 660�61. Redman essentially overruled Slocum, however. See id.
      25. See infra text accompanying notes 122�99, 287�300; see also Suja A.
      Thomas, Re-Examining the Constitutionality of Remittitur Under the
      Seventh Amendment, 64 OHIO ST. L.J. 731 (2003) (arguing the Supreme
      Court did not accurately describe remittitur under the English common
      law and that remittitur is unconstitutional).
      26. See infra text accompanying notes 122�99, 287�300.
      27. See infra text accompanying notes 122�99, 287�300.
      28. See infra text accompanying notes 68�103.
      29. See infra text accompanying notes 68�103.


      Court and, like the Court, have adopted a test unconnected to principles

      of the English common law.30 As demonstrated in this Article, however,
      fundamental elements of the common law further differentiate between the

      roles that the jury and the judge should play in a case.

      This Article assumes the validity of the English common law historical
      test to the constitutionality analysis.31 It argues, however, that the
      underlying test, unconnected to actual principles of the common law
      devices, has caused the invariable constitutionalization of procedures
      that are increasingly used by the federal courts.32 This Article
      develops principles derived from the English common law by which modern
      procedures that affect the jury trial right can be reassessed. These
      proposed principles include that procedures permitted under the English
      common law should be constitutional, and that procedures proscribed
      under the English common law should be unconstitutional. Also, if a
      procedure was not proscribed under the common law, the procedure may be
      constitutional if the procedure comports with the other principles of
      the common law. Moreover, under the proposed principles, modern
      procedures that relate to problems with pleadings may be constitutional.

      Additionally, except on a motion for a new trial, a court should not
      consider the evidence of the moving party, and the party seeking to
      remove a case from a jury should admit the truth of the evidence of the
      non-moving party. Importantly, in this decision, a court should not
      analyze the sufficiency of the evidence of what the jury should find or
      should have found. Also, the moving party loses if the admitted facts
      present a legal claim. Moreover, the emphasis should be on the right of
      the parties for a jury to hear and decide a case.33

      Part I begins with an examination of the modern procedural devices and
      an overview of the Supreme Court jurisprudence regarding the
      constitutionality of the new procedures under the Seventh Amendment.
      Scholarship regarding the �rules of the common law� is then examined.
      Part II analyzes the late eighteenth-century English procedural devices
      used to dismiss a case before a jury heard the case. The devices in
      place during the trial are then explored, followed by an analysis of the


      30. See Edith Guild Henderson, The Background of the Seventh Amendment,
      80 HARV. L. REV. 289, 336 (1966).
      31. See infra note 108.
      32. See infra text accompanying notes 54�103; supra notes 8�10.
      33. This Article sets forth principles to apply in the analyses of the
      constitutionality of modern procedures. It is beyond the scope of this
      Article to reconsider the constitutionality of each of the specific
      devices. Stare decisis also may play a role in the future
      constitutionality analyses because of the dependency of the present
      judicial system on modern procedures. For an example of an article
      reconsidering one modern procedure, see Thomas, supra note 25
      (considering remittitur).


      procedures that surrounded the verdict. Additionally, this Part
      describes the procedures used after a jury rendered a verdict. Each
      subpart on the English procedures compares the English procedures to
      modern procedures and critiques the Supreme Court�s analysis of the
      common law devices. Finally, Part III sets forth principles derived from

      the English common law by which the constitutionality of modern
      procedures may begin to be reassessed.


      I. CURRENT JURISPRUDENCE ON THE CONSTITUTIONALITY OF MODERN PROCEDURAL
      DEVICES THAT AFFECT THE RIGHT TO A JURY TRIAL

      A. Modern Procedural Devices that Affect the Jury Trial Right

      In federal court, in a case in which a jury trial right exists, a judge
      may dismiss the case before a jury trial or otherwise affect the verdict

      of a jury using procedures at many different junctures of the
      litigation. Consider how a judge could affect a case under the
      procedures in federal court. The defendant may move the court under
      Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint for
      �failure to state a claim upon which relief can be granted.�34 In other
      words, the defendant may request the court to dismiss the case because
      no legal claim rests on the facts that the plaintiff alleged.35 The
      plaintiff similarly may move the court for judgment on the pleadings.36
      If the judge does not dismiss the case upon the motion to dismiss or
      judgment on the pleadings, the case typically proceeds to discovery.

      After discovery, the parties each have another opportunity before the
      trial to request that the court grant judgment for them on part or all
      of the case. Under Federal Rule of Civil Procedure 56(c), the judge may
      grant judgment to the moving party if no genuine issue of material fact
      exists and the moving party is entitled to judgment as a matter of
      law.37 Here, the judge determines whether any important fact is at
      issue, and if not, whether under the facts and the law, the moving party

      is entitled to judgment. Courts have explained the summary judgment
      standard as requiring that no �reasonable jury� could find for the
      non-moving party under the facts of the case.38 If the judge does not
      grant summary

      34. FED. R. CIV. P. 12(b)(6); see also 5A WRIGHT, supra note 5, � 1356,
      at 294�99.
      35. See, e.g., UniCredito Italiano SPA v. JPMorgan Chase Bank, 288 F.
      Supp. 2d 485, 497 (S.D.N.Y. 2003).
      36. See FED. R. CIV. P. 12(c); see also 5A WRIGHT, supra note 5, � 1367,

      at 509�17.
      37. See FED. R. CIV. P. 56(c); see also 10A WRIGHT, supra note 5, �
      2725, at 401�40.
      38. See, e.g., Gourlay v. Forest Lake Estates Civic Ass�n of Port
      Richey, Inc., 276 F. Supp. 2d


      694 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 82:687

      judgment, the case proceeds to a jury trial unless the parties have
      waived their rights to a jury trial.

      At the trial, after the plaintiff presents his case, the defendant again

      has the opportunity to obtain judgment before a verdict. Under Federal
      Rule of Civil Procedure 50(a), the defendant may move the judge for a
      directed verdict or for judgment as a matter of law.39 The court may
      direct a verdict for the defendant if, under the facts established
      during the case of the plaintiff, the defendant is entitled to judgment
      under the law.40 The directed verdict standard is the same as the
      standard for summary judgment�no �reasonable jury� could find for the
      plaintiff under the facts.41 If the judge does not dismiss the case, the

      defendant proceeds to introduce evidence. After the parties have
      presented all of the evidence in the case, either party may move for
      judgment as a matter of law.42 The judge may grant judgment to the
      moving party if, under the facts, the moving party is entitled to
      judgment as a matter of law.43 As with summary judgment and the directed

      verdict, the standard here has been interpreted to mean no �reasonable
      jury� could find for the non-moving party.44 The court often reserves
      this decision until after the jury renders a verdict.45

      At this time, after all of the evidence has been presented, one or more
      of the parties may request that the jury render a special verdict. Under

      the special verdict, the jury decides the answers to questions posed by
      the judge and upon review of those answers, the judge decides whether
      the plaintiff or the defendant receives judgment.46 A court instead
      could require a jury to answer interrogatories and find a general
      verdict.47 If the answers are inconsistent with the verdict, the judge
      may enter judgment 1222, 1228 (M.D. Fla. 2003); see also 10A WRIGHT,
      supra note 5, � 2725, at 433�37.


      39. See FED. R. CIV. P. 50(a). While the rulemakers in 1990 changed the
      terminology from directed verdict to judgment as a matter of law, the
      former phrase will be used in this Article because judges often still
      distinguish the procedures using this phrase and the Supreme Court has
      used the phrase directed verdict in past decisions.
      40. See FED. R. CIV. P. 50(a).
      41. See, e.g., Pannu v. Iolab Corp., 96 F. Supp. 2d 1359, 1361�62 (S.D.
      Fla. 2000); see also 9A WRIGHT, supra note 5, � 2524, at 261�66.
      42. See FED. R. CIV. P. 50(a).
      43. See id.
      44. See, e.g., Isco Int�l, Inc. v. Conductus, Inc., 279 F. Supp. 2d 489,

      493�94 (D. Del. 2003) (granting judgment where �substantial evidence�
      does not support jury�s findings); see also 9A WRIGHT, supra note 5, �
      2524, at 261�66.
      45. See FED. R. CIV. P. 50(b).
      46. See FED. R. CIV. P. 49(a); see also 9A WRIGHT, supra note 5, � 2505,

      at 161.
      47. See FED. R. CIV. P. 49(b); see, e.g., Austin v. Paramount Parks,
      Inc., 195 F.3d 715, 723 (4th Cir. 1999); see also 9A WRIGHT, supra note
      5, � 2511, at 217�18.


      for the party for whom the jury did not find, return the issue to the
      jury, or order a new trial.48 If the judge does not give a special
      verdict or general verdict with interrogatories to the jury, the jury
      will render a general verdict for one of the parties.

      After the trial, the losing party may renew a motion for judgment as a
      matter of law.49 Alternatively, either party may move for a new trial.
      Under Federal Rule of Civil Procedure 59, the judge may order a new
      trial for several reasons, including that insufficient evidence exists
      upon which a jury could find for the winning party.50 This motion may be

      granted if the verdict is against the weight of the evidence.51 The
      evidence need not be examined in the light most favorable to the
      non-moving party who won, and the motion may be granted where
      �substantial evidence� supports the jury verdict.52 Additionally, if the

      jury rendered excessive damages, the defendant may request that the
      judge reduce the damages to the maximum verdict that a reasonable jury
      could find or in the alternative may request the judge to order a new
      trial.53

      As set forth here, a court can affect the rights of the parties to a
      jury trial both before, during, and after trial using a number of
      procedures which may prevent a jury trial, limit the fact-finding of a
      jury, or eliminate the verdict of a jury. The next section describes the

      jurisprudence of the Supreme Court under which such procedures have been

      found constitutional under the Seventh Amendment.

      B. Supreme Court Case Law Regarding Modern Procedural Devices that
      Affect the Jury Trial Right

      In the twentieth century the Supreme Court assessed the
      constitutionality of several modern procedural devices under the Seventh


      48. See FED. R. CIV. P. 49(b).
      49. See FED. R. CIV. P. 50(b).
      50. See FED. R. CIV. P. 59(a).
      51. See, e.g., Egebergh v. Village of Mount Prospect, No. 96-C-5863,
      2004 WL 856437, at *1 (N.D. Ill. Apr. 20, 2004); see also 11 WRIGHT,
      supra note 5, � 2806, at 63�78.
      52. See Pappas v. New Haven Police Dep�t, 278 F. Supp. 2d 296, 301 (D.
      Conn. 2003); 11 WRIGHT, supra note 5, � 2806, at 63�78.
      53. See 11 WRIGHT, supra note 5, � 2807, at 78�86; see also Thomas,
      supra note 25, at 738 &
      n.31. Upon a dismissal of a case for failure to state a claim, upon
      summary judgment, or for judgment as a matter of law, the appellate
      court will decide de novo whether the judge was correct to dismiss the
      case. See, e.g., Chute v. Walker, 281 F.3d 314, 318 (1st Cir. 2002)
      (discussing Rule 12(b)(6)); Marshall v. Columbia Lea Regional Hosp., 345

      F.3d 1157 (10th Cir. 2003) (discussing Rule 56); Brown v. Bryan County,
      Okla., 219 F.3d 450 (5th Cir. 2000) (discussing Rule 50(b)). Upon the
      grant of a new trial, the appellate court decides whether it was an
      abuse of discretion to order a new trial. See, e.g., Synder v. City of
      Moab, 354 F.3d 1179, 1188 (10th Cir. 2003).

      696 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 82:687

      Amendment. By the end of that century, all but one of the procedures had

      been found constitutional.54 The Supreme Court has held that the
      constitutionality of the procedures should be evaluated against the
      �rules of the common law,� which the Court has held means the rules of
      the English common law in 1791.55 In its analyses of the procedures, the

      Court began with a test where a procedure was unconstitutional if it did

      not exist under the English common law in 1791.56 The Court then moved
      to a test under which a device was constitutional if the substance of
      the jury trial right under the English common law in 1791, as opposed to

      the specific form of the common law procedure, was preserved.57 Later
      decisions have also emphasized fairness and the abilities of judges
      versus juries.58

      The Court has found modern procedural devices unconstitutional only in
      cases in which the Court employed the test that a procedure was
      unconstitutional if it did not exist under the English common law in
      1791. Slocum v. New York Life Insurance Co.59 is arguably the first
      significant Supreme Court case regarding the constitutionality of
      procedural devices that affect the jury trial right.60 In Slocum, the
      Court found unconstitutional the procedure of judgment notwithstanding
      the verdict, the procedure by which a court orders judgment to the party

      who loses the jury verdict.61 The Court stated that under the Seventh
      Amendment, when a court re-examines a fact tried by a jury, the
      re-examination must be only ��according to the rules of the common law
      of England.��62 Under the English common law, upon a re-examination of
      facts tried by a jury, the court could not grant judgment to the verdict

      loser; it could order only a new trial.63

      Similar to the analysis in Slocum, in Dimick v. Schiedt,64 the Court
      found unconstitutional a procedure that did not exist under the English
      common law in 1791. Additur, the option to the defendant to accept,
      instead of a new trial for inadequate damages, a judge-proposed increase


      54. See infra text accompanying notes 55�103.
      55. U.S. CONST. amend. VII; see infra text accompanying notes 56�103.
      56. See infra text accompanying notes 59�67.
      57. See infra text accompanying notes 68�103.
      58. See infra text accompanying notes 89�103.
      59. 228 U.S. 364 (1913).
      60. See 9A WRIGHT, supra note 5, � 2522, at 244.
      61. See Slocum, 228 U.S. at 364.
      62. Id. at 379 (quoting Capital Traction Co. v. Hof, 174 U.S. 1, 13
      (1899)); see also id. at 399.
      63. See id. at 399. The dissent argued to the contrary for the
      constitutionality of judgment notwithstanding the verdict. See id. at
      400�28 (Hughes, J., dissenting). According to the dissent, the procedure

      did not violate the Seventh Amendment. There had been no facts for the
      jury to try and the defendant was entitled to judgment under the
      established facts and the law. Id. at 401.
      64. 293 U.S. 474 (1935).


      in the jury verdict, did not exist under the English common law in
      1791.65 In dicta, the Court stated that remittitur, the option to the
      plaintiff to accept, instead of a new trial for excessive damages, a
      judge-proposed reduction in the jury verdict, was constitutional.66
      Unlike additur, according to the Court, evidence of remittitur existed
      at common law.67

      In these early decisions the Court had strictly adhered to the English
      common law in 1791, finding a procedure was unconstitutional if it did
      not exist under the common law. In this time period, and thereafter, the

      Court also employed another analysis regarding whether a procedure was
      constitutional. This test emphasized the substance of the 1791 English
      common law procedure over its form.68 Under the application of this
      test, many procedures which did not exist under the common law were
      found constitutional. This included the two procedures previously
      determined to be unconstitutional under the first test.

      In Gasoline Products Co. v. Champlin Refining Co.,69 the Supreme Court
      considered the constitutionality of a modern procedure that did not
      exist under the English common law. Under the common law, a court
      ordered a new trial on all issues, not just some of the issues.70 In
      deciding that a partial new trial was constitutional, the Court stated
      that �we are not now concerned with the form of the ancient rule. It is
      the Constitution which we are to interpret; and the Constitution is
      concerned, not with form, but with substance.�71 According to the Court,

      the Seventh


      65. See id. at 476�88. In particular circumstances significantly prior
      to 1791, such as in cases of mayhem, English common law courts increased

      jury verdicts. See id. at 476�82; James Oldham, Determining Damages: The

      Seventh Amendment, the Writ of Inquiry, and Punitive Damages 27�35 (Jan.

      2003) (unpublished manuscript, on file with The Washington University
      Law Quarterly).
      66. Dimick, 293 U.S. at 482�87.
      67. See id. This Article analyzes neither remittitur nor additur under
      the English common law. Remittitur as practiced in the federal courts
      did not exist under the English common law. See Thomas, supra note 25,
      at 763�82. Additur also did not exist. See id. at 733.


      The dissent, citing Gasoline Products v. Champlin Retaining Co., 283
      U.S. 494 (1931), among other cases, disagreed with the majority that the

      precise procedures in existence in 1791 should limit the review of a
      court of the decision of a jury. See Dimick, 293 U.S. at 488�97 (Stone,
      J., dissenting). Instead, in order for a review procedure to be
      constitutional, it should �preserve the essentials of the jury as it was

      known to the common law before the adoption.� Id. at 490. A court
      through its power under the common law could grant or deny a motion for
      a new trial for inadequate damages and thus could implicitly �determine,

      as a matter of law, the upper and lower limits� of the permissible
      damages. See id. at 488. As a result, the alternative for the defendant
      to pay a larger verdict within these legal limits which the judge
      determined, without giving the plaintiff the option for a new trial, was

      constitutional. See id. at 495�98.


      68. See, e.g., infra text accompanying note 71.
      69. 283 U.S. 494 (1931).
      70. See id at 497.
      71. Id. at 498.


      Amendment required issues of fact to be submitted to the jury.72 Here,
      such issues had been submitted and determined by a jury.73 As a result
      the Seventh Amendment required no more.74

      In Baltimore & Carolina Line, Inc. v. Redman,75 a case decided a few
      years after Gasoline Products, the Court considered the
      constitutionality of judgment notwithstanding the verdict, a procedure
      that did not exist under the English common law and one that the Court
      had found unconstitutional in Slocum. This time the Court found the
      procedure constitutional.76 Here, unlike in Slocum, the judge had
      reserved the question of the sufficiency of the evidence.77 The Court
      reiterated what it had said for many years; the English common law in
      1791 governed the Seventh Amendment analysis.78 However, similar to the
      analysis in Gasoline Products, the Court emphasized �substance� over
      �form� and stated the line should be drawn such that legal issues went
      to the court and factual issues went to the jury.79 The Court noted that

      at common law questions of law could be reserved for a later ruling by
      the court and the result could be judgment for one party when the jury
      had found for the other party.80 Here, the sufficiency of the evidence
      was a question of law.81 As a result, judgment for the defendant, rather

      than a new trial, was appropriate where the Court had determined that
      the evidence was insufficient.82


      72. Id.
      73. Id at 498�99.
      74. Id. Although the Court decided a partial new trial could be
      constitutional, the Court reversed the decision of the court of appeals
      which had ordered a partial new trial because �the question of damages
      on the counterclaim [was] so interwoven with that of liability that the
      former cannot be submitted to the jury independently of the latter
      without confusion and uncertainty, which would amount to a denial of a
      fair trial.� Id. at 500.
      75. 295 U.S. 654 (1935).
      76. See id. at 661.
      77. Id. at 656.
      78. Id. at 657.
      79. Id.
      80. Id. at 659�60.
      81. Id. at 659.
      82. Id. at 661. The Court stated: The aim of the Amendment . . . [was]
      to preserve the substance of the common-law right of trial by jury, as
      distinguished from mere matters of form or procedure, and particularly
      to retain 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 [were] to be resolved by the
      court and issues of fact [were] to be determined by the jury under
      appropriate instructions by the court. Id. at 657.


      A few years later, in Galloway v. United States,83 the Court continued
      the jurisprudence begun in Gasoline Products and also set forth in
      Redman. The Court found constitutional another modern procedure that did

      not exist under the English common law.84 Under the directed verdict,
      the judge orders judgment for one party before the jury renders a
      verdict.85 In Galloway, it had been argued that the directed verdict and

      other modern procedural devices that did not exist at English common law

      could not be constitutional because of the �incidental or collateral
      effects� of the modern procedures such as �allegedly higher standards of

      proof� and because �different consequences follow[ed] as to further
      maintenance of the litigation.�86 The Court disagreed and found the
      directed verdict constitutional. In language similar to that found in
      Gasoline Products and Redman, the Court stated that �the Amendment was
      designed to preserve the basic institution of jury trial in only its
      most fundamental elements.�87 The Court stated that the �essential
      requirement [to submit a case to a jury] is that mere speculation be not

      allowed to do duty for probative facts, after


      83. 319 U.S. 372 (1943).
      84. Id.
      85. See id.
      86. See id. at 390.
      87. See id. at 392.

      A number of years later the Court cited this language in its decision
      that found another modern procedural device constitutional. Parklane
      Hosiery Co., Inc., v. Shore, 439 U.S. 322 (1979). In Parklane Hosiery,
      the Supreme Court decided that issue preclusion absent mutuality of the
      parties, which did not exist under the English common law, was
      constitutional under the Seventh Amendment. Id. at 333�38. Citing the
      general �most fundamental elements� language in Galloway, the Court
      stated that it had previously deemed constitutional a number of
      procedures that had not existed under the English common law. See
      Parklane Hosiery, 439 U.S. at 336 (citing Galloway v. United States, 319

      U.S. 372, 388�93 (1943); Gasoline Prods., 283 U.S. 494, 497�98 (1935);
      Fidelity & Deposit Co. v. United States, 187 U.S. 315, 319�21 (1902)).
      While the English common law required the mutuality of parties, under
      the English common law, like under this procedure, a party did not have
      the right to have an issue decided by a jury that previously had been
      decided in an equity court. See Parklane Hosiery, 439 U.S. at 333. The
      Court discounted the relevance of Dimick in which the Court found
      unconstitutional a procedure that did not exist at English common law.
      Id. at 336 n.23. While Dimick concerned the second clause of the
      Amendment, collateral estoppel involved the first clause; there was no
      further factfinding under collateral estoppel because the factfinding
      was accomplished in the first case. See id. In his dissent, Justice
      Rehnquist objected to the denial of a jury trial on the issue that had
      been previously litigated. See id. at 337�50 (Rehnquist, J.,
      dissenting). Justice Rehnquist emphasized the importance of the English
      common law to the interpretation of the Seventh Amendment and stated
      that because issue preclusion absent mutuality of the parties did not
      exist under the common law, the Seventh Amendment required a jury trial
      in this case. See id. While the ultimate conclusion of the majority
      appears reasonable, assuming that under the common law there is support
      for a party not having a second chance to litigate an issue before a
      jury after an equity court had decided the issue, the reliance of the
      majority here, and in the other cases, on the amorphous �fundamental
      elements� standard for the constitutionality of modern procedures is
      discussed in this Article.
      making due allowance for all reasonably possible inferences favoring the

      party whose case is attacked.�88

      In Gasoline Products, Redman, and Galloway, the Court had departed from
      its analyses in Slocum and Dimick, under which it had stated a procedure

      was unconstitutional if it did not exist under the common law. Under the

      new analysis, the Seventh Amendment required only the preservation of
      the substance of the English common law jury trial in 1791. The Court
      characterized the substance of the right as the jury serving the role of

      the fact-finder in a case and the judge serving the role of the
      determiner of the law. This revised test resulted in the
      constitutionalization of all modern procedures evaluated by the Court.

      In the most recent decisions of the Court, the English common law has
      become even less relevant to the Seventh Amendment analysis. In
      Gasperini v. Center for Humanities, Inc.,89 the Supreme Court found
      constitutional the appellate review of a denial of a motion for a new
      trial for excessiveness, another device that did not exist under the
      English common law.90 Like judgment notwithstanding the verdict, the
      Court had previously deemed the procedure unconstitutional under the
      original test that a procedure was unconstitutional if the procedure did

      not exist under the English common law.91 In Gasperini, for the first
      time the Court did not compare the modern procedure to the English
      common law. The Court 88. 319 U.S. at 395. The Court specifically stated

      that a formula that requires ��substantial evidence� rather than �some
      evidence� or �any evidence� or vice versa� was not helpful to the
      determination of whether a device was constitutional. Id. In Improvement

      Co. v. Munson, 81 U.S. 442 (1871), the Court discussed how formerly only

      �a scintilla of evidence� was required to leave a matter to the jury and

      that interpretation had been rejected in favor of �a more reasonable
      rule� which required not only some evidence but �any upon which a jury
      [could] properly proceed to find a verdict.� Improvement Co., 81 U.S. at

      448. In Galloway, the Court stated:

      The Amendment did not bind the federal courts to the exact procedural
      incidents or details of jury trial according to the common law in 1791 .

      . . . [n]or were �the rules of the common law� then prevalent, . . .
      crystallized in a fixed and immutable system. . . . [T]hey were
      constantly changing and developing during the late eighteenth and early
      nineteenth centuries. Galloway, 319 U.S. at 390�91; see also BRUNET,
      supra note 8, at 15 (�collateral effects doctrine
      makes eminent constitutional sense�). The dissent quoted the Seventh
      Amendment and stated: The Court here re-examines testimony offered in a
      common law suit, weighs conflicting evidence, and holds that the
      litigant may never take this case to a jury. The founders of our
      government thought that trial of fact by juries rather than by judges
      was an essential bulwark of civil liberty. For this reason, among
      others, they adopted Article III, �2 of the Constitution, and the Sixth
      and Seventh Amendments. 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.
      Galloway, 319 U.S. at 397 (Black, J., dissenting).


      89. 518 U.S. 415 (1996).
      90. See id.
      91. See id. at 434�36.


      2004] 7TH AMEND., MODERN PROCEDURE & ENGLISH COMMON LAW 701

      justified its decision that the procedure was constitutional on the
      basis that at some point a jury verdict was so excessive so as to become

      a question of law that was reviewable �as a control necessary and proper

      to the fair administration of justice.�92 In his dissent, Justice Scalia

      stated that because such appellate review of a denial of a new trial
      motion for excessive damages did not exist at English common law in
      1791, the procedure must be unconstitutional under the Seventh
      Amendment.93

      The same year that the Court decided Gasperini the Court decided another

      case that involved the constitutionality of a procedure that affected
      the jury trial right under the Seventh Amendment. In this latest case,
      Markman v. Westview Instruments,94 the Court considered whether in a
      patent infringement case the Seventh Amendment requires the jury to
      decide the scope of the rights of a patent holder, also referred to as
      the claim.95 In the past, the Court had �repeatedly� stated that whether

      the issue was one for the jury depended on whether a jury determination
      of the issue was required to preserve the ��substance of the [English]
      common-law right of trial by jury.��96 A unanimous Court recognized that

      the phrase ��substance of the common-law right� [was], however, a pretty

      blunt instrument for drawing distinctions.�97 The Court had �tried to
      sharpen it, to be sure, by reference to the distinction between
      substance and procedure.�98 Moreover, the Court spoke of �the line as
      one between issues of fact and law.�99 However, the Court stated that
      �[w]here there is no exact antecedent, the best hope lies in comparing
      the modern practice to earlier ones whose allocation to court or jury we

      do know, seeking the best analogy we can draw between an old and the
      new.�100 Finding an absence of common law precedent that the jury
      decided this issue, the Court examined the question of whether it would
      be preferable for the


      92. Id. at 435.
      93. Id. at 448�61 (Scalia, J., dissenting). While Justice Scalia
      acknowledged that an appellate court could review issues of law, he
      argued that a damages determination by a jury did not involve such a
      legal issue. See id. at 453�54.
      94. 517 U.S. 370 (1996).
      95. See id. at 372.
      96. Id. at 377 (quoting Tull v. United States, 481 U.S. 412, 426 (1987),

      which quotes Colgrove v. Battin, 413 U.S. 149, 156 (1973)). In dicta,
      Justice Souter had raised�but did not resolve�an issue that had not been

      addressed previously. He stated �the historical test do[es] not deal
      with the possibility of conflict between actual English common law
      practice and American assumptions about what the practice was, or
      between English and American practices at the relevant time. No such
      complications arise in this case.� Id. at 376 n.3.
      97. Id. at 378.
      98. Id.
      99. Id.
      100. Id. (citations omitted).


      judge or the jury to interpret the claim.101 Citing existing Supreme
      Court precedent from the mid-nineteenth century, the Court stated that
      the judge should interpret the claim.102 The Court further stated that
      even if history and precedent did not answer the question, judges were
      better able than juries to interpret documents and thus to interpret the

      claim.103

      In all of its decisions, the Court has recognized the English common law

      as somehow influential to the analysis of the constitutionality of
      procedures that affect the jury trial right. The specific role of the
      common law has not remained constant, however. In the first cases a
      procedure was unconstitutional if it did not exist under the English
      common law in 1791. Under this test, some new procedures were found
      unconstitutional. In other decisions, the Seventh Amendment was
      interpreted to require that the substance of the jury trial right under
      the 1791 English common law, not its form, be preserved. The substance
      of the right was loosely defined only in terms of facts decided by
      juries and the law by judges. All procedures considered under this test
      have been deemed constitutional including two procedures previously
      deemed unconstitutional under the original test. Most recently, the
      Court has decided that certain issues which were previously factual and
      for juries under the common law are now legal questions for judges.
      Additionally, in its analysis finding a procedure constitutional, the
      Court has sometimes examined whether judges perform certain functions
      better than juries.

      Some scholars have advanced an approach similar to that adopted by the
      Supreme Court. In her well known article, Edith Henderson argued


      101. See id. at 384.
      102. See id. at 384�85.
      103. Id. at 388. A recognized authority on the English common law has
      disagreed with the Supreme Court�s assessment in Markman of the role of
      the jury at common law and the decision that it was appropriate to take
      this matter away from the jury. See James Oldham, The Seventh Amendment
      Right to Jury Trial: Late-Eighteenth-Century Practice Reconsidered, in
      HUMAN RIGHTS AND LEGAL HISTORY: ESSAYS IN HONOUR OF BRIAN SIMPSON 235�36

      (Katherine O�Donovan & Gary R. Rubin eds., 2000) [hereinafter Oldham,
      Seventh Amendment Right]. Professor Oldham stated that the jury would be

      given the patent interpretation question possibly with non-binding
      instructions from the judge that the jury should decide for one party.
      Id. at 236. This Article does not further explore this question. Oldham
      stated that there was different reasoning under which it might be argued

      that the question was one for the judge. See infra note 164.
      For other decisions finding procedural devices constitutional: see
      Weisgram v. Marley Co., 528 U.S. 440 (2000) (finding constitutional the
      appellate decision to give judgment to the verdict loser when trial
      court denied judgment notwithstanding the verdict based on the alleged
      improper admission of evidence); Neely v. Martin K. Eby Constr. Co., 386

      U.S. 317 (1967) (finding constitutional the appellate decision to give
      judgment to the verdict loser when the trial court denied judgment
      notwithstanding the verdict based on the alleged insufficiency of the
      evidence); cf. Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532
      U.S. 424 (2001) (finding that punitive damages are not facts tried by a
      jury, without considering the English common law).


      that the test for the constitutionality of a procedure involved
      �preserving the substance of the common law trial by jury and
      particularly the jury�s power to decide serious questions of fact, while

      allowing rational modifications of procedures in the interests of
      efficiency.�104

      In an earlier influential article, Austin Wakeman Scott had also adopted

      a standard unrelated to any particular practices of the English common
      law. He stated:
      The question of the constitutionality of any particular modification of
      the law as to trial by jury resolves itself into a question of what
      requirements are fundamental and what are unessential . . . . [I]t . . .

      should be approached in a spirit of open-mindedness . . . . [I]t is a
      question of substance, not of form.105

      Similar to the Court and Henderson, Scott concluded that the issue of
      whether there was a right to a jury trial rested on whether there was a
      disputable fact to be tried by a jury.106

      Assuming the validity of the English common law historical test,107 Part

      II explores this constitutionality standard unconnected to principles
      derived from the English common law which the Supreme Court and scholars

      have adopted. While this anti-formalistic approach to the
      constitutionality analysis appears reasonable, whether the substance of
      the common law right has been adequately examined has remained unclear.
      The current Seventh Amendment standard curiously, it seems, has led to
      the constitutionalization of virtually every modern procedural device
      that affects the jury trial right.

      The question is whether this current approach adequately accounts for
      principles embodied in the English common law�the common law which the
      Supreme Court has stated constitutes the �rules of the common law�


      104. See Henderson, supra note 30, at 336; see also Parklane Hosiery Co.

      v. Shore, 439 U.S. 322, 339 n.2 (1979) (Rehnquist, J., dissenting)
      (citing Henderson).
      105. See Austin Wakeman Scott, Trial by Jury and the Reform of Civil
      Procedure, 31 HARV. L. REV. 669, 671 (1918).
      106. Id. at 690�91. Scott stated: The old methods of enforcing the
      division [of the functions of the court and the jury] which were in use
      before our constitutions were adopted are clearly not unconstitutional.
      Nor does it violate our constitutions to supplement or supersede those
      methods by other methods more readily calculated to effect the division
      of functions without undue formality or delay. The constitutional
      guaranty does not stand in the way of the accomplishment of the result,
      much to be desired, that there shall be no trial by jury when there is
      no disputable question of fact to be tried, and no new trial when there
      is no disputable question of fact left undetermined. Id.
      107. See infra text accompanying note 108.


      under the Seventh Amendment. Can additional principles beyond a
      distinction between fact and law be derived from the English common
      law?108 Part II examines the English common law and the Supreme Court
      jurisprudence that discusses specific English common law devices. As
      shown below, the English common law devices could have been described
      more completely and comparisons to modern procedures could be said to be

      oversimplified. Moreover, the procedures have been labeled as
      inconsistent, although this is not a necessary conclusion. Part II
      begins to develop principles from the common law beyond the law/fact
      distinction. Part III further describes the principles and suggests a
      path that the Supreme Court could take in the future analyses of the
      constitutionality of procedures that affect the jury trial right.

      II. THE RULES OF THE COMMON LAW AND MODERN PROCEDURE

      In the period surrounding the adoption of the Seventh Amendment in 1791,

      many English common law procedures affected the jury trial right.
      Authoritative treatises, Supreme Court commentary, and scholarship
      recognize the procedures of demurrer to the pleadings, demurrer to the
      evidence, and the nonsuit as the primary methods by which a case that a
      jury would ordinarily hear was removed from the consideration of a jury.

      Additionally, under the common law procedure of the direction of a
      verdict, a judge would attempt to influence the verdict of the jury.
      Finally, in a case decided by a jury, the special case, the special
      verdict, arrest of judgment, and the new trial were methods under the
      common law by


      108. This Article assumes that the English common law in 1791 provides
      the appropriate �rules of the common law.� Because the Supreme Court has

      for many years interpreted the rules of the common law as those of the
      English common law in 1791, this Article seeks only to evaluate whether
      more specific principles than simply a distinction between law and fact
      may be derived from the English common law. But see Thomas, supra note
      25, at 761�62 & n.143 (discussing other interpretations of common law).
      While this Article does not seek to analyze the propriety of the Court�s

      specific use of the English common law, the language of the Seventh
      Amendment with its reference to �rules� and �common law� does appear to
      dictate some structured approach to the constitutionality analysis under

      the Amendment. See U.S. CONST. amend. VII. Additionally, the Seventh
      Amendment itself limits the power of the judiciary by the grant of
      certain cases to only juries and the re-examination by the judiciary of
      facts tried by juries only according to certain rules. As a result, the
      judiciary should arguably act with restraint with respect to the
      exercise of its power over the jury�s power. See Suja A. Thomas,
      Judicial Modesty and the Jury, 76 U. COLO. L. REV. (forthcoming 2005).
      The Supreme Court has relied on the English common law in the
      interpretation of other parts of the Constitution that do not explicitly

      refer to �the common law,� including the Sixth Amendment. See, e.g.,
      Crawford v. Washington, 124 S. Ct. 1354, 1359�67 (2004) (relying on the
      English common law in 1791, in deciding the requirements of the
      Confrontation Clause).

      2004] 7TH AMEND., MODERN PROCEDURE & ENGLISH COMMON LAW 705

      which the court could analyze the case for errors or could decide a
      legal issue.109

      109. See 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND
      377�78, 387�95 (Oxford, 2d ed. Clarendon Press 1768); FRANCIS BULLER, AN

      INTRODUCTION TO THE LAW RELATIVE TO TRIALS AT NISI PRIUS 307�09, 314,
      319�22 (London, printed by W. Strahan and M. Woodfall, for C. Bathurst,
      1772); 2 WILLIAM TIDD, THE PRACTICE OF THE COURT OF KING�S BENCH, IN
      PERSONAL ACTIONS 595�620 (London, Butterworth 1794). Blackstone is
      recognized as having a significant influence upon the law in colonial
      America. It has been stated, ��There is no doubt that for many early
      American lawyers, Blackstone was the common law, because, for one thing,

      they often had no other book.�� Hogan, supra note 1, at 234 (quoting
      RADIN, HANDBOOK OF ANGLO-AMERICAN LEGAL HISTORY 287 (1936)); see Dennis
      R. Nolan, Sir William Blackstone and the New American Republic: A Study
      of Intellectual Impact, 51 N.Y.U. L. REV. 731 (1976). The influence of
      Blackstone was widespread across England, in the courts, Parliament and
      otherwise. See JAMES OLDHAM, 1 THE MANSFIELD MANUSCRIPTS AND THE GROWTH
      OF ENGLISH LAW IN THE EIGHTEENTH CENTURY 60 (1992) [hereinafter OLDHAM,
      THE MANSFIELD MANUSCRIPTS] (The English Judge Mansfield �admired the
      Commentaries.� He contributed to and edited them.). In its analysis of
      the constitutionality of modern procedural devices, the Supreme Court
      has discussed the English common law procedures of the demurrer to the
      evidence, the nonsuit, the direction of a verdict, the special verdict,
      the special case, arrest of judgment (and judgment non obstante
      verdicto), and the new trial. See infra notes 168�99, 232�49, 269�73,
      282�86, 294�300, 329� 37, 374�82 and accompanying text.
      See also Henderson, supra note 30, at 300�17 (discussing demurrer to the

      pleadings, nonsuit, �directed verdict,� demurrer to the evidence, the
      case reserved (special case), the special verdict, the new trial, and
      judgment non obstante verdicto (arrest of judgment)); Scott, supra note
      105, at 678�90 discussing demurrer to the pleadings, special pleading,
      demurrer to evidence, instructions to the jury, the special verdict, the

      special case (and reserved point), direction of verdict, compulsory
      nonsuit, attaint and the motion for a new trial; Oldham, Seventh
      Amendment Right, supra note 103, at 230�35 (discussing demurrer,
      non-suit, special verdict, case stated, new trial, and arrest of
      judgment). Additionally, the Complete Juryman published in 1752
      discusses new trials and the arrest of judgment as the only methods by
      which the verdict of a jury does not survive. See ANON., THE COMPLETE
      JURYMAN: OR, A COMPENDIUM OF THE LAWS RELATING TO JURORS 262�77 (1752).
      This Article does not attempt to examine every detail of common law
      pretrial and trial procedure. For example, in the eighteenth century,
      there was no discovery except as to which the parties consented. See
      Oldham, Seventh Amendment Right, supra note 103, at 231 n.32. A jury
      could render a verdict for the plaintiff without hearing evidence from
      the defendant. See OLDHAM, THE MANSFIELD MANUSCRIPTS, supra at 139.
      Jurors could be witnesses. See 3 BLACKSTONE, supra at 375. The losing
      party in a case was required to pay some amount. See id. at 376. A
      conditional verdict occurred where after a verdict some type of
      valuation of the damages would occur. See OLDHAM, THE MANSFIELD
      MANUSCRIPTS, supra at 151. There were also differences between judges at

      the time and now. Judges received payment based on the number of cases
      that they heard. Id. at 119. Judges also served in a legislative
      capacity. See id. at 65.
      Additionally, judges instructed juries as to the law and had more
      extensive contact with jurors. See Ren�e Lettow Lerner, The
      Transformation of the American Civil Trial: The Silent Judge, 42 WM. &
      MARY L. REV. 195, 204�11 (2000�2001) [hereinafter Lerner, Transformation

      of Civil Trial]; cf. Ren�e
      B. Lettow, New Trial for Verdict Against Law: Judge-Jury Relations in
      Early Nineteenth-Century America, 71 NOTRE DAME L. REV. 505, 514 (1996)
      [hereinafter Lettow, New Trial] (English �[j]udges had and regularly
      used power to examine witnesses, sum up evidence, instruct in the law,
      recommend (and sometimes even direct) verdicts, postpone verdicts,
      informally question jurors before and after verdicts as to their
      reasoning, and send the jury back to redeliberate.�). This aspect of the

      effect on the jury is not examined here except in the description of the

      direction of a verdict. See infra text accompanying notes 250�66 &
      n.266. Wigmore argued that the elimination of advice by the judge to the

      jury made the jury trial less efficient and impeded justice. See Lerner,

      Transformation of Civil


      706 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 82:687

      This Part describes each English common law procedure and compares each
      such procedure to modern procedures. Additionally, the Supreme Court
      jurisprudence that discusses the common law and modern procedure is set
      forth. This discussion demonstrates that significant differences exist
      between the modern and common law procedure and that the common law
      procedures could have been described more completely. Moreover,
      differences between the common law and modern procedures have not been
      recognized or have been downplayed; the most significant differences
      have involved the movement of decision-making from juries, under the
      common law, to judges under modern procedure. Examination of the English

      common law reveals consistent principles within the common law which
      thus far have been undiscovered. This Article argues that these
      principles are fundamental to the common law right and should be applied

      in the future assessment of the constitutionality of modern procedures.

      A. Procedure Before Trial
      1. Demurrer to the Pleadings

      Under the English common law, a case could be dismissed before trial
      upon a demurrer to the pleadings.110 Under this procedure, the plaintiff

      or the defendant admitted the truth of the plea or the declaration,
      respectively, and argued that he was entitled to judgment under the
      law.111

      Trial, supra, at 199 (citing 5 JOHN HENRY WIGMORE, A TREATISE ON THE
      ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW � 2551, at 557

      (2d ed. 1923)). It might be argued that modern procedure that arguably
      permits judges to exercise more control over jury verdicts may counter
      the lessening of direct judicial influence on jury decision-making that
      had occurred under the common law. While as explained here this Article
      does not examine these differences in the common law and modern
      procedure regarding direct judicial influence, such influence on the
      jury under the common law could be perceived as very different than
      eliminating jury decision-making under modern procedure. See infra text
      accompanying notes 116�21, 162�99, 230�49, 267�73, 281�86, 293�300,
      325�37, 368�82 (explaining differences between common law and modern
      procedure); see also infra note 266.

      110. 3 BLACKSTONE, supra note 109, at 314�15.
      111. See id. �[I]n the late eighteenth century, the demurrer was
      virtually the only pre-trial method in the common law courts to take a
      case forward for decision without calling a jury. In other words, almost

      all cases in the common law courts were tried before juries. . . .
      [There was no] procedure (other than the demurrer) that would allow a
      judge to determine before trial that a case presented no issue<br/><br/>(Message over 64 KB, truncated)
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