[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[Seventh Amendment - Civil Trials]
[From the U.S. Government Printing Office, www.gpo.gov]


[[Page 1449]]


 
                   SEVENTH AMENDMENT -- CIVIL TRIALS

                               __________

 
                                CONTENTS

                                                                    Page
        Trial by Jury in Civil Cases..............................  1451
        The Right and the Characteristics of the Civil Jury.......  1451
                History...........................................  1451
                Composition and Functions of Civil Jury...........  1452
                Courts in Which the Guarantee Applies.............  1453
                Waiver of the Right...............................  1453
        Application of the Amendment..............................  1454
                Cases ``at Common Law''...........................  1454
                The Continuing Law-Equity Distinction.............  1457
                Procedures Limiting Jury's Role...................  1460
                Directed Verdicts.................................  1461
                Jury Trial Under the Federal Employers' Liability 
                    Act...........................................  1462
        Appeals from State Courts to the Supreme Court............  1464



[[Page 1451]]


                            SEVENTH AMENDMENT

                               __________

 
                              CIVIL TRIALS

  In Suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved, and no 
fact tried by a jury shall be otherwise re-examined in any Court of the 
United States, than according to the rules of the common law.
 
                      TRIAL BY JURY IN CIVIL CASES

      The Right and the Characteristics of the Civil Jury

        History.--On September 12, 1787, as the Convention was in its 
final stages, Mr. Williamson of North Carolina ``observed to the House 
that no provision was yet made for juries in Civil cases and suggested 
the necessity of it.'' The comment elicited some support and the further 
observation that because of the diversity of practice in civil trials in 
the States it would be impossible to draft a suitable provision.\1\ When 
on September 15 it was moved that a clause be inserted in Article III, 
Sec. 2, to guarantee that ``a trial by jury shall be preserved as usual 
in civil cases,'' this objection seems to have been the only one urged 
in opposition and the motion was defeated.\2\ The omission, however, was 
cited by many opponents of ratification and ``was pressed with an 
urgency and zeal . . . well-nigh preventing its ratification.''\3\ A 
guarantee of right to jury in civil cases was one of the amendments 
urged on Congress by the ratifying conventions\4\ and it was included 
from the first among Madison's proposals to the House.\5\ It does not 
appear that the text

[[Page 1452]]
of the proposed amendment or its meaning was debated during its 
passage.\6\

        \1\2 M. Farrand, Records of the Federal Convention of 1787, at 
587 (rev. ed. 1937).
        \2\Id. at 628.
        \3\J. Story, Commentaries on the Constitution of the United 
States 1757 (1833). ``[I]t is a most important and valuable amendment; 
and places upon the high ground of constitutional right the inestimable 
privilege of a trial by jury in civil cases, a privilege scarcely 
inferior to that in criminal cases, which is conceded by all to be 
essential to political and civil liberty.'' Id. at 1762.
        \4\J. Elliott, The Debates in the Several State Conventions on 
the Adoption of the Federal Constitution 326 (2d ed. 1836) (New 
Hampshire); 2 id. at 399-414 (New York); 3 id. at 658 (Virginia).
        \5\1 Annals of Congress 436 (1789). ``In suits at common law, 
between man and man, the trial by jury, as one of the best securities to 
the rights of the people, ought to remain inviolate.''
        \6\It is simply noted in 1 Annals of Congress 760 (1789), that 
on August 18 the House ``considered and adopted'' the committee version: 
``In suits at common law, the right of trial by jury shall be 
preserved.'' On September 7, the Senate Journal states that this 
provision was adopted after insertion of ``where the consideration 
exceeds twenty dollars.'' 2 B. Schwartz, The Bill of Rights: A 
Documentary History 1150 (1971).
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        Composition and Functions of Civil Jury.--Traditionally, the 
Supreme Court has treated the Seventh Amendment as preserving the right 
of trial by jury in civil cases as it ``existed under the English common 
law when the amendment was adopted.''\7\ The right was to ``a trial by a 
jury of twelve men, in the presence and under the superintendence of a 
judge empowered to instruct them on the law and to advise them on the 
facts and (except in acquittal of a criminal charge) to set aside their 
verdict if in his opinion it is against the law or the evidence.''\8\ 
Decision of the jury must be by unanimous verdict.\9\ In Colgrove v. 
Battin,\10\ however, the Court by a five-to-four vote held that rules 
adopted in a federal district court authorizing civil juries composed of 
six persons were permissible under the Seventh Amendment and 
congressional enactments. By the reference in the Amendment to the 
``common law,'' the Court thought, ``the Framers of the Seventh 
Amendment were concerned with preserving the right of trial by jury in 
civil cases where it existed at common law, rather than the various 
incidents of trial by jury.''\11\

        \7\Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 
(1913); Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446-48 (1830).
        \8\Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899).
        \9\Maxwell v. Dow, 176 U.S. 581 (1900); American Publishing Co. 
v. Fisher, 166 U.S. 464 (1897); Springville v. Thomas, 166 U.S. 707 
(1897).
        \10\413 U.S. 149 (1973). Justices Marshall and Stewart dissented 
on constitutional and statutory grounds, id. at 166, while Justices 
Douglas and Powell relied only on statutory grounds without reaching the 
constitutional issue. Id. at 165, 188.
        \11\Id. at 155-56. The Court did not consider what number less 
than six, if any, would fail to satisfy the Amendment's requirements. 
``What is required for a `jury' is a number large enough to facilitate 
group deliberation combined with a likelihood of obtaining a 
representative cross section of the community. . . . It is undoubtedly 
true that at some point the number becomes too small to accomplish these 
goals . . .'' Id. at 160 n.16. Application of similar reasoning has led 
the Court to uphold elimination of the unanimity as well as the 12-
person requirement for criminal trials. See Williams v. Florida, 399 
U.S. 78 (1970) (jury size); Apodaca v. Oregon, 406 U.S. 404 (1972) 
(unanimity); and discussion supra pp.1408-10.
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        The Amendment has for its primary purpose the preservation of 
``the common law distinction between the province of the court and that 
of the jury, whereby, in the absence of express or implied consent to 
the contrary, issues of law are resolved by the court and issues of fact 
are to be determined by the jury under appropriate

[[Page 1453]]
instructions by the court.''\12\ But it ``does not exact the retention 
of old forms of procedure'' nor does it ``prohibit the introduction of 
new methods of ascertaining what facts are in issue'' or new rules of 
evidence.\13\ Those matters which were tried by a jury in England in 
1791 are to be so tried today and those matters which, as in equity, 
were tried by the judge in England in 1791 are to be so tried today,\14\ 
and when new rights and remedies are created ``the right of action 
should be analogized to its historical counterpart, at law or in equity, 
for the purpose of determining whether there is a right of jury trial,'' 
unless Congress has expressly prescribed the mode of trial.\15\

        \12\Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 
(1935); Walker v. New Mexico & So. Pac. R.R., 165 U.S. 593, 596 (1897); 
Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 497-99 (1931); 
Dimick v. Schiedt, 293 U.S. 474, 476, 485-86 (1935).
        \13\Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 
498 (1931); Ex parte Peterson, 253 U.S. 300, 309 (1920).
        \14\Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446-47 (1830); 
Slocum v. New York Life Ins. Co., 228 U.S. 364, 377-78 (1913); Baltimore 
& Carolina Line v. Redman, 295 U.S. 654, 657 (1935); Dimick v. Schiedt, 
293 U.S. 474, 476 (1935). But see Ross v. Bernhard, 396 U.S. 531 (1970), 
which may foreshadow a new analysis.
        \15\Luria v. United States, 231 U.S. 9, 27-28 (1913).
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        Courts in Which the Guarantee Applies.--The Amendment governs 
only courts which sit under the authority of the United States,\16\ 
including courts in the territories\17\ and the District of 
Columbia,\18\ and does not apply generally to state courts.\19\ But when 
a state court is enforcing a federally created right, of which the right 
to trial by jury is a substantial part, the States may not eliminate 
trial by jury as to one or more elements.\20\ Ordinarily, a federal 
court enforcing a state-created right will follow its own rules with 
regard to the allocation of functions between judge and jury, a rule the 
Court based on the ``interests'' of the federal court system, eschewing 
reliance on the Seventh Amendment but noting its influence.\21\

        \16\Pearson v. Yewdall, 95 U.S. 294, 296 (1877); Edwards v. 
Elliott, 88 U.S. (21 Wall.) 532, 557 (1874); The Justices v. Murray, 76 
U.S. (9 Wall.) 274, 277 (1870); Walker v. Sauvinet, 92 U.S. 90 (1876); 
St. Louis & K.C. Land Co. v. Kansas City, 241 U.S. 419 (1916).
        \17\Webster v. Reid, 52 U.S. (11 How.) 437, 460 (1851); Kennon 
v. Gilmer, 131 U.S. 22, 28 (1889).
        \18\Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899).
        \19\Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211 
(1916). See also Melancon v. McKeithen, 345 F. Supp. 105 (E.D.La.) 
(three-judge court), aff'd. per curiam, 409 U.S. 943 (1972); Alexander 
v. Virginia, 413 U.S. 836 (1973).
        \20\Dice v. Akron, C. & Y. R.R., 342 U.S. 359 (1952). Four 
dissenters contended that the ruling was contrary to the unanimous 
decision in Bombolis.
        \21\Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958) 
(citing Herron v. Southern Pacific Co., 283 U.S. 91 (1931)).
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        Waiver of the Right.--Parties may enter into a stipulation 
waiving a jury and submitting the case to the court upon an agreed

[[Page 1454]]
statement of facts, even without any legislative provision for 
waiver.\22\ Prior to adoption of the Federal Rules, Congress had, ``by 
statute, provided for the trial of issues of fact in civil cases by the 
court without the intervention of a jury, only when the parties waive 
their right to a jury by a stipulation in writing.''\23\ Under the 
Federal Rules of Civil Procedure, any party may make a timely demand for 
a trial by jury of any issue triable of right by a jury by serving upon 
the other parties a demand therefor in writing, and failure so to serve 
a demand constitutes a waiver of the right.\24\ However, a waiver is not 
to be implied from a request for a directed verdict.\25\

        \22\Henderson's Distilled Spirits, 81 U.S. (14 Wall.) 44, 53 
(1872); Rogers v. United States, 141 U.S. 548, 554 (1891); Parsons v. 
Armor, 28 U.S. (3 Pet.) 413 (1830); Campbell v. Boyreau, 62 U.S. (21 
How.) 223 (1859).
        \23\Baylis v. Travellers' Ins. Co., 113 U.S. 316, 321 (1885). 
The provision did not preclude other kinds of waivers, Duignan v. United 
States, 274 U.S. 195, 198 (1927), though every reasonable presumption 
was indulged against a waiver. Hodges v. Easton, 106 U.S. 408, 412 
(1883).
        \24\Fed. R. Civ. P. 38.
        \25\Aetna Life Ins. Co. v. Kennedy, 301 U.S. 389 (1937); Fed. R. 
Civ. P. 50(a).
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      Application of the Amendment

        Cases ``at Common Law''.--The coverage of the Amendment is 
``limited to rights and remedies peculiarly legal in their nature, and 
such as it was proper to assert in courts of law and by the appropriate 
modes and proceedings of courts of law.''\26\ The term ``common law'' 
was used in contradistinction to suits in which equitable rights alone 
were recognized at the time of the framing of the Amendment and 
equitable remedies were administered.\27\ Illustrative of the Court's 
course of decision on this subject are two unanimous decisions holding 
that civil juries were required, one in a suit by a landlord to recover 
possession of real property from a tenant allegedly behind on rent, the 
other in a suit for damages for alleged racial discrimination in the 
rental of housing in violation of federal law. In the former case, the 
Court reasoned that its Seventh Amendment precedents ``require[ed] trial 
by jury in actions unheard of at common law, provided that the action 
involves rights and remedies of the sort traditionally enforced in an 
action at law, rather than in an action at equity or admiralty.''\28\ 
The statutory cause of action, the Court found, had several counterparts 
in the

[[Page 1455]]
common law, all of which involved a right to trial by jury. In the 
latter case, the plaintiff had argued that the Amendment was 
inapplicable to new causes of action created by congressional action, 
but the Court disagreed. ``The Seventh Amendment does apply to actions 
enforcing statutory rights, and requires a jury trial upon demand, if 
the statute creates legal rights and remedies, enforceable in an action 
for damages in the ordinary courts of law.''\29\

        \26\Shields v. Thomas, 59 U.S. (18 How.) 253, 262 (1856).
        \27\Parsons v. Bedford, 28 U.S. (3 Pet.) 443, 447 (1830); Barton 
v. Barbour, 104 U.S. 126, 133 (1881). Formerly, it did not apply to 
cases where recovery of money damages was incidental to equitable relief 
even though damages might have been recovered in an action at law. Clark 
v. Wooster, 119 U.S. 322, 325 (1886); Pease v. Rathbun-Jones Eng. Co., 
243 U.S. 273, 279 (1917). But see Dairy Queen v. Wood, 369 U.S. 469 
(1962), discussed infra, p.1459.
        \28\Pernell v. Southall Realty, 416 U.S. 363 (1974).
        \29\Curtis v. Loether, 415 U.S. 189, 194 (1974). ``A damage 
action under the statute sounds basically in tort--the statute merely 
defines a new legal duty and authorizes the court to compensate a 
plaintiff for the injury caused by the defendants' wrongful breach. 
. . . [T]his cause of action is analogous to a number of tort actions 
recognized at common law.'' Id. at 195. See also Chauffeurs, Teamsters 
and Helpers Local 391 v. Terry, 494 U.S. 558 (1990) (suit against union 
for back pay for breach of duty of fair representation is a suit for 
compensatory damages, hence plaintiff is entitled to a jury trial); 
Wooddell v. International Bhd. of Electrical Workers Local 71, 112 S. 
Ct. 494 (1991) (similar suit against union for money damages entitles 
union member to jury trial; a claim for injunctive relief was incidental 
to the damages claim).
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        Omission of provision for a jury has been upheld in a number of 
other cases on the ground that the suit in question was not a suit at 
common law within the meaning of the Amendment, or that the issues 
raised were not peculiarly legal in their nature.\30\

        \30\Among such actions or issues were, e.g., (1) enforcement of 
claims against the United States, McElrath v. United States, 102 U.S. 
426, 440 (1880); see also Galloway v. United States, 319 U.S. 372, 388 
(1943); (2) suit under a territorial statute authorizing a special 
nonjury tribunal to hear claims against a municipality having no legal 
obligation but based on moral obligation only, Guthrie National Bank v. 
Guthrie, 173 U.S. 528, 534 (1899); see also United States v. Realty Co., 
163 U.S. 427, 439 (1896); New Orleans v. Clark, 95 U.S. 644, 653 (1877); 
(3) cancellation of a naturalization certificate for fraud, Luria v. 
United States, 231 U.S. 9, 27 (1913); (4) reversal of an order to deport 
an alien, Gee Wah Lee v. United States, 25 F.2d 107 (5th Cir. 1928), 
cert. denied, 277 U.S. 608 (1928); (5) damages for patent infringement, 
Filer & Stowell Co. v. Diamond Iron Works, 270 F. 489 (2d Cir. 1921), 
cert. denied, 256 U.S 691 (1921); (6) reversal of an award under the 
Longshoremen's and Harbor Workers' Compensation Act, Crowell v. Benson, 
285 U.S. 22, 45 (1932); and (7) reversal of a decision of customs 
appraisers on the value of imports, Auffmordt v. Hedden, 137 U.S. 310, 
329 (1890); (8) a summary disposition by referee in bankruptcy of issues 
regarding voidable preferences as asserted and proved by the trustee, 
Katchen v. Landy, 382 U.S. 323 (1966); and (9) a determination by a 
judge in calculating just compensation in a federal eminent domain 
proceeding of the issue as to whether the condemned lands were 
originally within the scope of the government's project or were adjacent 
lands later added to the plan, United States v. Reynolds, 397 U.S. 14 
(1970).
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        The amendment does not apply to cases in admiralty and maritime 
jurisdiction, in which the trial is by a court without a jury,\31\ nor 
does it reach statutory proceedings unknown to the common law, such as 
an application to a court of equity to enforce an order

[[Page 1456]]
of an administrative body.\32\ Thus, when Congress committed to 
administrative determination the finding of a violation of the 
Occupational Safety and Health Act with a discretion to fix a fine for a 
violation, the charged party being able to obtain judicial review of the 
administrative proceeding in a federal court of appeal and the fine 
being collectible in a suit in federal court, the argument that the 
absence of a jury trial in the process for a charged party violated the 
Seventh Amendment was unanimously rejected. ``At least in cases in which 
`public rights' are being litigated--e.g., cases in which the Government 
sues in its sovereign capacity to enforce public rights created by 
statutes within the power of Congress to enact--the Seventh Amendment 
does not prohibit Congress from assigning the factfinding function and 
initial adjudication to an administrative forum with which the jury 
would be incompatible.''\33\

        \31\Parsons v. Bedford, 28 U.S. (3 Pet.) 443 (1830); Waring v. 
Clarke, 46 U.S. (5 How.) 441, 460 (1847); Romero v. International 
Terminal Operating Co., 358 U.S. 354 (1959). But see Fitzgerald v. 
United States Lines, 374 U.S. 16 (1963).
        \32\NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937). 
See also ICC v. Brimson, 154 U.S. 447, 488 (1894); Yakus v. United 
States, 321 U.S. 414, 447 (1944).
        \33\Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 450 (1977).
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        On the other hand, if Congress assigns such cases to Article III 
courts, a jury may be required. In Tull v. United States,\34\ the Court 
ruled that the Amendment requires trial by jury in civil actions to 
determine liability for civil penalties under the Clean Water Act, but 
not to assess the amount of penalty. The penal nature of the Clean Water 
Act's civil penalty remedy distinguishes it from restitution-based 
remedies available in equity courts, and therefore makes it a remedy of 
the type that could be imposed only by courts of law.\35\ On the other 
hand, a jury need not invariably determine the remedy in a trial in 
which it must determine liability. Because the Court viewed assessment 
of the amount of penalty as involving neither the ``substance'' nor a 
``fundamental element'' of a common-law right to trial by jury, it held 
permissible the Act's assignment of that task to the trial judge.

        \34\481 U.S. 412 (1987).
        \35\The statute itself specified only a maximum amount for the 
penalty; the Court derived its ``punitive'' characterization from 
indications in legislative history that Congress desired consideration 
of the need for retribution and deterrence as well as the need for 
restitution.
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        More recently still, the Court relied on a broadened concept of 
``public rights'' to define the limits of congressional power to assign 
causes of action to tribunals in which jury trials are unavailable. In 
Granfinanciera, S.A. v. Nordberg,\36\ the Court declared that Congress 
``lacks the power to strip parties contesting matters of private right 
of their constitutional right to a trial by jury.'' The Seventh 
Amendment test, the Court indicated, is the same as the Article III test 
for whether Congress may assign adjudication of a

[[Page 1457]]
claim to a non-Article III tribunal.\37\ As a general matter, ``public 
rights'' involve ```the relationship between the Government and persons 
subject to its authority,''' while ``private rights'' relate to ```the 
liability of one individual to another.'''\38\ While finding room for 
``some debate,'' the Court determined that a bankruptcy trustee's right 
to recover for a fraudulent conveyance ``is more accurately 
characterized as a private rather than a public right,'' at least where 
the defendant had not submitted a claim against the bankruptcy 
estate.\39\

        \36\492 U.S. 33, 51-52 (1989).
        \37\``[I]f a statutory cause of action . . . is not a `public 
right' for Article III purposes, then Congress may not assign its 
adjudication to a specialized non-Article III court lacking `the 
essential attributes of the judicial power.' And if the action must be 
tried under the auspices of an Article III court, then the Seventh 
Amendment affords the parties the right to a jury trial whenever the 
cause of action is legal in nature. Conversely, if Congress may assign 
the adjudication of a statutory cause of action to a non-Article III 
tribunal, then the Seventh Amendment poses no independent bar to the 
adjudication of that action by a nonjury factfinder.'' Id. at 53-54 
(citation omitted).
        \38\Id. at 51 n.8 (quoting Crowell v. Benson, 285 U.S. 22, 50, 
51 (1932)). The Court qualified certain statements in Atlas Roofing and 
in the process refined its definition of ``public rights.'' There are 
some ``public rights'' cases, the Court explained, in which ``the 
Federal Government is not a party in its sovereign capacity,'' but which 
involve ``statutory rights that are integral parts of a public 
regulatory scheme.'' It is in cases of this nature that Congress may 
``dispense with juries as factfinders through its choice of an 
adjudicative forum.'' This does not mean, however, that Congress may 
assign ``at least the initial factfinding in all cases involving 
controversies entirely between private parties to administrative 
tribunals or other tribunals not involving juries, so long as they are 
established as adjuncts to Article III courts.'' 492 U.S. at 55 n.10 
(emphasis added).
        \39\Id. at 55. On the other hand, a creditor who does submit a 
claim against the bankruptcy estate subjects himself to the bankruptcy 
court's equitable power, and is not entitled to a jury trial when 
subsequently sued by the bankruptcy trustee to recover preferential 
monetary transfers. Langenkamp v. Culp, 498 U.S. 42 (1990).
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        The Continuing Law-Equity Distinction.--The use of the term 
``common law'' in the Amendment as indicating those cases in which the 
right to jury trial was to be preserved reflected, of course, the 
division of the English and United States legal systems into separate 
law and equity jurisdictions, in which actions cognizable in courts of 
law generally were triable to a jury while in equity there was no right 
to a jury. In the federal court system there were unitary courts having 
jurisdiction in both law and equity, but distinct law and equity 
procedures, including the use or nonuse of the jury. Adoption of the 
Federal Rules of Civil Procedure in 1938 merged law and equity into a 
single civil jurisdiction and established uniform rules of procedure. 
Legal and equitable claims which previously had to be brought as 
separate causes of action on different ``sides'' of the court could now 
be joined in a single action, and in some instances, such as compulsory 
counterclaims, had to be joined in one action.\40\ But the traditional 
distinction be

[[Page 1458]]
tween law and equity for purposes of determining when there was a 
constitutional right to trial by jury remained and led to some 
difficulty.\41\

        \40\5 J. Moore, Federal Practice Sec. Sec. 38.01-38.05 (2d ed. 
1971).
        \41\Under the old equity rules it had been held that the 
absolute right to a trial of the facts by a jury could not be impaired 
by any blending with a claim, properly cognizable at law, of a demand 
for equitable relief in aid of the legal action or during its pendency. 
Hipp v. Babin, 60 U.S. (19 How.) 271, 278 (1857). The Seventh Amendment 
was interpreted to mean that equitable and legal issues could not be 
tried in the same suit, so that such aid in the federal courts had to be 
sought in separate proceedings. Scott v. Neely, 140 U.S. 106, 109 
(1891); Bennett v. Butterworth, 52 U.S. (11 How.) 669 (1850); Lewis v. 
Cocks, 90 U.S. (23 Wall.) 466, 470 (1874); Killian v. Ebbinghaus, 110 
U.S. 568, 573 (1884); Buzard v. Houston, 119 U.S. 347, 351 (1886). Where 
an action at law evoked an equitable counterclaim the trial judge would 
order the legal issues to be separately tried after the disposition of 
the equity issues. In this procedure, however, res judicata and 
collateral estoppel could operate so as to curtail the litigant's right 
to a jury finding on factual issues common to both claims. But priority 
of scheduling was considered to be a matter of discretion. Federal 
statutes prohibiting courts of the United States from sustaining suits 
in equity where the remedy was complete at law served to guard the right 
of trial by jury and were liberally construed. Schoenthal v. Irving 
Trust Co., 287 U.S. 92, 94 (1932).
        Nor was the distinction between law and equity to be obliterated 
by state legislation. Thompson v. Railroad Companies, 73 U.S. (6 Wall.) 
134 (1868). So, where state law, in advance of judgment, treated the 
whole proceeding upon a simple contract, including determination of 
validity and of amount due, as an equitable proceeding, it brought the 
case within the federal equity jurisdiction upon removal. Ascertainment 
of plaintiff's demand being properly by action at law, however, the fact 
that the equity court had power to summon a jury on occasion did not 
afford an equivalent of the right of trial by jury secured by the 
Seventh Amendment. Whitehead v. Shattuck, 138 U.S. 146 (1891); Buzard v. 
Houston, 119 U.S. 347 (1886); Greeley v. Lowe, 155 U.S. 58, 75 (1894). 
But where state law gave an equitable remedy, such as to quiet title to 
land, the federal courts enforced it, if it did not obstruct the rights 
of the parties as to trial by jury. Clark v. Smith, 38 U.S. (13 Pet.) 
195 (1839); Holland v. Challen, 110 U.S. 15 (1884); Reynolds v. 
Crawfordsville Bank, 112 U.S. 405 (1884); Chapman v. Brewer, 114 U.S. 
158 (1885); Cummings v. National Bank, 101 U.S. 153, 157 (1879); United 
States v. Landram, 118 U.S. 81 (1886); More v. Steinbach, 127 U.S. 70 
(1888). Cf. Ex parte Simons, 247 U.S. 321 (1918).
        By the inclusion in the Law and Equity Act of 1915 of 
Sec. 274(b) of the Judicial Code, 38 Stat. 956, the transfer of cases to 
the other side of the court was made possible. The new procedure 
permitted legal questions arising in an equity action to be determined 
therein without sending the case to the law side. This section also 
permitted equitable defenses to be interposed in an action at law. The 
same order was preserved as under the system of separate courts. The 
equitable issues were disposed of first, and if a legal issue remained, 
it was triable by a jury. Enelow v. New York Life Ins. Co., 293 U.S. 379 
(1935). See also Liberty Oil Co. v. Condon Bank, 260 U.S. 235 (1922). 
There was no provision for legal counterclaims in an equitable action, 
for the reason that Equity Rule 30, requiring the answer to a bill in 
equity to state any counterclaim arising out of the same transaction, 
was not intended to change the line between law and equity and was 
construed as referring to equitable counterclaims only. American Mills 
Co. v. American Surety Co., 260 U.S. 360, 364 (1922); Stamey v. United 
States, 37 F.2d 188 (W.D. Wash. 1929). Equitable jurisdiction existing 
at the time of the filing of the bill was not disturbed by the 
subsequent availability of legal remedies, and the scheduling was 
discretionary. American Life Ins. Co. v. Stewart, 300 U.S. 203 (1937).
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        This difficulty has been resolved by stressing the fundamental 
nature of the jury trial right and protecting it against diminution

[[Page 1459]]
through resort to equitable principles. In Beacon Theatres v. 
Westover,\42\ the Court held that a district court erred in trying all 
issues itself in an action in which the plaintiff sought a declaratory 
judgment and an injunction barring the defendant from instituting an 
antitrust action against it, and the defendant had filed a counterclaim 
alleging violation of the antitrust laws and asking for treble damages. 
It did not matter, the Court ruled, that the equitable claims had been 
filed first and the law counterclaims involved allegations common to the 
equitable claims. Subsequent jury trial of these issues would probably 
be precluded by collateral estoppel, hence ``only under the most 
imperative circumstances which in view of the flexible procedures of the 
Federal Rules we cannot now anticipate, can the right to a jury trial of 
legal issues be lost through prior determination of equitable 
claims.''\43\ Then in Dairy Queen v. Wood,\44\ in which the plaintiff 
sought several types of relief, including an injunction and an 
accounting for money damages, the Court held that, even though the claim 
for legal relief was incidental to the equitable relief sought, the 
Seventh Amendment required that the issues pertaining to that legal 
relief be tried before a jury, because the primary rights being 
adjudicated were legal in character. Thus, the rule that emerged was 
that legal claims must be tried before equitable ones and before a jury 
if the litigant so wished.\45\

        \42\359 U.S. 500 (1959).
        \43\Id. at 510-11.
        \44\369 U.S. 469 (1962).
        \45\If legal and equitable claims are joined, and the court 
erroneously dismisses the legal claims and decides common issues in the 
equitable action, the plaintiff cannot be collaterally estopped from 
relitigating those common issues in a jury trial. Lytle v. Household 
Manufacturing, Inc., 494 U.S. 545 (1990).
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        In Ross v. Bernhard,\46\ the Court further held that the right 
to a jury trial depends on the nature of the issue to be tried rather 
than the procedural framework in which it is raised. The case involved a 
stockholder derivative action,\47\ which has always been considered to 
be a suit in equity. The Court agreed that the action

[[Page 1460]]
was equitable but asserted that it involved two separable claims. The 
first, the stockholder's standing to sue for a corporation is an 
equitable issue; the second, the corporation's claim asserted by the 
stockholder, may be either equitable or legal. Because the 1938 merger 
of law and equity in the federal courts eliminated any procedural 
obstacles to transferring jurisdiction to the law side once the 
equitable issue of standing was decided, the Court continued, if the 
corporation's claim being asserted by the stockholder was legal in 
nature, it should be heard on the law side and before a jury.\48\ 
Whether this analysis will be followed in other areas so that the right 
to a jury trial extends to all legal issues in actions formerly within 
equity's concurrent jurisdiction is a question now open.\49\

        \46\396 U.S. 531 (1970).
        \47\The stockholders' derivative action is a creation of equity 
made necessary by the traditional concept of ``the corporate entity'' or 
the ``concept of separate personality.'' That is, the corporation is an 
entity distinct and separate from its shareholders. Thus, while 
shareholders were relieved from unlimited liability for corporate 
liabilities, the complementary result was that harm to the corporation 
did not confer any right of action upon a shareholder to sue to right 
that harm. But if the harm were caused by the abuse of those who managed 
and controlled the corporation, the corporation naturally would not 
proceed against them and the common law courts would not allow the 
shareholders to bring an action running to the ``separate personality'' 
of the corporation; equity thus permitted a derivative action in which 
the shareholder is permitted to set in motion the adjudication of a 
cause of action belonging to the corporation. Prunty, The Shareholders' 
Derivative Suit: Notes on Its Derivation, 32 N.Y.U. L. Rev. 980 (1957).
        \48\Justices Stewart and Harlan and Chief Justice Burger 
dissented, arguing that the Seventh Amendment did not expand the right 
to a jury trial, that the Rules simply preserved the right as it had 
existed, and that it was error to think that the two could somehow 
``magically interact'' to enlarge the right in a way that neither did 
alone. Ross v. Bernhard, 396 U.S. 531, 543 (1970).
        \49\Among the possibilities in which a legal right was 
enforceable in equity in the absence of an adequate remedy at law are 
suits to compel specific performance of a contract, suits for 
cancellation of a contract, and suits to enjoin tortious action. On 
Ross' implications, see J. Moore, Federal Practice Sec. Sec. 38.11[8.-
8], 38.11[9] (2d ed. 1971).
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        Procedures Limiting Jury's Role.--As was noted above, the 
primary purpose of the Amendment was to preserve the historic line 
separating the province of the jury from that of the judge, without at 
the same time preventing procedural improvement which did not transgress 
this line. Elucidating this formula, the Court has achieved the 
following results: it is constitutional for a federal judge, in the 
course of trial, to express his opinion upon the facts, provided all 
questions of fact are ultimately submitted to the jury,\50\ to call the 
jury's attention to parts of the evidence he deems of special 
importance,\51\ being careful to distinguish between matters of law and 
matters of opinion in relation thereto,\52\ to inform the jury when 
there is not sufficient evidence to justify a verdict, that such is the 
case,\53\ to require a jury to answer specific interrogatories in 
addition to rendering a general verdict,\54\ to direct the

[[Page 1461]]
jury, after the plaintiff's case is all in, to return a verdict for the 
defendant on the ground of the insufficiency of the evidence,\55\ to set 
aside a verdict which in his opinion is against the law or the evidence, 
and order a new trial,\56\ to refuse defendant a new trial on the 
condition, accepted by plaintiff, that the latter remit a portion of the 
damages awarded him,\57\ but not, on the other hand, to deny plaintiff a 
new trial on the converse condition, although defendant accepted it.\58\ 
Nor can a Court of Appeals reverse the jury's finding on the issue of 
reasonableness of petitioner's conduct, in an indemnity action for 
damages respondent had paid petitioner's employee, on the ground that as 
a matter of law petitioner had not acted reasonably; ``[u]nder the 
Seventh Amendment, that issue should have been left to the jury's 
determination.''\59\

        \50\Vicksburg & Meridian R.R. v. Putnam, 118 U.S. 545, 553 
(1886); United States v. Philadelphia & Reading R.R., 123 U.S. 113, 114 
(1887).
        \51\Vicksburg & Meridian R.R. v. Putnam, 118 U.S. 545 (1886) 
(citing Carver v. Jackson, 29 U.S. (4 Pet.) 1, 80 (1830); Magniac v. 
Thompson, 32 U.S. (7 Pet.) 348, 390 (1833); Mitchell v. Harmony, 54 U.S. 
(13 How.) 115, 131 (1852); Transportation Line v. Hope, 95 U.S. 297, 302 
(1877)).
        \52\Games v. Dunn, 39 U.S. (14 Pet.) 322, 327 (1840).
        \53\Sparf and Hansen v. United States, 156 U.S. 51, 99-100 
(1895); Pleasants v. Fant, 22 Wall, (89 U.S.) 116, 121 (1875); Randall 
v. Baltimore & Ohio R.R., 109 U.S. 478, 482 (1883); Meehan v. Valentine, 
145 U.S. 611, 625 (1892); Coughran v. Bigelow, 164 U.S. 301 (1896).
        \54\Walker v. New Mexico So. Pac. R.R., 165 U.S. 593, 598 
(1897).
        \55\Treat Mfg. Co. v. Standard Steel & Iron Co., 157 U.S. 674 
(1895); Randall v. Baltimore & Ohio R.R., 109 U.S. 478, 482 (1883), and 
cases cited therein.
        \56\Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1889).
        \57\Arkansas Cattle Co. v. Mann, 130 U.S. 69, 74 (1889).
        \58\Dimick v. Schiedt, 293 U.S. 474, 476-78 (1935).
        \59\International Terminal Operating Co. v. N. V. Nederl. Amerik 
Stoomv, Maats., 393 U.S. 74, 75 (1968). But see Neely v. Martin K. Eby 
Construction Co., 386 U.S. 317 (1967), where the Court held that the 
Seventh Amendment does not bar an appellate court from granting a 
judgment n. o. v. insofar as ``there is no greater restriction on the 
province of the jury when an appellate court enters judgment n. o. v. 
than when a trial court does.'' Id. at 322.
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        Directed Verdicts.--In 1913 the Court in Slocum v. New York Life 
Ins. Co.,\60\ held that a federal appeals court lacked authority to 
order the entry of a judgment contrary to the verdict in a case in which 
the federal trial court should have directed a verdict for one party, 
but the jury had found for the other party contrary to the evidence; the 
only course open to either court was to order a new trial. While plainly 
in accordance with the common law as it stood in 1791, the five-to-four 
decision was subjected to a heavy fire of professional criticism based 
on convenience and urging recognition of capacity for growth in the 
common law.\61\ Slocum was then impaired, if not completely undermined, 
by subsequent holdings.

        \60\228 U.S. 364 (1913).
        \61\F. James, Civil Procedure 332-33 & n.8 (1965).
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        In the first of these cases, the Court held that a trial court 
had the right to enter a judgment for the plaintiff on the verdict of 
the jury after having reserved decision on a motion by the defendant for 
dismissal on the ground of insufficient evidence.\62\ The Court 
distinguished Slocum while noting that its ruling qualified some of its 
assertions in Slocum.\63\ In the second case\64\ the Court sustained a 
United States district court in rejecting the defendant's

[[Page 1462]]
motion for dismissal and in peremptorily directing a verdict for the 
plaintiff. The Supreme Court held that there was ample evidence to 
support the verdict and that the trial court, in following Arkansas 
procedure in the diversity action, had acted consistently with the 
Federal Conformity Act.\65\ In the third case,\66\ which involved an 
action against the Government for benefits under a war risk insurance 
policy which had been allowed to lapse, the trial court directed a 
verdict for the Government on the ground of the insufficiency of the 
evidence, and was sustained in so doing by both the appeals court and 
the Supreme Court. Three Justices, speaking by Justice Black, dissented 
in an opinion in which it is asserted that ``today's decision marks a 
continuation of the gradual process of judicial erosion which in one-
hundred-fifty years has slowly worn away a major portion of the 
essential guarantee of the Seventh Amendment.''\67\ That the Court 
should experience occasional difficulty in harmonizing the idea of 
preserving the historic common law covering the relations of judge and 
jury with the notion of a developing common law is not surprising.\68\

        \62\Baltimore & Carolina Line v. Redman, 295 U.S. 654 (1935).
        \63\Id. at 661. The Court's opinions in both Redman and Slocum 
were authored by Justice Van Devanter.
        \64\Lyon v. Mutual Benefit Ass'n, 305 U.S. 484 (1939).
        \65\Ch. 255, Sec. 5, 17 Stat. 197 (1872), now superseded by the 
Federal Rules of Civil Procedure.
        \66\Galloway v. United States, 319 U.S. 372, 389 (1943), wherein 
the Court said ``the practice has been approved explicitly in the 
promulgation of the Federal Rules of Civil Procedure,'' citing Berry v. 
United States, 312 U.S. 450 (1941). In the latter case the Court 
remarked that the new rule has given ``district judges, under certain 
circumstances, . . . the right (but not the mandatory duty) to enter a 
judgment contrary to the jury's verdict without granting a new trial. 
But that rule has not taken away from juries and given to judges any 
part of the exclusive power of juries to weigh evidence and determine 
contested issues of facts--a jury being the constitutional tribunal 
provided for trying facts in courts of law.'' Id. at 452-53.
        \67\319 U.S. 372, 397. The case, being a claim against the 
United States, need not have been tried by a jury except for the 
allowance of Congress.
        \68\See, e.g., Neely v. Martin K. Eby Construction Co., Inc., 
386 U.S. 317 (1967), interpreting Rules 50(b), 50(c)(2) and 50(d) of the 
Federal Rules of Civil Procedure, as well as the Seventh Amendment.
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        Jury Trial Under the Federal Employers' Liability Act.--One 
aspect of the problem of delineating the respective provinces of judge 
and jury divided the Justices for a lengthy period but now appears 
quiescent--cases arising under the Federal Employers' Liability Act. The 
argument was frequently couched by the majority in terms of protecting 
the function of the jury from usurpation by judges intent on subverting 
and limiting remedial legislation enacted by Congress,\69\ and by the 
minority in terms of the costs to

[[Page 1463]]
the Supreme Court in time and effort spent in evaluating the quantum of 
evidence necessary to create a jury question.\70\

        \69\E.g., Tiller v. Atlantic Coast Line R.R., 318 U.S. 54 
(1943), in which Justice Black's opinion of the Court initiated the line 
of cases here considered; Bailey v. Central Vermont Ry., 319 U.S. 350 
(1943); Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29 (1944). See 
Rogers v. Missouri Pacific R.R., 352 U.S. 500, 507-510 (1957). Trial by 
jury is ``part and parcel of the remedy afforded railroad workers'' 
under the FELA. Bailey v. Central Vermont Ry., supra, 354. ``The 
difference between the majority and minority of the Court in our 
treatment of FELA cases concerns the degree of vigilance we should 
exercise in safeguarding the jury trial--guaranteed by the Seventh 
Amendment.'' Harris v. Pennsylvania R.R., 361 U.S. 15, 17 (1959) 
(Justice Douglas concurring). ``[T]his Court is vigilant to exercise its 
power of review . . . to correct instances of improper administration of 
the Act and to prevent its erosion by narrow and niggardly 
construction.'' Rogers v. Missouri Pacific R.R., supra, at 509.
        \70\Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524 (1957) 
(Justice Frankfurter dissenting), contains a lengthy review and critique 
of the Court's practice.
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        Although the considerations present in the FELA cases were not 
inherently different from those in any civil case where the direction of 
a verdict or a decision of an issue by the court may raise sub silentio 
the issue whether the Seventh Amendment right to a jury trial has been 
impaired by court usurpation of the jury function, cases under the FELA, 
which retained the common-law requirements of negligence as a 
prerequisite to recovery, involved peculiarly difficult decisions as to 
the adequacy of proof of negligence. ``Special and important reasons for 
the grant of certiorari in these cases are certainly present,'' the 
Court wrote in a leading case, ``when lower federal and state courts 
persistently deprive litigants of their right to a jury 
determination.''\71\ The operating test was: ``Under this statute the 
test of a jury case is simply whether the proofs justify with reason the 
conclusion that employer negligence played any part, even the slightest, 
in producing the injury or death for which damages are sought. It does 
not matter that, from the evidence, the jury may also with reason, on 
ground of probability, attribute the result to other causes, including 
the employee's contributory negligence. Judicial appraisal of the proofs 
to determine whether a jury question is presented is narrowly limited to 
the single inquiry whether, with reason, the conclusion may be drawn 
that negligence of the employer played any part at all in the injury or 
death. Similar issues have arisen under such statutes as the Jones 
Act\72\ and the Safety Appliance Act.\73\

        \71\Rogers v. Missouri Pacific R.R., 352 U.S. 500, 510 (1957).
        \72\Schulz v. Pennsylvania R.R., 350 U.S. 523 (1956); Ferguson 
v. Moore-McCormack Lines, 352 U.S. 521 (1957); Michalic v. Cleveland 
Tankers, 364 U.S. 325 (1960). See also Senko v. La Crosse Dredging 
Corp., 352 U.S. 370 (1957); A. & G. Stevedores v. Ellerman Lines, 369 
U.S. 355 (1962).
        \73\Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 525 n.2 
(1957) (Justice Frankfurter dissenting).
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        ``Judges are to fix their sights primarily to make that 
appraisal and, if that test is met, are bound to find that a case for 
the jury is made out whether or not the evidence allows the jury a 
choice of other probabilities.''\74\ A persistent dissent in the line of 
cases

[[Page 1464]]
expressed the fear that in FELA cases ``anything that a jury says goes, 
with the consequences that all meaningful judicial supervision over jury 
verdicts in such cases has been put at an end. . . . If so, . . . the 
time has come when the Court should frankly say so. If not, then the 
Court should at least give expression to the standards by which the 
lower courts are to be guided in these cases.''\75\

        \74\Id. at 506-07. The cases are collected id. at 510 n.26. The 
cases are tabulated and categorized in Wilkerson v. McCarthy, 336 U.S. 
53, 68-73 (1949) (Justice Douglas concurring), and Harris v. 
Pennsylvania R.R., 361 U.S. 15, 16-25 (1959). See also Harrison v. 
Missouri Pacific R.R., 372 U.S. 248 (1963); Basham v. Pennsylvania R.R., 
372 U.S. 699 (1963).
        \75\Harris v. Pennsylvania R.R., 361 U.S. 15, 27-28 (1959) 
(Justice Harlan dissenting). See also Ferguson v. Moore-McCormack Lines, 
352 U.S. 521, 524 (1957) (Justice Frankfurter dissenting); Dick v. New 
York Life Ins. Co., 359 U.S. 437, 447 (1959) (Justice Frankfurter 
dissenting).
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      Appeals From State Courts to the Supreme Court

        The clause of the Amendment prohibiting the re-examination of 
any fact found by a jury is not restricted in its application to suits 
at common law tried before juries in courts of the United States. It 
applies equally to a case tried before a jury in a state court and 
brought to the Supreme Court on appeal.\76\ Note, however, that the 
Court has frequently indicated that in cases involving a claim of a 
denial of constitutional rights it is free to examine and review the 
evidence upon which lower court conclusions are based, a position that 
under some circumstances could conflict with the principle of jury 
autonomy.\77\

        \76\The Justices v. Murray, 76 U.S. (9 Wall.) 274, 278 (1870); 
Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 242-46 (1897).
        \77\See Time, Inc. v. Pape, 401 U.S. 279, 284-92 (1971), and 
cases cited therein.