The Seventh Amendment, Modern Procedure and the English Common Law

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Judges increasingly use procedural devices which preclude juries from deciding cases or which re-examine decisions by juries. Although the use of these procedures has become a controversial subject in scholarly debate, scholars generally have not questioned their constitutionality. The Seventh Amendment provides that facts tried by a jury may be re-examined only according to the rules of the common law, which the Supreme Court has held means the rules of the English common law in 1791. To determine then the constitutionality of new procedural devices, the Supreme Court has compared them to the procedures under the English common law. In its analyses, the Court has made significant errors, misinterpreting the English common law devices and making inaccurate comparisons of the English devices to the modern procedures. These missteps have led the Supreme Court to evaluate the constitutionality of the procedural devices by a vague standard unrelated to the actual characteristics of the English common law. This Article argues that ten principles can be derived from the English common law to begin the re-analysis of the constitutionality of modern procedures that affect the jury trial right. Given the importance that these new procedures, including summary judgment, play in modern litigation, this Article argues that the Court should re-assess the constitutionality of the procedures in light of these principles and stare decisis.
Original languageEnglish (US)
Pages (from-to)687-754
Number of pages68
JournalWashington University Law Quarterly
Issue number3
StatePublished - 2004


  • Seventh Amendment


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