70 Nw. U. L. Rev. 486 (1975-1976)
Seventh Amendment Right to Jury Trial: A Study in the Irrationality of Rational Decision Making

handle is hein.journals/illlr70 and id is 490 raw text is: Copyright 1976 by Northwestern University School of Law  Printed In U.SA.
Northwestern University Law Review                          Vol. 70, No. 3
Martin H. Redish*
The seventh amendment provides: In suits at common law,
where the value in controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved . . . . The amendment's choice
of words is intriguing because of its use of the term preserved.
Use of this word has caused the seventh amendment to hold a unique
position in the realm of constitutional interpretation. For many
years following the amendment's adoption it was thought that its in-
terpretation was to be governed by an exclusively historical test. As
the Supreme Court once phrased the test:2
In order to ascertain the scope and meaning of the Seventh
Amendment, resort must be had to the appropriate rules of the
common law established at the time of the adoption of that con-
stitutional provision in 1791.
Use of a strict historical test presents obvious problems. It is
often difficult to determine what questions were, under the common
law of England' in 1791, legal, for which a jury trial could be had,
and which questions were equitable, for which there was no right to
jury trial.4 These uncertainties have caused courts applying the histori-
* Assist. Professor of Law, Northwestern University; A.B. 1967, University of
Pennsylvania; J.D. 1970, Harvard Law School.
1 U.S. CONSr. amend. VII.
2 Dimick v. Schiedt, 293 U.S. 474, 476 (1935).
3 It is generally thought that the historical test was intended to look to the 1791
common law practice of England, rather than that of the states. Baltimore & Caro-
lina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935). See Wolfram, The Constitu-
tional History of the Seventh Amendment, 57 MINN. L Rav. 639, 640 (1973)
[hereinafter cited as Wolfram].
4 See, e.g., F. JAMES, CMvL PROCEURE (1965) [hereinafter cited as JMMS]:
Before the adoption of the constitutions the line between law and equity ...
was not a fixed and static one. There was a continual process of borrowing
by one jurisdiction from the other; there were less frequent instances of a slough-
ing off of older functions....
Id. at 340-41. See also Shapiro & Coquillette, The Fetish of Jury Trial in Civil
Cases: A Comment on Rachal v. Hill, 85 HARv. L. Rav. 442, 449 (1971).


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