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100 Tex. L. Rev. 467 (2021-2022)
Equity, Law, and the Seventh Amendment

handle is hein.journals/tlr100 and id is 509 raw text is: Equity, Law, and the Seventh Amendment Samuel L. Bray* The Seventh Amendment requires that the civil jury trial right be preserved in Suits at common law. Those bits of constitutional text have long set the justices on a path of historical reconstruction. For roughly two centuries, the Supreme Court has determined the scope of the civil jury trial right in federal court by reference to historic English courts. But no one is happy with the current test. In one widely used variant, it requires an inquiry into analogous 1791 actions, followed by an inquiry into the legal or equitable provenance of the remedy sought, and then a weighing that favors the second of these two incommensurable inquiries. The test is anachronistic and internally incoherent, and it leads to anomalous results. This Article critiques the current approach and offers a new test for the scope of the Seventh Amendment civil jury trial right. This test would presume a civil jury trial right, but with three categorical exceptions. One exception is for areas of substantive law developed exclusively in equity, another is for remedies developed in equity, and the third is for case-aggregating devices developed in equity (e.g., the class action). The historical inquiry that is required would be somewhat stylized. But it is more manageable than the current approach, and it would allow judges to determine the scope of the civil jury trial right with greater predictability and accuracy. INTRODUCTION .......................................................................................... 468 I. WHY THE SCOPE OF THE CIVIL JURY TRIAL RIGHT IS DETERMINED BY HISTORY ................................................................. 473 II. THE CURRENT APPROACH ..................................................................478 A . The Terry and M onterey Tests.................................................478 B. Why the Federal Approach Is Called Dynamic...................482 III. THE HISTORICAL WEAKNESS OF THE CURRENT APPROACH.............. 484 A. The Anachronism of Claims and Remedies.....................484 B. The Failure to Reckon with Equity's Exclusive Jurisdiction.. 487 * Professor, Notre Dame Law School. For comments and helpful conversations, I am grateful to Will Baude, Christian Burset, Nathan Chapman, Katherine Mims Crocker, Marc Degirolami, Jeffrey Gordon, Ranjit Hakim, Philip Hamburger, Larissa Katz, Dan Kelly, Andrew Kull, John Langbein, Mark Leeming, Paul Miller, Adam Muchmore, David Partlett, Jeff Pojanowski, Theodore Rave, Richard Re, Caprice Roberts, Stephen Ross, Arden Rowell, Stephen E. Sachs, Henry Smith, Larry Solum, Suja Thomas, Jay Tidmarsh, Andrew Tuch, Julian Velasco, David Waddilove, Daniel Walters, Steve Yeazell, and Stephen Yelderman, as well as the participants in the Harvard Public Law Workshop; the Equity and Commercial Law conference at St. Hugh's College, Oxford; and law faculty workshops at Duke University, Emory University, Pennsylvania State University, St. John's University, Washington University in St. Louis, and Yale University.

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