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85 Harv. L. Rev. 442 (1971-1972)
The Fetish of Jury Trial in Civil Cases: A Comment on Rachal v. Hill

handle is hein.journals/hlr85 and id is 460 raw text is: COMMENTS THE FETISH OF JURY TRIAL IN CIVIL CASES: A COMMENT ON RACHAL v. HILL David L. Shapiro * and Daniel B. Coquillette Rachal v. Hill, a 1970 decision by the Fifth Circuit, indicated that the seventh amendment right to jury trial may severely limit developments in the principles of res judicata. Professor Shapiro and Mr. Coquillette argue that such a limitation would be unsound, and that it finds no support in history or Supreme Court precedent. U NDER the influence of Supreme Court decisions on the right to jury trial in civil cases in the federal courts,' most observ- ers seem to develop a Pavlovian reaction to a seventh amendment, jury trial issue whenever it arises. Any close question - and sometimes one that is not so close -is resolved in favor of the jury trial right without serious analysis of history, precedent, or policy. What may be of only passing interest in the classroom or in legal commentary becomes a cause for concern when it spreads to the lower federal courts. Yet the signs of contagion are ap- pearing - perhaps the most conspicuous recent example being the decision of the Fifth Circuit in Rachal v. Hill.3 At a time of growing concern over crowded dockets, the size of judgments, and the costs of litigation, the question whether we have more trial by jury than we want or need is well worth asking -and *Professor of Law, Harvard Law School. A.B. Harvard, 1954; LL.B. Har- vard, 1957. **A.B. Williams, x966; B.A. (Juris.) Oxford, i969; J.D. Harvard, 1971. 1 E.g., Ross v. Bernhard, 396 U.S. 531 (3970); Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962) ; Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959). 2 See, e.g., Crane Co. v. American Standard, Inc., 326 F. Supp. 766 (S.D.N.Y. 1971) (upholding defendant's right to a jury on an issue that had already been determined adversely to it in the same proceeding; the prior determination was rendered on appeal from a final judgment denying equitable relief); Cannon v. Texas Gulf Sulphur Co., 323 F. Supp. 990 (S.D.N.Y. 1971) (following result of Rachal v. Hill). An exception to this trend, however, can be seen in cases arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 20ooe to 20ooe-i5 (x964), perhaps in part because of the fear that in some areas of the country juries would frustrate the statutory objective. See Developments in the Law- Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 HARv. L. REV. 1109, 1264 & n.371 (197i). 3 435 F.2d 59 (5th Cir. 1970), cert. denied, 403 U.S. 904 (1971).

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