In Suits at common law...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....Amendment VII
The principle that juries determine questions of fact is a fundamental underpinning of our legal system. The Seventh Amendment was drafted in response to complaints raised during the ratification process that the Constitution failed to protect the institution of the civil jury. The Reexamination Clause, in particular, answered the chorus of objections in the ratifying conventions that the Supreme Court's appellate power "both as to Law and Fact" would effectively abolish the civil jury by allowing the Supreme Court to retry facts on appeal. It is for this reason that Justice Joseph Story characterized the Reexamination Clause as "more important" than the initial phrase of the amendment guaranteeing juries in civil trials. Parsons v. Bedford (1830).
The "law and facts" provision in Article III, combined with the lack of express protection for civil juries in the Constitution, caused Anti-Federalists to fear that the right to juries in civil matters would be abolished upon the Constitution's ratification. Both George Mason and Richard Henry Lee of Virginia argued that the Constitution abolished juries in all civil cases. Lee noted: "By Article 3, section 2,...the Supreme Court shall have appellate jurisdiction, both as to law and fact....By court is understood a court consisting of judges; and the idea of a jury is excluded."
In The Federalist No. 83, Alexander Hamilton denied that the Constitution's silence regarding civil juries amounted to an abolition of civil juries. Reexaminations of facts, he said, would only result in a remand for another jury trial. He declared that under the Constitution, Congress had the power to protect the right to a jury trial in civil cases. Hamilton's disclaimer did not silence the Anti-Federalist demands for constitutional guarantees, and the ratifying conventions of New York, Virginia, Massachusetts, and New Hampshire proposed adding a protection for civil juries in the Constitution. Thus, although the Anti-Federalists were unsuccessful in preventing the ratification of the Constitution, they made it clear that their demand for a right to a civil jury trial would have to be acceded to.
The Seventh Amendment's Reexamination Clause prohibits reviewing courts from reexamining any fact tried by a jury in any manner other than according to the common law. Juries are not required in equitable or admiralty actions. Congress codified the distinction in the Judiciary Act of 1789, prior to the ratification of the Seventh Amendment. Under common law, appellate courts could review judgments only on writ of error, which limited review to questions of law. For example, in Parsons v. Bedford, Justice Story held that reviewing courts have no power to grant new trials based on a reexamination of the facts tried by a jury. The court can consider only those facts that "bear upon any question of law arising at the trial," and if there is error, the reviewing court's only option is to grant a new trial. Earlier, while on circuit in United States v. Wonson (1812), Story noted that a writ of error allows examination of "general errors of law only," and appellate courts "never can retry the issues already settled by a jury, where the judgment of the inferior court is affirmed." Trial courts could order a new trial for good cause, but reviewing courts could only examine alleged errors of law. Story's opinion encapsulates the traditional meaning of the Reexamination Clause.
The advent of the Federal Rules of Civil Procedure, along with other procedural devices allowing courts to weigh evidence, has cut into the traditional interpretation of the Reexamination Clause. Specifically, procedures such as summary judgment and directed verdicts, which greatly affect the substantive power enjoyed by juries, seriously question the traditional view that appellate courts are only allowed to review questions of law, not fact. Dissenting in Parklane Hosiery Co. v. Shore (1979), Justice William H. Rehnquist declared, "[T]o sanction creation of procedural devices which limit the province of the jury to a greater degree than permitted at common law in 1791 is in direct contravention of the Seventh Amendment."
Reflecting this trend, the Supreme Court had, up until recently, consistently held that the allowable amount of damages, including punitive damages, "involves only a question of fact." St. Louis, Iron Mountain & Southern Ry. Co. v. Craft (1915); Barry v. Edmunds (1886). However, in Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001), the Court characterized punitive damages as a question of law, permitting an appeals court de novo review of excessive jury verdicts under the Cruel and Unusual Punishment Clause of the Eighth Amendment and therefore outside of the limitations of the Reexamination Clause.
A parallel trend is present in the handling of ordinary or compensable damages. The Court's decision in Gasperini v. Center for Humanities, Inc. (1996) specifically rejected the common-law standard of review in place in 1791 and validated review of the jury's fact-finding power by permitting appellate consideration of a jury award on the ground of excessiveness. The Court in Gasperini validated the previous practice, in which federal appellate courts had set aside jury verdicts only for "gross error," or if the result "shocked the conscience" or, later, if there was an "abuse of discretion" by the jury. None of these, the Court held, was contrary to the Reexamination Clause. It characterized such actions as "questions of law." In dissent, Justice Antonin Scalia stated, "It is not for us, much less for the Courts of Appeals, to decide that the Seventh Amendment's restriction on federal-court review of jury findings has outlived its usefulness."
Similarly, in Weisgram v. Marly Co. (2000), the Supreme Court rejected the argument that a reviewing court's striking of evidence from the record required remand to the lower court to consider whether a new trial was warranted. Instead, the Court found that a federal appellate court can direct the entry of judgment as a matter of law when, after "excis[ing] testimony erroneously admitted, there remains insufficient evidence to support the jury's verdict." The continuing erosion of the jury function exemplified in Gasperini and Weisgram seems to confirm what the Anti-Federalists sought to avoid and what the Framers of the Seventh Amendment provided against: the purpose of the Reexamination Clause was to insulate jury findings from judicial reexamination.
- David F. Forte
- Professor of Law
- Cleveland-Marshall College of Law