Trial by summary judgment? Erosion of the Seventh Amendment.In past years, federal courts have curtailed trials by jury through the use of summary judgment, a practice that has worn away at the Seventh Amendment's guarantee of the right to trial by jury in civil cases.(1)
Since the U.S. Supreme Court's 1986 ruling in a trilogy of cases posing questions regarding summary judgment,(2) the lower federal courts have used this tool to the extent that, in many instances, they have usurped the function of the jury, violating the Seventh Amendment.(3)
In none of the cases did the Court address whether there are Seventh Amendment limitations on Rule 56 of the Federal Rules of Civil Procedure The Federal Rules of Civil Procedure (FRCP) are rules governing civil procedure in United States district (federal) courts, that is, court procedures for civil suits. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved - the section dealing with summary judgment.
Supreme Court Justice Joseph Story initially interpreted the Seventh Amendment in United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. v. Wonson as guaranteeing the right to trial by jury in civil cases under a historical test.(4) This test determined application of the right based on English common law as it existed in 1791 when the amendment was adopted. The Supreme Court followed this test in later cases.(5)
The right guaranteed by the Seventh Amendment is both substantive and procedural. The amendment not only guarantees the right to trial by jury (procedural), but the interpretation of the amendment must follow common law, and the jury's decision may not be reexamined (substantive). Certainly the language in the amendment - "[N]o fact tried to jury shall be otherwise reexamined in any court of the United States than according to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. the common law" - places a restriction on the courts.
The Supreme Court, however, has never precisely clarified the substantive reexamination re·ex·am·ine also re-ex·am·ine
tr.v. re·ex·am·ined, re·ex·am·in·ing, re·ex·am·ines
1. To examine again or anew; review.
2. Law To question (a witness) again after cross-examination. language in the amendment. Applying a strict interpretation of the plain meaning of the language would limit the courts to common law practice in 1791. Then, the only way to challenge a lack of evidence was by a motion in arrest of judgement after a jury trial.(6) A demurer could challenge the sufficiency of the complaint.(7) A plea at bar or plea in abatement In Common-Law Pleading, a response by the defendant that does not dispute the plaintiff's claim but objects to its form or the time or place where it is asserted. could challenge a complaint, but if a dispute of fact arose, the plea was tried by jury. Nothing resembling a motion for summary judgment motion for summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on recorded (testimony outside court) affidavits (or declarations under penalty of perjury), depositions, admissions of fact, answers was then available.
The Supreme Court's interpretation of the Seventh Amendment underwent radical change in the early 20th century. The Court began to undermine the amendment's substance not long after World War 1.
Ex parte [Latin, On one side only.] Done by, for, or on the application of one party alone.
An ex parte judicial proceeding is conducted for the benefit of only one party. Peterson, a 1920 case, marked a major transformation in how the amendment was viewed.(8) The Supreme Court, in a 6-3 decision, upheld the use of an auditor whose opinion would be treated as prima facie evidence prima facie evidence
Evidence that would, if uncontested, establish a fact or raise a presumption of a fact. in a case to determine issues in dispute.
Justice Louis Brandeis Louis Dembitz Brandeis (November 13, 1856 – October 5, 1941) was an American litigator, Supreme Court Justice, advocate of privacy, and developer of the Brandeis Brief. In addition, he helped lead the American Zionist movement. wrote for the Court:
The command of the Seventh Amendment that "the right of trial by jury shall be preserved" does not require that old forms of practice and procedure be retained. It does not prohibit the introduction of new methods for determining what facts are actually in issue, nor does it prohibit the introduction of new rules of evidence.(9)
While the Court had earlier upheld use of summary judgment against a Seventh Amendment attack in Fidelity & Deposit Co. v. United States, it had not discussed the substantive components of the right to a jury.(10) What was most startling star·tle
v. star·tled, star·tling, star·tles
1. To cause to make a quick involuntary movement or start.
2. To alarm, frighten, or surprise suddenly. See Synonyms at frighten. about Ex parte Peterson was the Court's statement, "[The auditor's report Auditor's Report
Recorded in the annual report, the auditor's report tests to see that a corporation's financial statements comply with GAAP. This is sometimes referred to as the clean opinion.
Most auditor's reports consist of three paragraphs. ] will, unless rejected by the Court, be admitted at the jury trial as evidence of facts and findings embodied therein; but it will be treated at most, as prima facie evidence thereof."(11)
The Brandeis opinion casts aside any constitutional restriction, holding instead that the inherent Judicial power of the Court gives it the right to use whatever aids are necessary, to analyze complex matters.
Dimick v. Schiedt reflects the clash of differing interpretations of the amendment.(12) Justice George Sutherland, writing for the majority, said that only a constitutional amendment - not a court's interpretation - could alter a person's right to a trial by jury.
By contrast, Justice Harlan Justice Harlan or John M. Harlan may be:
US Supreme Court Justices:
but it does not prescribe any particular procedure by, which these benefits shall be obtained, . . . and it does not confine the trial judge, in determining what issues are for the jury and what for the court, to the particular forms of trial practice in vogue in 1791.(13)
The strict interpretation favored by the Sutherland majority contrasts starkly with the dissenters' view that the amendment was a matter of mere form without substantive limitations.
Later in the same term, the Court in Baltimore & C. Line v. Redman sustained the practice of deferring ruling on a motion for a directed verdict A procedural device whereby the decision in a case is taken out of the hands of the jury by the judge.
A verdict is generally directed in a jury trial where there is no other possible conclusion because the side with the Burden of Proof has not offered sufficient evidence to until after the jury verdict had been rendered.(14) The Court cited the historic test and paid lip service lip service
Verbal expression of agreement or allegiance, unsupported by real conviction or action; hypocritical respect: to the fundamental right to a jury trial. Nevertheless, it approved a procedural rule that, in essence, "reexamined" the verdict. The dissent in Dimick had now become the accepted view of the Court."(15)
In Galloway v. United States, the Court further diminished the role of the jury, upholding the use of a directed verdict.(16) Justice Wiley Rutledge, writing for the majority, found that the Seventh Amendment merely preserved the "institution of jury trial in only its most fundamental elements."(17)
In a piercing dissent, Justice Hugo Black Hugo LaFayette Black (February 27, 1886–September 25, 1971) was an American politician and jurist. A member of the Democratic Party, Black represented the state of Alabama in the United States Senate from 1926 to 1937, and served as an Associate Justice of the Supreme Court wrote -
In 1789, juries occupied the principal place in the administration of justice. They were frequently in both criminal and civil areas the arbiters not only of fact but of law... A long step toward the determination of facts by judges instead of by juries was the invention of the directed verdict."
The dissent also made a salient point by noting that the lower court weighed the evidence in making its decision to use a directed verdict, yet weighing the evidence is a fact-finding function reserved to the jury.
In Atlas Roofing Co. v. Occupational Safety Commission, the Court held that the Seventh Amendment does not prevent Congress from assigning fact-finding to an administrative agency An official governmental body empowered with the authority to direct and supervise the implementation of particular legislative acts. In addition to agency, such governmental bodies may be called commissions, corporations (e.g. instead of to a jury.(19) The Court added new reasoning to displace the jury - that is, to avoid choking the federal courts with new forms of litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. .
For the first time, the Court used economic reasoning to deny application of a constitutional right to a jury trial.(20) The Court in Parklane Hosiery hosiery
Knit or woven coverings for the feet and legs, worn inside shoes. In the 8th century BC, Hesiod referred to linings for shoes; the Romans wrapped their feet, ankles, and legs in long strips of leather or woven cloth. Co. v. Shore similarly rejected Seventh Amendment arguments for economic reasons.(21)
In 1989, the Court shifted to its early interpretation of the Seventh Amendment in Granfinanciera, S.A. v. Nordberg and rejected the economic argument.(22) The Court found unconstitutional part of Chapter 11 of the Bankruptcy Act Many statutes have been known as the Bankruptcy Act.
Justice Byron White, who wrote for the Atlas Roofing majority, dissented with two others in Granfinanciera, urging limitations on applying the Seventh Amendment.(23) Granfinanciera, however, turned on the question of the procedural right to a jury, not the question of how the jury should function.
In Lytle v. Household Manufacturing, Inc., the Court stated that although a judge may draw different conclusions from the evidence than the jury, it may not replace the jury.(24) According to the Granfinanciera majority, Congress "may not deprive parties litigating [matters of private right! of the Seventh Amendment right to a jury trial."(25)
Like Granfinanciera, Lyttle and Atlas Roofing also turned on the procedural right to a jury. The Court did not deal with the substantive provisions of the Seventh Amendment in any of these cases. The procedural right, however, becomes meaningless if the substantive right substantive right
A basic right, such as life or liberty, seen as constituting part of the order of society and considered independent of and not subordinate to the body of human law. is eliminated. The amendment, then, becomes hollow as the federal judiciary confines the jury function.
The Federal Rules of Civil Procedure, adopted in 1938, included a provision for summary judgment under Rule 56. The early application of the rule, however, was restricted by the federal appellate courts.(26) Congress delegated to the Supreme Court responsibility for drawing up the Federal Rules with the expressed intent that they not infringe the Seventh Amendment.(27)
In 1988, Congress removed from the section the direction that the rules not impair the right to trial by jury. Whatever Congress's intent in deleting the language, it cannot amend the Constitution. Only approval by three-quarters of the states can do that.
Under Rule 56, a trial court may grant summary judgment only if "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law Judgment as a matter of law (JMOL) is a motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case. JMOL is similar to summary judgment, which is a motion made before trial. ."(28) Depositions, answers to interrogatories Written questions submitted to a party from his or her adversary to ascertain answers that are prepared in writing and signed under oath and that have relevance to the issues in a lawsuit. , admissions, and affidavits may be used to pierce the allegations to determine whether any material facts are in dispute. Also, the evidence must be viewed in a light most favorable to the party that is opposing the motion.
This rule does not offend the Seventh Amendment. The lower federal courts' current application of the rule does. The standard established in Rule 56 has been misused to broaden the scope of the trial courts' inquiry to include weighing and balancing evidence when considering the substantive evidentiary ev·i·den·tia·ry
1. Of evidence; evidential.
2. For the presentation or determination of evidence: an evidentiary hearing.
Adj. 1. requirement. The Seventh Amendment is not only procedural but substantive in terms of jury functions.
Three That Made a Difference
The trilogy of 1986 cases dramatically affected the use of summary judgment in the lower federal courts. Celotex Corp. v. Catrett Celotex Corp. v. Catrett, 477 U.S. 317 (1986), was a case decided by the United States Supreme Court, written by then-Associate Justice (later Chief Justice) William Rehnquist. , the most widely cited by the lower courts, merely repeated what was held in Fidelity. Once a party moves for summary judgment, the nonmoving party must reveal evidence supporting the case.(29)
Celotex was basically a procedural case. Matsushita Electric Industrial Co. v. Zenith Radio Corp. held that summary judgment was appropriate in antitrust cases Although many in the computer field might equate "antitrust" with the long-running Microsoft trial (1998-2004), the U.S. government sued IBM three times in its history for antitrust violations. .(30) The third case, Anderson v. Liberty Lobby Liberty Lobby was a political advocacy organization which existed in the United States between 1955 and 2001. It was founded by Willis Carto.
Liberty Lobby was the subject of much criticism from all quarters of the political spectrum. , Inc., presented a new test.(31) The Court held that the relevant inquiry was whether the evidence presented a sufficient disagreement to require submission to a jury or whether it was so one-sided that one party must prevail as a matter of law. The somewhat ambiguous language of the Liberty Lobby decision may explain why it has not been widely followed by the lower courts.
Although the Supreme Court in Liberty Lobby warned courts against weighing the evidence, it has become common for the federal courts to do just that. The analytical quagmire Justice William Brennan predicted in his dissent in that opinion has been realized.
Trial courts today, however, have gone even further in making factual determinations by a preponderance of the evidence preponderance of the evidence n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. and issuing what amounts to findings of fact findings of fact n. (See: finding) .
Brennan's dissent raised the question raised here: How are evidentiary standards to be considered, or what is a trial judge supposed to do in ruling on a motion for summary judgment?
The lower federal courts cite to the restriction on the use of Rule 56 to view evidence in a light most favorable to the opposing party, but, in practice, trial courts continue deciding cases by a preponderance of the evidence. The only way to end this practice is to sharply delineate how these courts should consider evidence.
The decision to allow a case to go to a jury is guided by the substantive evidence standards that apply. It is one thing for a court to determine if a party can meet its evidentiary burden. It is a completely different and unconstitutional matter for a court to decide for itself which side has presented the most plausible story. The court should decide only whether the party opposing the motion has presented a plausible story. These are different tests.
Before 1986, lower federal courts took a more restrictive view of summary judgment. It was not to be used as a substitute for trial.(32) It was not the role of the district court to weigh the evidence.(33)
There is a misconception that summary judgment provides an efficient means to reduce court backlog and expedite the disposition of cases. This is the economics argument that appears in Justice White's opinions in the three 1986 rulings.
The reality is that summary judgment may consume far more of a trial judge's time than a jury trial. Many civil cases can be tried in a day or two. Given the size of the record created by liberal discovery rules, it may take the trial judge more than two days to review the evidence on a motion for summary judgment and write an opinion.
A voluminous record with issues of law requiring 100 hours of a judge's time in a case that can be tried in one or two days is more efficiently submitted to a jury and conserves the judge's resources. Many experienced trial lawyers would agree that trial by jury is far more expeditious ex·pe·di·tious
Acting or done with speed and efficiency. See Synonyms at fast1.
ex in resolving cases than summary judgment. In any event, preservation of a constitutional right should not depend on judicial efficiency.
It is time for the bar to raise this issue rather than acquiesce to summary judgment. Seventh Amendment questions must be raised in the opposition brief to the motion for summary judgment if this important constitutional issue is to be preserved for appeal. The trial judge must be given an opportunity to address the issue.
(1) "In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried to jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law." (2) Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Celotex Corp v. Catrett, 477 U.S. 317 (1986). (3) U.S. CONST CONST Construction
CONST Under Construction
CONST Commission for Constitutional Affairs and European Governance (COR) . amend. VII. For a detailed discussion of the amendment, see generally Edith Guild Henderson, The Background of the Seventh Amendment, 80 HARV HARV High Alpha Research Vehicle (NASA test plane)
HARV High Altitude Research Vehicle
HARV High Altitude Reconnaissance Vehicle . L. REV. 289 (1966); Charles W Wolfram wolfram: see tungsten. , The Constitutional History of the Seventh Amendment, 57 MINN MINN Minnesota (old style) . L. REV. 639 (1973). (4) 28 F. Cas. 745 (No. 16, 750) (C.C.D. Mass. 1812). See also Parsons Parsons, city (1990 pop. 11,924), Labette co., SE Kans.; inc. 1871. It is a shipping point for dairy products, grain, and livestock. Manufactures include ammunition, wire and paper products, plastics, and appliances. v. Bedford, 28 U.S. (3 Pet.) 433 (1830). (5) See, eg., Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989). (6) 3 WILLIAM BLACKSTONE Sir William Blackstone (originally pronounced Blexstun) (10 July 1723 – 14 February 1780) was an English jurist and professor who produced the historical and analytic treatise on the common law called Commentaries on the Laws of England , COMMENTARIES *393. (7) Id. at 314. (8) 253 U.S. 300 (1920). (9) Id. at 309. (10) 187 U.S. 315 (1902). (11) 253 U.S. 300, 310-11. (12) 293 U.S. 474 (1935). (13) Id. at 491 (Stone, J., dissenting). (14) 295 U.S. 654 (1935). (15) Three years later, the Federal Rules of Civil Procedure, which include Rule 56 on summary judgment, were adopted. (16) 319 U.S. 372 (1943). (17) Id. at 392. (18) Id. at 399 (Black, J., dissenting). (19) 430 U.S. 442 (1977). (20) Id. at 455, 460. (21) 439 U.S. 322 (1979). (22) 492 U.S. 33. (23) Id. at 53. (24) 494 U.S. 545 (1990). The Court held that where both equitable and legal remedies were sought, a party was entitled to a jury trial on the legal issues. See also Defender Indus., Inc. v. North Western Mut. Life Ins., 938 F.2d 502 (4th Cir. 1991). (25) Granfinanciera, 492 U.S. 33, 53. (26) See, e.g., Dolgow v. Anderson, 438 F.2d 825 (2d Cir. 1970); Doehler Metal Furniture Co. v. United States, 149 F.2d 130 (2d Cir. 1945). (27) 28 U.S.C. [sections] 2072 (1948). (28) Fed. R. Civ. P. 56. (29) 477 U.S. 317. See also Fidelity, 187 U.S. 315. (30) 475 U.S. 574. But see Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451 (1992) holding that antitrust violations may raise certain genuine issues of material fact to preclude summary judgment). (31) 477 U.S. 242. (32) Redhouse v. Quality Ford Sales, Inc., 511 F.2d 230, 234 (10th Cir. 1975) (quoting Smoot v. Chicago, Rock Island & Pacific R.R. Co., 378 F.2d 879 (10th Cir. 1967)). (33) See e.g., Tankersley, v. Albright, 514 F.2d 956, 963 7th Cir. 1975