Incorporate the Seventh Amendment Civil Jury Trial Right?
For a few years, I have been telling students in Remedies and Civil Procedure to expect a case to arrive at the Supreme Court in which the petitioners try to get the Seventh Amendment civil jury trial right incorporated against the states. And I always add that incorporation of this right would be unwise.
Now a cert petition has been filed asking the Supreme Court to incorporate the Seventh Amendment civil jury trial right. I am going to assume a lot of background (what the civil jury trial right is, how federal courts determine its scope, what incorporation is, how the recent cases have trended toward incorporation). If you want that background, you could start with my article Equity, Law, and the Seventh Amendment.
In this post, I’m going to just briefly catalog the reasons not to incorporate the civil jury trial right—and this will matter to those interested in constitutional law, the law of remedies, or corporate law in the Delaware Court of Chancery. Note that I will assume a Ramos-style unitary conception of an incorporated right—so it is the same whether it operates against the federal government or a state government—and thus that all of the law on the federal civil jury trial right would come over.
Reason 1 is originalist. There are strong originalist grounds for incorporating some of the Bill of Rights (albeit not through the Due Process Clause). But the originalist argument for incorporation is unusually weak for the civil jury trial right. Essentially all states have civil jury trial rights,1 but they are often locked in to different dates. For example, the Indiana civil jury trial right is preserved as of November 1, 1851.2 Incorporation implies that Indiana’s ratification of the Fourteenth Amendment shifted the clock back from 1851 to 1791. That is highly implausible. Adding to the implausibility is the nineteenth-century experimentation with codification—did everyone think, upon the passage of the Fourteenth Amendment, that they were locked into the English division between law and equity in 1791? That would be surprising.
Reason 2 sounds in federalism. I am well above-median in my enthusiasm for the law/equity distinction, and I think it has a lot of functional value in American law (for reasons developed by, among others, Henry Smith, Paul Miller, Mark Gergen, Andrew Kull, as well as scholars and judges outside the United States, including Judge Mark Leeming, Larissa Katz, Irit Samet, and Ben McFarlane). So there are good reasons to distinguish law and equity. But there are also strong arguments on the other side, advanced most forcefully by Doug Laycock, and those arguments have attained the status of conventional wisdom in the United States. But whatever view you may take of the distinction between law and equity, dear reader, the states should be allowed to make their own choices. Incorporating the civil jury trial right would create a permanent division between law and equity that every state would be stuck with in perpetuity.
Reason 3 is that incorporation of the civil jury trial right would be a neutron bomb on the Delaware Court of Chancery. It would likely require jury trials in many cases that now are resolved by that court, with destabilizing effects on its jurisprudence and on the corporate law economy of the United States. Why?
A 1791 target for the civil jury trial right would ignore subsequent developments of corporate law within equity.
The Supreme Court’s mistaken decision in Ross v. Bernhard means that a lot of “internal litigation” for a corporation may be subject to civil juries.
Delaware’s cleanup doctrine would be eliminated, because the federal jurisprudence doesn’t allow it.
Some of the federal jurisprudence (especially the cases relying on Terry) tends to prioritize remedies above everything else in deciding what is on the jury side and what is on the non-jury side. That’s not a good fit for the Delaware Court of Chancery, which has a jurisdiction that is not just about certain remedies but also about certain subjects.
Now whether this shows the folly of incorporating the Seventh Amendment civil jury trial right, or it shows the folly of having a unitary conception of the federal version of the right and the incorporated-against-the-state version of the right—well that’s a different and perhaps more interesting question. But it would be a grave mistake to incorporate against the states the same civil jury trial right that applies against the federal government.
See Eric J. Hamilton, Note, Federalism and the State Civil Jury Rights, 65 Stan. L. Rev. 851 (2013).
See State v. $2,435 in U.S. Currency, 220 N.E.3d 542 (Ind. 2023).