It is difficult to understand the civil jury trial rights under the Seventh Amendment. Non-originalists as well as originalists see the text to require a historical investigation, since the right is preserved in “suits under common law.” How should this inquiry be conducted? My article Equity, Law, & the Seventh AmendmentThe Texas Law Review has published it. You can find it here.
This is the summary:
The Seventh Amendment mandates that civil jury trial rights be “preserved in suits at common law.” These pieces of constitutional text set the justices long on the path to historical reconstruction. The Supreme Court, referring to historical English courts, has set the limits of civil jury trials in federal court for nearly two centuries. However, the present test has not been well received. It requires an inquiry into 1791-related actions. Next, an inquiry into legal and equitable provenance is required. Finally, a weighting that favors one of these incommensurable questions is done. It leads to strange results and is internally inconsistent and anachronistic.
The current approach is criticized in this Article. This Article proposes a test to determine the Seventh Amendment’s civil jury trial rights. The test assumes a civil jury trial, with three exceptions. There are three exceptions to this rule: one is for substantive law areas developed only in equity; another applies for equity remedies and third for equity case-aggregating devices (e.g. class actions). It would require a stylized historical inquiry. It is easier than the present approach and would enable judges to decide the civil jury trial scope with more predictability.