The 7th Amendment guarantee of juries in civil trials is a contested institution, one that has largely disappeared in the rest of the Common Law world. This bulwark of democratic check on state power, this imposition of common sense upon the language of our courtrooms, this protection against the prejudice and conceit of judges, has, according to the following article, been largely banished from the federal courts.
Is clear-and-convincing the standard that should prevail in our courts? Should we, in the name of efficiency, a consideration paramount to CJ Rehnquist, allow a movant to in fact oblige the non-movant to prove that its case can be won before going to trial? 35 states have already adopted this “Celotex” standard.
If we get more textualists on the court, could this subject be reviewed? Look at the Celotex majority: REHNQUIST, J., delivered the opinion of the Court, in which WHITE, MARSHALL, POWELL, and O'CONNOR, JJ. joined. All of these justices were in the “efficiency” camp. Stevens dissented. Scalia, Thomas and Stevens, a new guy and… Ginsburg? Clearly, Kennedy, O’Connor, Souter and Breyer are all for efficiency over unbending principles embodied in institutional guarantees.