Tuesday, April 05, 2005

Endangered Civil Jury?


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.

Charles Iragui


Misha Tseytlin said...

I do not find the civil jury a "This bulwark of democratic check on state power"- in fact, the jury is supposed to be applying laws that have been adopted by the MAJORITY. Therefor, if the state is actually using its power to apply the law, and a jury overrides that law, then the jury is a randomized 12-person or 6-person check on the majority- a far more arbitrary one than a judge, who has at least gone through some political process. That is not to say the civil jury is not a good thing- i think it generally is. But i think it serves its best function when it acts as a fact-finder, and only in very very rare circumstances, when it goes beyond that.

Charles Iragui said...

"The fleet in being" is the naval concept that says that once you have the top navy, you no longer ever have to use it. The US is the current beneficiary of this seemingly true doctrine. The jury is dissuasive: it is not in reversing the law that it is a bulwark but in simply being. Once it is gone, the temptations for the state to abuse the court system through "phone calls" will inevitable grow. Openness is one of the best cures for corruption and the jury brings the People into the courtroom.

The Pragmatist said...

Three quibbles: First, Celotex had nothing to do with the Seventh Amendment. Second, Iragui's supposed "textualist" interpretation doesn't work. Third, his interpretation doesn't seem to have anything to do with the text of the Seventh Amendment.

Celotex holds one thing: On summary judgment, a defendant doesn't need to provide any evidence to rebut a plaintiff's claim. If what the plaintiff shows and claims to be able to prove--construed most favorably to the plaintiff--can't establish that there are valid claims under law, then the defendant wins. It's a simple idea: If the plaintiff isn't even claiming that the defendant violated the law, there's no reason for the suit to proceed. Summary judgment--which is a mechanism for determining questions of law--existed before Celotex; I do not think that there ever has been any Supreme Court recognition of a Seventh Amendment right to jury trial as to law. In practice it is true that Celotex expanded the use of summary judgment; but whether it did or not does not seem relevant to a "textualist" claim.

I take Iragui to be in agreement with the letter-writer that if there is a "scintilla of evidence" that supports a case the case must proceed to jury. I ask, though: How do we determine what a scintilla of evidence is? If it means anything that might conceivably be relevant to something, then no case would seem to be barred--even cases that we would think clearly frivolous. And if it needs be evidence relevant to a valid legal claim, then it seems to me we are back at summary judgment: Summary judgment succeeds if there is no genuine issue of material fact, i.e., there is not a scintilla of evidence for establishing a claim.

Finally, Iragui hasn't considered the text of the Seventh Amendment. In relevant part, it reads 'In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved'. The jury right shall be preserved, i.e., maintained as it was under the common law of the time. Blackstone himself approves of the use of demurrers--our motions to dismiss--to determine questions of law; I do not see a distinction between such and summary judgment that is dispositive here.

Charles Iragui said...

Good Pragmatist,

First, the practical effect of Summary Judgment, the granting of judgment before trial, based on a record with an absence of facts to be decided, is by definition to deny a jury trial. The question is not whether SJ takes a trial from a jury, but whether it does so improperly.

Second, I gave no textualist interpretation but simply surmised that textualists would not have come to the same view and speculated that more textualists on the court (due to the Bush presidency) would open the possibility that this efficiency- rather than text-driven decision could be overturned (see Scalia-Stevens team-ups on Gitmo, mandatory sentencing).

Third, as I made no interpretation of the 7th Am. other than to support the concept of civil juries, I will return to your discussion of SJ. SJ is NOT a plaintiff/defendant matter. SJ is a movant/non-movant rule. The Celotex Standard refers to the trilogy of decisions simultaneously handed down by the SC in 1986, not simply to Celotex itself. In fact, Celotex stands for the proposition nearly opposite to what you claim: the non-movant must rebut the motion with a showing of a genuine issue of material fact or face immediate judgment. The movant's presentation of the facts will, contrary to your assertion, be construed in the light most favorable to the NON-MOVANT. SJ is NOT "a mechanism for determining the law" but a means to recognize that the movant deserves judgment as a matter of law because no facts are in dispute. Scintilla or no scintilla, SJ should only be given when there is no dispute of material fact (as opposed to immaterial fact, which should be no obstacle to judgment); the whole point of the civil jury is to take fact-finding away from the judge, should either party request it. Finally, the SC has indeed recognized the Constitution (though I grant that at times the Court has done so grudgingly) and, on this point, has always admitted the right to jury trial in civil suits at law. (Or did you mean to say that juries are not asked to determine questions of law? It would be novel to claim that the jury should become a "law-finder" but I disclaim the honor of such creativity, as my response to Misha's comment attests.)

I support the institution of the unanimous, 12-man civil jury. SJ certainly reduces its availability, I believe improperly to the extent the judge determines the validity of disputed claims of material fact.

Pragmatism is not a philosophy but rather a ratification of evils done in the name of convenience. I suggest that you choose another pseudonym or better yet that you cast off fear and reveal your name.


Charles "Iragui"

A Ratifier of Convenient Evils? said...

Mr. Iragui:

You say yourself that

SJ is NOT "a mechanism for determining the law" but a means to recognize that the movant deserves judgment as a matter of law because no facts are in dispute. Scintilla or no scintilla, SJ should only be given when there is no dispute of material fact . . . .

This is precisely why Celotex is perfectly consistent with the Seventh Amendment. Juries find facts, and always have done at common law; this is the jury trial right that the Seventh Amendment protects. When there are no facts to find--because no matter how the disputed facts are found, one party cannot legally win--there is simply no issue for the jury to try.

Justice Stevens was on the Celotex court. He dissented, but on the narrow ground that the district court erred in dismissing evidence that would have supported the plaintiff-movant's case, not that the fundamental premise of the opinion was wrong. There's no reason to believe that a Court full of rabid textualists would decide the case any differently.