Friends,
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.
http://www.washingtonpost.com/wp-dyn/articles/A23872-2005Apr3.html
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.
best,
Charles Iragui
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2 comments:
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.
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.
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