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April 9, 2007

Another Amendment to obsess over?

I am just back from a terrific faculty workshop in which Prof. Suja Thomas discussed her latest project that builds off her intriguing essay (now in printing in the Virginia Law Review) entitled "Why Summary Judgment is Unconstitutional."  Hearing Suja's presentation and her theory of the Seventh Amendment confirmed my instinct that there are important parallels between the scope and application of the criminal jury trial right safeguarded by the Sixth Amendment and the civil jury trial right safeguarded by Seventh Amendment.

Of course, few should care if I see parallels between between the two jury trial rights that appear in these neighboring provisions of the Bill of Rights.  But, since SCOTUS has cases implicating both Sixth and Seventh Amendment jury trial issues pending this term, I am certainly going to be watching closely to see if some Justices start talking up the parallels.

April 9, 2007 at 02:32 PM | Permalink


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The times that the Supreme Court has addressed their parallel nature have come in the context of a discussion of what common law concepts were incorporated into the constitution. Two cases come to mind:


The common-law right to a jury trial, for example, is explicitly embodied in the Sixth and Seventh Amendments. The common-law rule that looked upon jurors as interested parties who could give evidence against a defendant was explicitly rejected by the Sixth Amendment provision that a defendant is entitled to be tried by an “impartial jury.” But the vast majority of common-law rules were neither made part of the Constitution nor explicitly rejected by it.

This line in Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 384-5 (1979) leads some to believe that all jury provisions in the 6th amendment could be imported to the 7th.

On the other hand, in a more commonly known footnote in Atlas Roofing v. OSHA, 430 U.S. 442 n. 15 (1977), the court opined that “if the fines involved in these cases were made criminal fines instead of civil fines, the Seventh Amendment would be inapplicable by its terms. The Sixth Amendment would then govern the employer's right to a jury and under our prior cases no jury trial would be required...It would be odd to hold that Congress could avoid the jury-trial requirement by labeling the civil penalties criminal fines but not by assigning their adjudication to an administrative agency.” This last sentence may be of some use.

Posted by: S.cotus | Apr 9, 2007 3:42:28 PM

I dont think that the jury trial right was absolute either. What about courts sitting in equity? No jury there.

Posted by: federalist | Apr 9, 2007 5:20:16 PM

If summary judgment is found unconstitutional then we need to start lining up for the new federal judgeship appoinments. By my calculations the bench would, at a minimum, need to double. Congress would have to do something like eliminate diversity jurisdiction to keep from needing to triple the judgeships.

Posted by: KAY | Apr 9, 2007 9:00:15 PM

I have to wonder, what are the odds of the Supreme Court declaring that summary judgment is unconstitutional? Of course, I'm sure people said the same thing about the sentencing guidelines. But still, might this argument be just a little *too* out there?

Posted by: Law Clerk | Apr 9, 2007 9:03:50 PM

Let’s take a more pragmatic view. Perhaps Gasparini will be given more force, or certain issues will be beyond the reach of SJ.

Here are my candidates for things that might be first to go:
1) What constitutes reasonable knowledge for purposes of the “discovery rule.”
2) Effect to be given to foreign judgments.
3) “Qualified immunity” (I.e. in 1983 cases, the issue of what reasonable cops know would be tried to a jury, and the jury would be instructed on the law).

Federalist, Nobody is saying that the right to a jury trial is “absolute.” The question is the issues that are relevant to suits grounded in common law that are susceptible to summary judgment.

Posted by: S.cotus | Apr 9, 2007 9:34:11 PM

I am a criminal defense attorney who follows this site regularly. I came across Professor Thomas' article several weeks ago. The article is fascinating. To allow a trial court to deny a right to a jury trial based upon its own assessment of the evidence is absurd. With regards to the argument that the workload for the Court would go up in the absence of summary judgment (thereby requiring more judges, courtrooms, staff, cost, etc) I have 2 responses: First: So what?!? Why should that be a consideration when the right is constitutionally guaranteed. Freedom ain't free. Second: The argument is false on the merits. Courts spends most of their time wading thru endless discovery and other crap for hours and hours trying to decide summary judgment motions. What if that entire step in the litigation process was removed? I think cases would be resolved faster, not slower. How many times has a judge let a SJ motion sit on his desk for a year or more? The case could be tried by then.

A truly originalist reading of the law clearly supports the arguments made in her article. It would be great if the Supreme Court ruled in that manner.

Posted by: Scott Forster | Apr 9, 2007 10:17:37 PM

My view has always been that the 5th amendment’s anti-compelled incrimination clause separates the 6th from the 7th. Assuming that there was no such clause in the 5th amendment, it is possible to imagine criminal trials being decided on summary judgment. Alas, this is not the case. Criminal defendants don’t have to state that they did or didn’t do it. They don’t have to do anything. Civil defendants do. But we all know this.

But… this raises another “sexy” issue. Perhaps summary judgment will be chipped away at via scrutiny of parallel proceedings. If summary judgment is available to the government based on an adverse inference drawn from an invocation of the 5th amendment, then perhaps a the Supreme Court might set out a bright-line test (not a balancing test or a list of factors to be considered in granting stays). The effects would reach beyond white-collar prosecutions, but to license revocations and parole revocations. It might be a beautiful world.

Mr. Foster, In practice, some judges think the way you do: that it is actually easier to hold a trial, especially where law on summary judgment is close. Oftentimes, both sides move for summary judgment, but want evidentiary hearings nevertheless. Obviously this all comes down to strategies regarding the standard of review, but you can see the temptation to “summarily” deny summary judgment and hold a trial.

Likewise, most (but not all) discovery motions are considered a nuisance by courts and smart judges can manage them. They are hardly endless. Finally, a MSJ for summary judgment generally does not stop the trial schedule.

Posted by: S.cotus | Apr 9, 2007 10:40:35 PM

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