Identifying Civil Cases Requiring a Jury Trial
The Seventh Amendment grants a right to a jury trial in “Suits at common law,” which the
Supreme Court has long interpreted as “limited to rights and remedies peculiarly legal in their
nature, and such as it was proper to assert in courts of law and by the appropriate modes and
proceedings of courts of law.” 1 The drafters of the Seventh Amendment used the term “common
law” to clarify that the Amendment does not provide a right to a jury in civil suits involving the
types of equitable rights and remedies that courts enforced at the time of the Amendment’s
framing.2
Two unanimous decisions, in which the Supreme Court held that civil juries were required,
illustrate the Court’s treatment of this distinction. In the first suit, a landlord sought to recover,
based on District of Columbia statutes, possession of real property from a tenant allegedly
behind on rent. The Court reasoned that whether “a close equivalent to [the statute in question]
existed in England in 1791 [was] irrelevant for Seventh Amendment purposes.” 3 Instead, the
Court stated that its Seventh Amendment precedents “require[d] trial by jury in actions unheard
of at common law, provided that the action involves rights and remedies of the sort traditionally
enforced in an action at law, rather than in an action at equity or admiralty.” 4 The statutory
cause of action, the Court found, had several analogs in the common law, all of which involved a
right to trial by jury.5
In a second case, the plaintiff sought damages for alleged racial discrimination in the rental of
housing in violation of federal law, arguing that the Seventh Amendment was inapplicable to
new causes of action Congress created. The Court disagreed: “The Seventh Amendment does
apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute
creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of
law.” 6
In contrast, the Court has upheld the lack of a jury provision in certain actions on the ground that
the suit in question was not a suit at common law within the meaning of the Amendment, or that
the issues raised were not particularly legal in nature.7 When there is no direct historical
antecedent dating to the Amendment’s adoption, the court may also consider whether existing
precedent and the sound administration of justice favor resolution by judges or juries.8
The Seventh Amendment does not apply to cases in admiralty and maritime jurisdiction in which
the court conducts a trial without a jury.9 Nor does it reach statutory proceedings unknown to the
common law, such as an application to a court of equity to enforce an administrative body’s
order.10 For example, Congress, under the Occupational Safety and Health Act, authorized an
administrative agency to make findings of a workplace safety violation and to assess civil
penalties related to such a violation. Under the statute, an employer that has been assessed a
penalty may obtain judicial review of the administrative proceeding in a federal court of
appeal.11 The Supreme Court, in Atlas Roofing Co. v. Occupational Safety & Health Review
Commission, unanimously rejected the argument that the law violated the Seventh Amendment
because it authorized penalties to be collected from an employer without a jury trial:
At least in cases in which “public rights” are being litigated-e.g., cases in which the government
sues in its sovereign capacity to enforce public rights created by statutes within the power of
Congress to enact-the Seventh Amendment does not prohibit Congress from assigning the
factfinding function and initial adjudication to an administrative forum with which the jury
would be incompatible.12
On the other hand, if Congress assigns such cases to Article III courts, a jury may be required. In
Tull v. United States,13 the Court ruled that the Seventh Amendment requires a jury to
determine whether an entity is liable for civil penalties under the Clean Water Act, which
authorizes the Administrator of the Environmental Protection Agency to initiate a civil action in
a federal district court to enforce the Act. In the Court’s view, the penal nature of the Clean
Water Act’s civil penalty remedy distinguishes it from restitution-based remedies available in
equity courts.14 Consequently, it is a type of remedy that only courts of law could impose.15
However, a jury trial is not required to assess the amount of the penalty. Because the Court
viewed assessment of the amount of penalty as involving neither the “substance” nor a
“fundamental element” of a common-law right to trial by jury, it held permissible the Act’s
assignment of that task to the trial judge.
Later, the Court relied on a broadened concept of “public rights” to define the limits of
congressional power to assign causes of action to tribunals in which jury trials are unavailable.
As a general matter, “public rights” involve “'the relationship between the government and
persons subject to its authority,’” whereas “private rights” relate to “'the liability of one
individual to another.’” 16 In Granfinanciera, S.A. v. Nordberg,17 the Court held that Congress
“lacks the power to strip parties contesting matters of private right of their constitutional right to
a trial by jury.” The Seventh Amendment test, the Court indicated, is the same as the Article III
test for whether Congress may assign adjudication of a claim to a non-Article III tribunal.18
Although finding room for “some debate,” the Court determined that a bankruptcy trustee’s right
to recover for a fraudulent conveyance “is more accurately characterized as a private rather than
a public right,” at least when the defendant had not submitted a claim against the bankruptcy
estate.19
Footnotes
1
Shields v. Thomas, 59 U.S. (18 How.) 253, 262 (1856).
2
Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447 (1830); Barton v. Barbour, 104 U.S. 126,
133 (1881). Formerly, the Amendment did not apply to cases where recovery of money
damages was incidental to equitable relief even though damages might have been
recovered in an action at law. Clark v. Wooster, 119 U.S. 322, 325 (1886); Pease v.
Rathbun-Jones Eng’g Co., 243 U.S. 273, 279 (1917). But see Dairy Queen v. Wood, 369
U.S. 469 (1962) (legal claims must be tried before equitable ones).
3
Pernell v. Southall Realty Co., 416 U.S. 363, 375 (1974).
4
Id.
5
Id. at 375–76.
6
Curtis v. Loether, 415 U.S. 189, 194–95 (1974) (reasoning that “[a] damage action under
the statute sounds basically in tort-the statute merely defines a new legal duty and
authorizes the court to compensate a plaintiff for the injury caused by the defendants’
wrongful breach” such that “this cause of action is analogous to a number of tort actions
recognized at common law.” See also Chauffeurs, Teamsters & Helpers Loc. 391 v.
Terry, 494 U.S. 558 (1990) (suit against union for back pay for breach of duty of fair
representation is a suit for compensatory damages, hence plaintiff is entitled to a jury
trial); Wooddell v. Int’l Bhd. of Elec. Workers Loc. 71, 502 U.S. 93 (1991) (similar suit
against union for money damages entitles union member to jury trial; a claim for
injunctive relief was incidental to the damages claim); Feltner v. Columbia Pictures
Television, 523 U.S. 340 (1998) (jury trial required for copyright action with close analog
at common law, even though the relief sought is not actual damages but statutory
damages based on what is “just” ).
7
Such actions or issues include, for example: (1) enforcement of claims against the United
States, McElrath v. United States, 102 U.S. 426, 440 (1880); see also Galloway v. United
States, 319 U.S. 372, 388 (1943); (2) suit under a territorial statute authorizing a special
nonjury tribunal to hear claims against a municipality having no legal obligation, but
based on moral obligation only, Guthrie Nat’l Bank v. Guthrie, 173 U.S. 528, 534 (1899);
see also United States v. Realty Co., 163 U.S. 427, 439 (1896); New Orleans v. Clark, 95
U.S. 644, 653 (1877); (3) cancellation of a naturalization certificate for fraud, Luria v.
United States, 231 U.S. 9, 27 (1913); (4) reversal of an order to deport an alien, Gee Wah
Lee v. United States, 25 F.2d 107 (5th Cir. 1928), cert. denied, 277 U.S. 608 (1928); (5)
damages for patent infringement, Filer & Stowell Co. v. Diamond Iron Works, 270 F.
489 (2d Cir. 1921), cert. denied, 256 U.S. 691 (1921); (6) reversal of an award under the
Longshoremen’s and Harbor Workers’ Compensation Act, Crowell v. Benson, 285 U.S.
22, 45 (1932); (7) reversal of a decision of customs appraisers on the value of imports,
Auffmordt v. Hedden, 137 U.S. 310, 329 (1890); (8) a summary disposition by referee in
bankruptcy of issues regarding voidable preferences as asserted and proved by the
trustee, Katchen v. Landy, 382 U.S. 323 (1966); (9) a determination by a judge in
calculating just compensation in a federal eminent domain proceeding of the issue as to
whether the condemned lands were originally within the scope of the government’s
project or were adjacent lands later added to the plan, United States v. Reynolds, 397
U.S. 14 (1970); and (10) fair use determinations in copyright cases, Google v. Oracle,
No. 18-956, slip op. at 20–21 (U.S. Apr. 2021). 8
See Markman v. Westview Instruments, Inc., 517 U.S. 370, 389–90 (1996) (holding that
patent construction is exclusively within the court’s province, taking into account, among
other considerations, whether “as a matter of the sound administration of justice, one
judicial actor is better positioned than another to decide the issue in question” ).
9
Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830); Waring v. Clarke, 46 U.S. (5 How.) 441,
460 (1847); Romero v. Int’l Terminal Operating Co., 358 U.S. 354 (1959). But see
Fitzgerald v. U.S. Lines Co., 374 U.S. 16 (1963).
10
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937). See also ICC v. Brimson,
154 U.S. 447, 488 (1894); Yakus v. United States, 321 U.S. 414, 447 (1944).
11
See Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 445–46 (1977). 2
Id. at 450.
13
481 U.S. 412 (1987).
14
Id. at 422–25.
15
The statute specified only a maximum amount for the penalty; the Court derived its
“punitive” characterization from indications in the legislative history that Congress
desired consideration of the need for retribution and deterrence in addition to the need for
restitution. Id. at 422–23.
16
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51 n.8 (1989) (quoting Crowell v.
Benson, 285 U.S. 22, 50, 51 (1932)). Granfinanciera qualified certain statements in Atlas
Roofing and in the process refined its definition of “public rights.” There are some
“public rights” cases, the Court explained, in which “the Federal Government is not a
party in its sovereign capacity,” but which involve “statutory rights that are integral parts
of a public regulatory scheme.” Id. at 55 n.10. The Court further noted that, in cases of
this nature, Congress may “dispense with juries as factfinders through its choice of an
adjudicative forum.” Id. However, Congress may not assign “initial factfinding in all
cases involving controversies entirely between private parties to administrative tribunals
or other tribunals not involving juries” even “if they are established as adjuncts to Article
III courts.” Id. (emphasis added).
17
Id. at 33, 51–52.
18
The Granfinanciera Court stated: “[I]f a statutory cause of action . . . is not a ‘public
right’ for Article III purposes, then Congress may not assign its adjudication to a
specialized non-Article III court lacking ‘the essential attributes of the judicial power.’ If
the action must be tried under the auspices of an Article III court, then the Seventh
Amendment affords the parties the right to a jury trial whenever the cause of action is
legal in nature. Conversely, if Congress may assign the adjudication of a statutory cause
of action to a non-Article III tribunal, then the Seventh Amendment poses no independent
bar to the adjudication of that action by a nonjury factfinder.” Id. at 53–54 (citation
omitted). See also Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S.
Ct. 1365, 1379 (2018) ( “This Court’s precedents establish that, when Congress properly
assigns a matter to adjudication in a non-Article III tribunal, ‘the Seventh Amendment
poses no independent bar to the adjudication of that action by a nonjury factfinder.’”
(quoting Granfinanciera, 492 U.S. at 53–54)).
19
Granfinanciera, 492 U.S. at 55. The Court later held, however, that a creditor who
submits a claim against the bankruptcy estate subjects himself to the bankruptcy court’s
equitable power, and is not entitled to a jury trial when subsequently sued by the
bankruptcy trustee to recover preferential monetary transfers. Langenkamp v. Culp, 498
U.S. 42 (1990).
