Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

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 SEC v. Jarkesy,7 the Supreme Court provided additional guidance on how to determine whether an action constitutes a Suit[] at common law8 for Seventh Amendment purposes. In Jarkesy, the Court held that George Jarkesy, Jr., a defendant in a Securities and Exchange Committee (SEC) fraud action for civil penalties, had a right to a jury trial under the Seventh Amendment. The Court identified two pertinent factors for whether an action was covered by the Seventh Amendment: (1) whether the action was akin to a common law cause of action and (2) whether the remedy was the type that could only be obtained in a court of law.9 Because the civil penalties in Jarkesy were designed “to punish and deter, not to compensate,” they were, according to the Court, the “type of remedy at common law that could only be enforced in courts of law.” 10 Turning to the nature of federal securities fraud actions, the Court reasoned that because securities fraud actions, like common law fraud actions, address “misrepresenting or concealing material facts” 11 and because Congress and the SEC had adopted common law fraud concepts into federal securities fraud law,12 the securities fraud actions were “legal in nature.” 13 As such, the case constituted a “Suit[] at common law” for Seventh Amendment purposes, entitling Jarkesy to a jury trial.

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.14 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.15

The Seventh Amendment does not apply to cases in admiralty and maritime jurisdiction in which the court conducts a trial without a jury.16 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.17 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.18 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:

On the other hand, if Congress assigns such cases to Article III courts, a jury may be required. In Tull v. United States,20 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.21 Consequently, it is a type of remedy that only courts of law could impose.22 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.’” 23 In Granfinanciera, S.A. v. Nordberg,24 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.25 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.26 The Court further distinguished public from private rights in SEC v. Jarkesy27 : if an action is akin to an action at common law—like the SEC securities action at issue in Jarkesy—then the action involves private rights and is subject to Article III jurisdiction.28

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

SEC v. Jarkesy, No. 22-859, slip op. at 27 (U.S. June 27, 2024). The Supreme Court affirmed a Fifth Circuit decision and remanded the case for further proceedings consistent with the Court’s opinion. Id. For additional discussion on SEC v. Jarkesy, see Intro.9.2.2 : Enforcement Actions, Seventh Amendment Jury Trials, Non-Delegation Doctrine, and Removal Authority .

8

U.S. Const. amend. VII ( “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” ).

9

Jarkesy, slip op. at 9.

10

Id. at 11 (quoting Tull v. United States, 481 U.S. 412, 422 (1987)).

11

Id.

12

Id. at 11-12.

13

Id. at 13. (quoting Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 53 (1989)). Discussing the similarities between securities fraud actions and common law fraud, the Court noted that “both target the same basic concept: misrepresenting or concealing material facts.” Id. at 11.

14

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).

15

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” ).

16

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).

17

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).

18

See Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 445–46 (1977).

19

Id. at 450.

20

481 U.S. 412 (1987).

21

Id. at 422–25.

22

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.

23

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).

24

Id. at 33, 51–52.

25

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)).

26

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).

27

SEC v. Jarkesy, No. 22-859, slip op. at 27 (U.S. June 27, 2024). The Supreme Court affirmed a Fifth Circuit decision and remanded the case for further proceedings consistent with the Court’s opinion. Id.

28

Id. at 14. The Court stated: “If a suit is in the nature of an action at common law, then the matter presumptively concerns private rights, and adjudication by an Article III court is mandatory.” Id. By contrast, the Court explained, public rights are at issue in those cases that “‘historically could have been determined exclusively by [the executive and legislative] branches.’” Id. (quoting Stern v. Marshall, 564 U.S. 462, 493 (2011)).