Thomas, An Unfamiliar Limitation on Congress: In Suits at Common Law

Suja A. Thomas, University of Illinois College of Law, draws upon history to make a Seventh Amendment argument in An Unfamiliar Limitation on Congress: In Suits at Common Law, forthcoming in the Ohio State Law Journal. Here's the abstract:

The Supreme Court has interpreted many parts of the Constitution to limit the power of Congress including, for example, Articles I, II and III and the First Amendment. This Symposium Article argues that another part of the Constitution, the Seventh Amendment, has not been viewed similarly by the Court, and that this view is incorrect. The Article first assumes that the Court has properly adopted the English common law in 1791 as the law governing the Seventh Amendment. Using this law, in decisions on whether a jury trial right exists for a cause of action created by Congress, the Court has analyzed both whether the cause of action is sufficiently analogous to an English common law cause of action and whether the relief sought is of the type decided by juries in English common law courts. This two-prong examination has occurred despite the fact that whether a jury heard a claim in England in 1791 was based, with very few exceptions, only on the second prong - the relief sought, with damages being heard by juries. Also, the Court has been deferential to Congressional decisions to place certain damages decisions in non-Article III forums, without a jury trial right, including in administrative agencies and bankruptcy courts. This Article argues that, at least in part because of this deferential way in which the Court has viewed Congress, the Seventh Amendment civil jury trial right has been improperly curtailed. The inquiry as to whether a jury trial right exists under the Seventh Amendment should be based only on the relief sought and a jury trial right exists for Congressionally-created causes of action with damages remedies, including ones that Congress has relegated to administrative agencies and bankruptcy courts.