Thomas Responds to Tidmarsh on English Fire Courts and Article III

Suja A. Thomas, University of Illinois College of Law, has posted The Limits of History: The English Fire Courts, Congress, the Seventh Amendment Civil Jury Trial, which appeared in the University of Chicago Law Review Online 83 (2018): 281-95.  It is a response to Jay Tidmarsh, The English Fire Courts and the American Right to Civil Jury Trial, 83 U Chi L Rev 1893 (2016).

Can Congress create Article III courts to decide civil cases where plaintiffs claim damages that are related to certain crises, such as the mortgage crisis--thus, shifting those cases from juries to judges to decide? Jay Tidmarsh said yes in an article published in the University of Chicago Law Review. He did not properly consider, however, the limits of history's influence on the Seventh Amendment. This article describes those limits and the actual conditions for the right to a jury trial in the late eighteenth century--the relevant time period for determining the scope of the jury trial. It further shows that Congress does not have the significant authority to usurp the jury for which Tidmarsh has argued.