William & Mary Bill of Rights Journal


The right to a jury trial in civil cases, as enumerated in the Seventh Amendment to the United States Constitution, is an integral part of the Bill of Rights. Nevertheless, in this Article, Professor Redish and Mr. La Fave argue that the Supreme Court has failed to preserve this right when Congress has relegated claims to a non-Article III forum. Furthermore, they argue, the Court has done so without providing any basis in constitutional theory to justify such a relinquishment.

Professor Redish and Mr. La Fave first examine the Supreme Court's interpretation of the Seventh Amendment in instances where Congress has remained silent on the issue of the availability of a jury trial. They proceed to examine the Court's contrasting response when Congress has explicitly directed that adjudication be held in a non-Article III forum, without a jury. In an effort to explain the Court's approach to Seventh Amendment interpretation, they advance several possible doctrinal models, none of which, in their view, satisfactorily explains the Court's apparent deference to Congress's decision not to allow a jury trial. They suggest that the only rational explanation for the Court's current Seventh Amendment jurisprudence is functionalism: deferring to Congress's determination that some social or political objective outweighs constitutional considerations. They conclude that such deference by the Court, as the guardian of the Constitution, is not only unprincipled, but that such a practice actually endangers the supremacy of the Constitution and undermines the judiciary as the countermajoritarian check on the majoritarian branches of government.