The Second Amendment vs. the Seventh Amendment: The Terminal Decay of the Seventh Amendment and the Revival of the Second Amendment
This is the fifth and final post of a series based on my comparison of the Second and Seventh Amendment in the Northwestern Law Review. The last post discussed the problems with procedural rights and showed how that analysis helps to explain the U.S. Supreme Court’s struggles over incorporation. This post illuminates the differences between procedural and substantive rights by comparing the fate of the right to civil jury trial and the right to keep and bear arms.
The vanishing civil jury
As I discussed in the last post, a particular legal procedure is necessarily one part of an entire legal system. The scope and function of any particular procedure can change dramatically depending on changes in the surrounding legal system. We have seen that with respect to criminal jury trial. The same is true of civil jury trial.
Changes in the civil justice system since the late eighteenth century have been deep and many. Elaborate pretrial discovery, rising cost of litigation, permissive joinder of claims and parties, consolidation of cases into class actions and multi-district litigation, lengthy jury selection, ever more complicated claims, an explosion of scientific and statistical evidence, summary judgment procedure—all these and more have taken a toll on civil jury trial. The cost and unpredictability of civil jury trials drive parties to settlement. Currently, fewer than 1% of civil cases reaching disposition in federal court are decided by jury trial.
And yet, the Seventh Amendment states, “In Suits at common law … the right of trial by jury shall be preserved.” It turns out that truly preserving a right to civil jury trial would require eliminating many features of modern litigation. (See Renée Lettow Lerner, The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial, 22 William & Mary Bill of Rights Journal 811, 879 (2014).)
Despite the scarcity of civil jury trials today, constitutional rights to jury trial still have a large effect on the legal system. This is for two main reasons. First, settlement negotiations take place “in the shadow” of the jury. (See Renée Lettow Lerner, The Surprising Views of Montesquieu and Tocqueville about Juries: Juries Empower Judges, 81 Louisiana Law Review 1, 53 (2020).) That is, the result of negotiations depends partly on what the parties guess that a jury will do.
Second, the constitutional right to a civil jury blocks the development of more efficient and accurate methods of adjudication. Because of federal and state constitutional rights
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