The Seventh Amendment and the futility of historical analogues

Because the text of the Seventh Amendment requires the Court to “preserve” the jury right, courts engage in a historical analysis. Note that the Seventh Amendment was ratified in 1791, long before many modern causes of action were created. What does that mean for new causes of action?

In Teamsters v. Terry, union members sued their labor union. The suit asserted a breach of duty of fair representation, a cause of action “inferred from unions’ exclusive authority under the National Labor Relations Act (NLRA).” 494 U.S. 558 (1990). This cause of action did not exist in the 18th century at the time of the Seventh Amendment’s ratification in 1791. But this did not prevent a jury trial. Indeed, the Court has consistently held that modern causes of action can qualify for the right to jury trial.

So what is the test? To determine when jury right exists for new causes of action, the Court laid down a two-step analysis:

To determine whether a particular action will resolve legal rights, we examine both the nature of the issues involved and the remedy sought. “First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature.” The second inquiry is the more important in our analysis.

Let’s examine the two-step analysis.

First, look to historical analogues, i.e., causes of action that existed at the time of ratification. For instance, federal discrimination laws did not exist in the 18th century. But they could be analogized to suits in tort (such as trespass), which were routinely asserted in courts of law. Thus, ask yourself: is the best analogue one that would be asserted in a court of law (like trespass)? Or is it one that would be heard in a court of equity (like specific performance)?

Second, look to the remedy sought. Legal? Equitable? Note that this second step is the more important part of the analysis. Usually, a claim for normal monetary relief will be considered legal, and a demand for injunctive or similar relief will be considered equitable. (If only it were that simple! Don’t forget about cases like Dairy Queen, where an accounting was held to be monetary, and Curtis, where the Court indicated that monetary damages might sometimes be considered equitable!)

Is this a helpful test? If the more important part of the test is step two, then why bother with the first step’s historical analogue analysis? In a partial concurrence in Terry, Justice Brennan argued that the Court should abandon the first step, the search for the best historical analogue:

I believe that our insistence that the jury trial right hinges in part on a comparison of the substantive right at issue to forms of action used in English courts 200 years ago needlessly convolutes our Seventh Amendment jurisprudence. For the past decade and a half, this Court has explained that the two parts of the historical test are not equal in weight, that the nature of the remedy is more important than the nature of the right. Since the existence of a right to jury trial therefore turns on the nature of the remedy, absent congressional delegation to a specialized decisionmaker, there remains little purpose to our rattling through dusty attics of ancient writs. The time has come to borrow William of Occam’s razor and sever this portion of our analysis.

We have long acknowledged that, of the factors relevant to the jury trial right, comparison of the claim to ancient forms of action, “requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply.” Requiring judges, with neither the training nor time necessary for reputable historical scholarship, to root through the tangle of primary and secondary sources to determine which of a hundred or so writs is analogous to the right at issue has embroiled courts in recondite controversies better left to legal historians.

What do you think? Consider the Terry test and Brennan’s argument. To help in your thinking, below is a table derived from the Terry case. Note that the court had enormous difficulty determining exactly what cause of action was the best 18th-century analogue to the plaintiffs’ claim for breach of the duty of fair representation.

Potential analogues to the duty of fair representation
Analogues Vacate arbitration award


Beneficiary suing a trustee for breach of fiduciary duty


Attorney malpractice suit


Marshall (6-3 majority except only 4 for Part III.A historical analysis) Not a good analogue. Yes and no. On the one hand, a good analogue at equity, but on the other hand, claim is premised on a breach of CBA, which is like breach of contract (legal!); thus, historical analysis is at “equipoise.”  Also, second inquiry into relief is “more important” part of analysis. Not a good analogue.
Brennan concurring in part and in JJ Refuses to do historical analogy, says do historical test limited to whether relief is like historical legal or equitable relief.
Stevens concurring in part and in JJ Did not address Not a good analogue. Yes. A good analogue.
Kennedy, with O’Connor & Scalia, dissenting Did not address Yes.  Says “inquiry should end” b/c plaintiff’s COA is like an equitable claim.  Do not parse legal “issues” out of an equitable COA. Not a good analogue.

Posted Apr. 8, 2015