Vol. 16 No. 10 (October, 2006) pp.788-791


TRIAL BY JURY:  THE SEVENTH AMENDMENT AND ANGLO-AMERICAN SPECIAL JURIES, by James Oldham.  New York: New York University Press, 2006. 368pp. Hardbound. $55.00. ISBN: 0814762042.


Reviewed by Paul Lermack, Bradley University.  Email: pnl [at] bumail.bradley.edu.


James Oldham, a legal historian at Georgetown University Law Center, here brings together his work on the history of civil juries.  Most of the material has been previously published over a period of more than twenty years. 


The discussion falls into two loosely related halves.  In the first, Oldham tackles several problem areas in modern Seventh Amendment law to which the reconstruction of eighteenth-century civil procedure is relevant.  In the second, to which the subtitle refers, he traces the use of civil juries with specially-qualified members.  Oldham has previously written extensively on eighteenth-century legal history and on the contributions of Lord Mansfield, and he has edited Mansfield’s trial notes.  He is familiar with the documentary record and skilled in the method of interpolation that historians use when they try to reconstruct some archaic legal procedure from the few extant recorded cases in which it was used.   He is thus ideally prepared to write about the right to a civil jury trial. 


Unlike the other procedural rights listed in the Bill of Rights, the Seventh Amendment right to a civil jury is explicitly pinned to “suits at common law.”  Though historians (including Oldham) have objected, the Supreme Court has held that “[i]n order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791”  (DIMICK v. SCHIEDT, 476).  A litigant is entitled to a civil jury if an analogous 1791 case would have been tried by jury.  The kind of jury provided, and the functions it will perform, are similarly linked to the eighteenth century.  This “historical test” has turned the question of the proper scope of the right to a civil jury into a test of the originalist method of constitutional interpretation. 


The results have been predictably disastrous.  The world has changed since 1791.  Court organization, civil pleadings and civil procedure in general are all markedly different, as are the kinds of cases brought and the expectations of the litigants.  But whenever the scope of the Seventh Amendment right is in question, lawyers imitate their fictional colleagues in GULLIVER’S TRAVELS; they hire historians to mine the incomplete and decontextualized eighteenth-century records that have survived.  Because the past is slippery and resists being pinned down, historians disagree.  But the documentation they provide allows each lawyer to argue that some preferred course of action is congruent with some reconstruction of eighteenth-century practice, and that the opponent’s preferred option is not. [*789]


For example, judges economize the availability of court time and resources by using summary judgment rulings to dismiss many civil cases without trials.  Summary judgments raise Seventh Amendment concerns because they substitute the judge’s determination of at least some facts for that of a jury.  Since summary judgments did not exist in the eighteenth century, they would seem to violate the Seventh Amendment right to have juries determine facts as they did anciently at common law.  If that is the case, courts would have to try many more cases than they now do, at consequently greater expense.  But the Supreme Court has allowed summary judgments to be used.  The Court reasoned that in 1791 not all civil cases were tried by juries and that, even though summary judgments did not exist, analogous procedural mechanisms accomplished the same results.  But historians disagree over whether the analogous mechanisms existed, were actually used, or were truly analogous.  (Thomas 2004; 2007)  The ability of modern courts to develop a procedure that allows them to use their resources efficiently thus hinges on questionable and questionedreconstructions of archaic practices.  The legitimacy of courts, which hinges on the public perception that courts do justice by safeguarding rights, is similarly imperiled.


In the first part of TRIAL BY JURY, Oldham discusses a number of such controversies.  In the first chapter, he critiques the 1996 MARKMAN decision, in which the Supreme Court allowed judges to resolve certain important definitional disputes in patent infringement cases because in analogous eighteenth century cases judges, not juries, dealt with such matters.  The relevant details of eighteenth-century trial procedure are largely known from Lord Mansfield’s trial notes.  Oldham uses his familiarity with the material to argue that the Court got the MARKMAN ruling wrong as a matter of history.  But in the eighteenth century the law of patents existed only in rudimentary form.   It has since become bewilderingly complex.  We can no longer assume that jurors can comprehend it.  Thus, Oldham concludes, the historical test is attractive because it allows courts to create constructive changeby taking an impossible task away from the jurywhile maintaining “the stability and reassurance that come from appearing to stay in touch with the historical past” (p.15).


The conclusion illustrates the utility of this historical research.  Whatever historians discover inevitably “informs” modern policy debates.  As judges struggle to adapt old procedures to the requirements of modern complex litigation, the historical test requires them to deal with such details.  Some have argued that the law is often so complex that there ought to be a “complexity exception” under which cases otherwise appropriate for jury trial would be dealt with by judges alone if the factual matter, or the law, seems too complex for ordinary people to understand.  The Seventh Amendment would seem to be a barrier to the creation of a complexity exception.  But in the second chapter, Oldham argues that eighteenth-century courts followed a [*790] variety of practices which had the effect of putting complex decisions in the hands of specialists.  These practices included juries composed of specially qualified jurors.  All are now obsolete.  But they serve as eighteenth century precedents for the principle that complex decisions should be left to specialists.  A contemporary complexity exception, he concludes, could be based on this eighteenth-century limitation of the province of the lay jury.


Oldham brings similar historical research to bear on a number of more general questions: when, if ever, can juries determine the law as well as the facts? What can be done if the jury refuses to follow the law?  For that matter, just what is a “fact?”  Lawyers generally assume that the determination of damages, at least economic damages, is within the province of the jury.  A curious obsolete procedure, the writ of inquiry, seems to have allowed at least nineteenth century judges to make such determinations, treating the findings of specially-empaneled sheriff’s juries as advisory.  But Oldham argues persuasively that this was never done without the consent of the parties, and did not, in practice, constitute an exception to the general rule that juries determine damages.


This piecemeal research is interesting to the extent that the reader is interested in reconstructing the past, but it has important policy implications only because of the historical test.  As Oldham deals with one question after another, he reveals the existence of one scholarly controversy after another.  The chapters have an additive effect.  The past is shown to be a muddy pasture in which litigation, and legal certainty, inevitably bog down.  Its reconstruction adds a dimension of cost and tedium to modern legal cases that are all too often fantastically complex to begin with. Oldham’s conclusion sneaks up: the Supreme Court’s historical test is “anachronistic” (p.79). At best, it requires lawyers to explain away or redefine antique procedures.  At worst, it requires them to use thema practice as costly as requiring surgeons to do modern procedures with the tools of their barber ancestors.


Oldham does not belabor the conclusion but rather moves on, in the second half of the book, to a more colorful chapter of legal history:  the rise and fall of a variety of special juries.  Some of these were juries composed of individuals specially chosen for their knowledge or experience.  For example, “juries of matrons” were used to determine with certainty whether a woman was pregnant.  Women served, on the assumption that, after dealing with the pain and vomit of pregnancy, they were well suited to recognizing the symptoms in others.  Juries of matrons were available in a variety of circumstances, most notably when a woman convict sought to delay or evade the death penalty to save the life of her fetus. (Pregnancy could also affect such matters as inheritance.)  Other special juries were made up of high-status individuals.  Still others were composed of men with special knowledge of the business world, or simply of highly educated individuals.   Some empanelled jurors with personal knowledge of the case at hand, and expected them to use [*791] that knowledge in addition to the evidence presented.  Some very early juries were expected to investigate on their own. 


Special juries flourished in England in the late common-law period.  They gradually fell into disuse, and were all gone by 1949.  The institution was transplanted to the United States, where some special jurors had expertise in “drainage district assessment disputes” (p.202), were foreigners, or spoke foreign languages.  Some special juries may still be available.  We do not know whether the historical test preserves whatever level of special juries were available in 1791, but it is clear that, as Oldham observes, “selecting juries from exclusive classes of people is not in keeping with the pervasively egalitarian spirit of late-twentieth and twenty-first-century America” (p.2; cf. pp.210-211). The composition requirement for criminal juries is that the members be chosen in a way that maximizes the likelihood that they will represent a cross-section of the community.  (WILLIAMS v. FLORIDA)  Indeed, we define a “peer” as a fellow-citizen who is eligible to serve, without restriction, on such a jury, and we are as unlikely to accept any criminal jurors chosen for knowledge, status or experience as we are jurors chosen for their wealth, race or gender.


It is likely that contemporary notions of justice would similarly prevent at least widespread use of special juries in civil cases.  They remain an interesting historical topicone of those remnants, like titles of nobility or neckties, from a time when values were fundamentally different.  They remind us that in that far-off past, like in a foreign country, people did things differently.  Oldham’s very significant accomplishment is to remind us that in the law, as anywhere we are trying to cope with the demands of modernity, we should not be spending too much time visiting that foreign country.



Thomas, Suja A. 2007. “Why Summary Judgments Are Unconstitutional,” 93 VIRGINIA LAW REVIEW forthcoming (SSRN# 467342).


Thomas, Suja A. 2004. “The Seventh Amendment, Modern Procedure and the English Common Law,” 82 WASHINGTON UNIVERSITY LAW QUARTERLY 687-754 (SSRN# 525442).



DIMICK v. SCHIEDT, 293 U.S. 474 (1935).




WILLIAMS v. FLORIDA, 399 U. S. 78 (1970).


© Copyright 2006 by the author, Paul Lermack