What the jury must hear: The Supreme Court's evolving Seventh Amendment jurisprudence

George Washington Law Review

Volumn 68, Issue 2, 2000, Pages 183-256

  Moses, Margaret L ^a  

^a NONE

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EID: 0034421754     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (526)

1. See JOHN GUINTHER, THE JURY IN AMERICA xiii-xxviii (1988).
2. See the discussion of jury criticisms in STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM 4-17 (1995).
3. 517 U.S. 370 (1996).
4. See id. at 372. In this Article, for the sake of simplicity, I use the terms "judge" and "court" to mean determiner of law, rather than trier of fact, in a non-jury trial. Such usage is helpful because this Article addresses the proper allocation of an issue between judge and jury, and not between judge as trier of fact and judge as determiner of law.
5. See infra Part IV.
6. See infra Part V.
7. 520 U.S. 17 (1997).
8. 523 U.S. 340 (1998).
9. 119 S. Ct. 1624 (1999).
10. The Seventh Amendment provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law." U.S. CONST, amend. VII. In the two states where the civil jury right is not constitutionally based, it is nonetheless provided either by statute or court rule. The Louisiana Code of Civil Procedure provides a right to a civil jury trial, with certain exceptions such as in suits against a state agency or certain suits to enforce an unconditional obligation for a specific sum of money. See LA. CODE CIV. PROC. ANN. arts. 1731, 1732 (West 1990). In Colorado, the right to a civil jury trial is regulated by Rule 38 of the Colorado Rules of Civil Procedure, which is promulgated by the Supreme Court of Colorado pursuant to its state constitutional rulemaking power. See COLO. R. CIV. P. 38; Setchell v. Dellacroce, 454 P.2d 804, 806 (Colo. 1969) (en banc).
11. See U.S. CONST, amend. XIV, § 1; Curtis v. Loether, 415 U.S. 189, 192 n.6 (1973) (stating that "[t]he Court has not held that the right to jury trial in civil cases is an element of due process applicable to state courts through the Fourteenth Amendment"); Simler v. Conner, 372 U.S. 221, 222 (1962) (holding that "the right to a jury trial in the federal courts is to be determined as a matter of federal law in diversity as well as other actions"); Byrd v. Blue Ridge Elec. Coop., Inc., 356 U.S. 525, 537-40 (1958) (holding that federal policy favoring jury decisions of disputed fact questions should not yield to contrary state rule). For the most part, the traditional common law analysis of whether a particular case is entitled to a jury trial is similar under state or federal law. See Bruce D. Greenberg & Gary K. Wolinetz, The Right to a Civil Jury Trial in New Jersey, 47 RUTGERS L. REV. 1461, 1501 n.224 (1995).
12. See U.S. CONST, amend. XIV, § 1; Curtis v. Loether, 415 U.S. 189, 192 n.6 (1973) (stating that "[t]he Court has not held that the right to jury trial in civil cases is an element of due process applicable to state courts through the Fourteenth Amendment"); Simler v. Conner, 372 U.S. 221, 222 (1962) (holding that "the right to a jury trial in the federal courts is to be determined as a matter of federal law in diversity as well as other actions"); Byrd v. Blue Ridge Elec. Coop., Inc., 356 U.S. 525, 537-40 (1958) (holding that federal policy favoring jury decisions of disputed fact questions should not yield to contrary state rule). For the most part, the traditional common law analysis of whether a particular case is entitled to a jury trial is similar under state or federal law. See Bruce D. Greenberg & Gary K. Wolinetz, The Right to a Civil Jury Trial in New Jersey, 47 RUTGERS L. REV. 1461, 1501 n.224 (1995).
13. See Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639, 657 (1973).
14. Wolfram asserts that "the entire issue of the absence of a bill of rights was precipitated at the Philadelphia Convention by an objection that the document under consideration lacked a specific guarantee of jury trial in civil cases." Id. at 657; see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 339-43 (1979) (Rehnquist, J., dissenting) (providing a brief historical background of the Seventh Amendment).
15. See Wolfram, supra note 12, at 672 n.89; see also Colgrove v. Battin, 413 U.S. 149, 152 (1973). The Constitution does provide for the right to a jury trial in a criminal case. See U.S. CONST, art. III, § 2, cl. 3.
16. See Wolfram, supra note 12, at 665; see also GEORGE ANASTAPLO, THE AMENDMENTS TO THE CONSTITUTION, A COMMENTARY 13-14 (1995).
17. See Wolfram, supra note 12, at 665; see also GEORGE ANASTAPLO, THE AMENDMENTS TO THE CONSTITUTION, A COMMENTARY 13-14 (1995).
18. See Wolfram, supra note 12, at 673.
19. Id. at 695-96 (quoting Letters of Centinel, No. II, FREEMAN'S J., Oct. 24, 1787, reprinted in PENNSYLVANIA AND THE FEDERAL CONSTITUTION, 1787-1788, at 584 (John Bach McMaster & Frederick D. Stone eds., Lancaster, Historical Soc'y of Pa. 1888)).
20. Id. at 670-71.
21. Another reason why the Seventh Amendment was drafted in general terms was the significant diversity of practice among the various states. See Edith Guild Henderson, The Background of the Seventh Amendment, 80 HARV. L. REV. 289, 336 (1966).
22. See Wolfram, supra note 12, at 730 ("The skeletal nature of the record [of the Seventh Amendment's adoption] hardly affords reassurance in its interpretation.").
23. U.S. CONST, amend. VII.
24. 28 U.S. (3 Pet.) 433 (1830).
25. Justice Story wrote: The phrase "common law," found in this clause [the Right to Jury Trial Clause], is used in contradistinction to equity, and admiralty, and maritime jurisprudence. . . . When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction [between law and equity] was present to the minds of the framers of the amendment. By common law, they meant what the constitution denominated in the third article "law;" not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered . . . . In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. Id. at 446-47.
26. 295 U.S. 654 (1935); see also Dimick v. Schiedt, 293 U.S. 474, 482 (1935). Decided a few months before Redman, Dimick referred to practices in England "at the time of the adoption of the Constitution," and also stated that to ascertain the 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, 293 U.S. at 476, 482. The decision in Redman, handed down five months later, provided a clearer statement of the basic formula for the "historical test" which was carried forward, with some modifications, for the rest of the century. See, e.g., Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 348 (1998); Wooddell v. International Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 97 (1991); Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 564 (1990); Tull v. United States, 481 U.S. 412, 417-18 (1986).
27. The term "historical test" probably first appeared in 1918. See Austin Wakeman Scott, Trial by Jury and the Reform of Civil Procedure, 31 HARV. L. REV. 669, 671 (1918).
28. Redman, 295 U.S. at 657.
29. See id.
30. Wolfram, supra note 12, at 639-40 (emphasis added).
31. The Right to Jury Trial Clause guarantees that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." U.S. CONST, amend. VII. The Re-Examination Clause provides that "no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." Id.
32. In Parsons v. Bedford, Justice Story, after first discussing the Right to Jury Trial Clause, referred to the Re-Examination Clause as follows: "But the other clause of the amendment is still more important; and we read it as a substantial and independent clause." Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447 (1830). In Colgrove v. Battin, the Court noted that with respect to the Re-Examination Clause, [t]he reference to "common law" contained in the second clause of the Seventh Amendment is irrelevant to our present inquiry because it deals exclusively with the prohibition contained in that clause against the indirect impairment of the right of trial by jury through judicial re-examination of factfindings of a jury other than as permitted in 1791. Colgrove v. Battin, 413 U.S. 149, 152 n.6 (1973). More recently, in Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996), the Court, in holding that a New York law controlling compensation awards for excessiveness can be given effect in federal court without offending the Seventh Amendment, noted the separate functions of the two different clauses: The Seventh Amendment . . . bears not only on the allocation of trial functions between judge and jury, the issue in Byrd; it also controls the allocation of authority to review verdicts, the issue of concern here . . . . Byrd involved the first Clause of the Amendment, the "trial by jury" Clause. This case involves the second, the "re-examination" Clause. Id. at 432. See Ex parte Peterson, 253 U.S. 300, 309 (1920), for an example of indiscriminate reference to the two clauses.
33. 28 F. Cas. 745, 748 (C.C.D. Mass. 1812) (No. 16,750). Justice Brandeis, for example, in Peterson, incorrectly cites Wonson, a Re-Examination Clause case, for the proposition that "[t]he right to a jury trial guaranteed in the federal courts is that known to the law of England, not the jury trial as modified by local usage or statute." Peterson, 253 U.S. at 309 n.1. The second case Justice Brandeis cited, Capital Traction Co. v. Hof, 174 U.S. 1 (1899), deals with both the Right to Jury Trial Clause and the Re-Examination Clause, but does not support Justice Brandeis's statement because it cites both English and American law as authority. See id. at 8-22.
34. In Wonson, Justice Story, as a circuit justice, had to decide whether an appeal from a judgment on jury verdict below raised only questions of law, or whether the facts were to be submitted to a second jury in the circuit court. See Wonson, 28 F. Cas. at 745. Justice Story's dilemma arose from a Massachusetts practice to have a second jury at the appellate level. See id. at 748. The United States, as appellant, argued that although the case was in federal court, the government was entitled to another jury trial at the circuit level, because this was the practice in the state courts of Massachusetts. See id. It was in this context that Justice Story ruled that the common law referred to in the Re-Examination Clause was the common law of England, rather than the common law of any individual state. See id. He noted that the common law probably differed in each individual state, but all based their common law on the law of England. See id. Justice Story also noted, however, that the practice of having a second jury on appeal, in Massachusetts and other New England states, is "a privilege existing by statute, and not by common law," and that it appeared to be "a peculiarity in New England." Id.
35. See Waring v. Clarke, 46 U.S. (5 How.) 441, 458-61 (1847); discussion infra notes 47-55 and accompanying text.
36. See Parsons, 28 U.S. (3 Pet.) at 441-58.
37. See Capital Traction, 174 U.S. at 8, 13, 15, 23 (referring to the common law of England for Re-Examination Clause purposes, but to the common law of both England and the United States for Right to Jury Trial Clause purposes).
38. See Scott, supra note 24, at 671.
39. Id. (citations omitted).
40. 170 U.S. 343 (1898), overruled on unrelated grounds by Collins v. Youngblood, 497 U.S. 37, 51-52 (1990).
41. 174 U.S. 1 (1899).
42. 176 U.S. 581 (1900).
43. See Maxwell, 176 U.S. at 582; Thompson, 170 U.S. at 344. "Only civil cases can serve as direct evidence of the contemporary understanding of the seventh amendment." Henderson, supra note 19, at 320. Henderson discusses criminal cases, however, to show how observations about criminal cases sometimes were erroneously applied to civil cases. See id. at 320-35.
44. Although the Court in Capital Traction states at one point that the common law means the common law of England, the reference is clearly to the Re-Examination Clause of the Seventh Amendment, and not to the Right to Jury Trial Clause. See Capital Traction, 174 U.S. at 22-23. When the Court discusses the right to trial by jury, and "what conditions may be imposed upon the demand of such a trial, consistently with preserving the right to it," the Court concludes that "the judicial decisions and the settled practice in the several States are entitled to great weight, inasmuch as the constitutions of all of them had secured the right of trial by jury in civil actions." Id. at 23.
45. Ex parte Peterson, 253 U.S. 300, 309 n.1 (1920). Interestingly, Justice Brandeis cites Professor Scott's article in Peterson, but for a different point: that new devices may be used to adapt the jury trial to present needs. See id. at 309-10 (citing Scott, supra note 24, at 669). In support of his conclusion that the jury trial right is determined by the common law of England, Brandeis cites Wonson, which only concerned the Re-Examination Clause of the Seventh Amendment, and Capital Traction, which relied on both English and American common law. See United States v. Wonson, 28 F. Cas. 745, 748 (C.C.D. Mass. 1812) (No. 16,750); Capital Traction, 174 U.S. at 23. Brandeis cited no other cases dealing with this point. See Peterson, 253 U.S. at 309 n.1.
46. The issue in Peterson was whether the appointment of an auditor, whose role was to simplify the issues before the jury, impermissibly interfered with the right to a jury trial. See Peterson, 253 U.S. at 304-05. Because Justice Brandeis, in his decision, considered practices in both the American colonies and in England, it is not apparent why he limited the applicable antecedent of the jury trial right to English law. See id. at 309-10. Brandeis may have been influenced by Professor Scott's article. See supra note 42 and accompanying text.
47. See Thompson, 170 U.S. at 350.
48. See Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935); Dimick v. Schiedt, 293 U.S. 474, 476 (1935).
49. For example, Justice Souter asserted in Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), that "[s]ince Justice Story's day, United States v. Wonson, we have understood that '[t]he right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted.'" Id. at 376 (citations omitted). As noted earlier, Justice Story did not deal at all with the right to a jury trial in the Wonson decision, and the historical test described by Justice Souter was not fully formulated until 1935. See supra notes 30-45 and accompanying text.
50. 46 U.S. (5 How.) 441 (1847).
51. See id. at 442-43.
52. Id. at 451-52 (quoting U.S. CONST, art. III, § 2, cl. 1).
53. Id. at 459.
54. Id. at 458.
55. Id. (quoting U.S. CONST, art. I, § 8, cl. 4; id. art. III, § 2, cl. 1).
56. Id. at 458-59.
57. There is, of course, some limited reference to the law of England as the common law referred to in the Re-Examination Clause, specifically in the Wonson decision, as well as in Capital Traction, decided at the end of the century. See Capital Traction Co. v. Hof, 174 U.S. 1, 8-22 (1899); United States v. Wonson, 28 F. Cas. 745, 748 (C.C.D. Mass. 1812) (No. 16,750); notes 30-31 and accompanying text. Wonson was a case decided not by the Supreme Court but by Mr. Justice Story in the federal circuit court. See Wonson, 28 F. Cas. at 745. Professor Wolfram believes that there is little basis to assume that the use of the term "common law" in the 1789-91 period necessarily referred to England. He notes that even Mr. Justice Story in his Wonson opinion did not deny that the language of the amendment could just as well have been read to refer to the common law in the states as to the common law of England. See Wolfram, supra note 12, at 734. Interestingly, in Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830), a number of years later, Mr. Justice Story, writing then for the Supreme Court, did not at any point suggest that the common law of England, as opposed to the common law of the American colonies, should be the reference point for constitutional interpretation of either clause of the Seventh Amendment. See id. at 446-49.
58. Whether English or American law controls can make a difference. In In re Lockwood, 50 F.3d 966 (Fed. Cir.), vacated sub nom. American Airlines, Inc. v. Lockwood, 515 U.S. 1182 (1995), Judge Nies, in dissent, argued that issues of patent validity, including underlying facts, should be determined by the judge rather than the jury. See id. at 981 (Nies, C.J., dissenting). In support of her position, Judge Nies noted that a suit to repeal a patent is similar to a writ of scire facias. See id. at 984 (Nies, C.J., dissenting). "Although writs of scire facias issued out of law courts in early American courts, English courts issued such writs in courts of equity. The historical test requires courts to look to English practice in 1791, not American practice." Id. at 985 n.7 (Nies, C.J., dissenting) (citations omitted). If one assumes Judge Nies was correct in her description of English and American practices, and in her comparison of a suit to repeal a patent with a writ of scire facias, then following English practice in this case would lead to a bench trial, while following American practice would lead to jury trial.
59. 415 U.S. 189 (1974).
60. See id. at 193-94.
61. Id. (quoting Parsons, 28 U.S. (3 Pet.) at 447).
62. 416 U.S. 363 (1974).
63. See id. at 371-74.
64. See id. at 374.
65. See id. at 375-76.
66. See id. at 376.
67. See at at 374 (citing Curtis v. Loether, 415 U.S. 189, 193 (1974)).
68. Id. at 375.
69. 481 U.S. 412 (1987).
70. See id. at 414.
71. Id. at 417.
72. See id. "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." Id. at 417-18 (citations omitted).
73. See id. at 420.
74. See id.
75. See id. 73 Id. (quoting Pernell v. Southall Realty, 416 U.S. 363, 375 (1974)).
76. Id. at 421 (quoting Ross v. Bernhard, 396 U.S. 531, 538 n.10 (1970)).
77. See id. "We reiterate our previously expressed view that characterizing the relief sought is '[m]ore important' than finding a precisely analogous common-law cause of action in determining whether the Seventh Amendment guarantees a jury trial." Id. (quoting Curtis v. Loether, 415 U.S. 189, 196 (1974) (alteration in original)).
78. See id. at 422.
79. See id. at 425. "A civil penalty was a type of remedy at common law that could only be enforced in courts of law." Id. at 421. In Tull, however, the assessment of the amount of the penalty was ultimately found to be matter for a judge. See id. at 427. In a more recent Supreme Court decision, Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998), the Court distinguished Tull, finding that the jury rather that the judge must determine statutory damages under section 504(c) of the Copyright Act, 17 U.S.C. § 504(c) (1994 & Supp. IV 1999). See Feltner, 523 U.S. at 355; infra Part V.B.
80. In Curtis, the decision was unanimous. See Curtis, 415 U.S. at 189. In Pernell, two Justices concurred in the result, but did not file separate opinions. See Pernell, 416 U.S. at 385. In Tull, Justice Scalia, with Justice Stevens, concurred in part, but dissented with respect to the determination of relief. Tull, 481 U.S. at 427-28 (Scalia & Stevens, JJ., concurring and dissenting). He believed the amount of the civil penalty should also be determined by a jury. See id. (Scalia & Stevens, JJ., concurring and dissenting).
81. See Tull, 481 U.S. at 421; Pernell, 416 U.S. at 382. "[W]here the action involves rights and remedies recognized at common law, it must preserve to parties their right to a jury trial." Pernell, 416 U.S. at 382 (citing Curtis, 415 U.S. at 195).
82. 494 U.S. 558 (1990). Justice Marshall delivered the opinion of the Court with respect to Parts I, II, III-B and IV, in which Chief Justice Rehnquist, and Justices Brennan, White, Blackmun, and Stevens joined, see id. at 561-65, 570-74, and an opinion with respect to Part III-A, in which Chief Justice Rehnquist and Justices White and Blackmun joined, see id. at 565-70 (plurality opinion). Justices Brennan and Stevens filed opinions concurring in part and concurring in the judgment. See id. at 574-81 (Brennan, J., concurring in part and concurring in judgment); id. at 581-84 (Stevens, J., concurring in part and concurring in judgment). Justice Kennedy filed a dissenting opinion, in which Justices O'Connor and Scalia joined. See id. at 584-95 (Kennedy, J., dissenting).
83. See id. at 561.
84. See id. at 562.
85. See id. at 565-70 (plurality opinion).
86. See id. at 565.
87. See id. at 560, 565-70 (plurality opinion).
88. See id. at 566-70 (plurality opinion).
89. See id. at 566-68 (plurality opinion).
90. See id. at 568-69 (plurality opinion).
91. Id. at 570 (plurality opinion).
92. See id. at 570-74.
93. Id. at 573-74.
94. See id. at 574 (Brennan, J., concurring in part and concurring in judgment); id. at 581 (Stevens, J., concurring in part and concurring in judgment).
95. id. at 575 (Brennan, J., concurring in part and concurring in judgment).
96. See id. at 574 (Brennan, J., concurring in part and concurring in judgment).
97. Id. (Brennan, J., concurring in part and concurring in judgment).
98. Id. at 579 n.7 (Brennan, J., concurring in part and concurring in judgment).
99. See id. (Brennan, J., concurring in part and concurring in judgment). As Justice Brennan noted, "[T]he nature of relief available today corresponds more directly to the nature of relief available in Georgian England. Thus the historical test I propose, focusing on the nature of the relief sought, is not only more manageable than the current test, it is more reliably grounded in history." Id. (Brennan, J., concurring in part and concurring in judgment).
100. Id. at 583 (Stevens, J., concurring in part and concurring in judgment) (citations omitted). 99 See id. at 584 (O'Connor, Scalia, and Kennedy, JJ., dissenting).
101. See id. (O'Connor, Scalia, and Kennedy, JJ., dissenting).
102. Id. at 591 (O'Connor, Scalia, and Kennedy, JJ., dissenting) (quoting Curtis v. Loether, 415 U.S. 189, 196 (1974)).
103. Id. at 592 (O'Connor, Scalia, and Kennedy, JJ., dissenting).
104. See id. at 574 (Brennan, J., concurring in part and concurring in judgment); id. at 581 (Stevens, J., concurring in part and concurring in judgment).
105. Id. at 592 (O'Connor, Scalia, and Kennedy, JJ., dissenting) (quoting Tull v. United States, 481 U.S. 412, 421 n.6 (1987)).
106. See id. at 573-74 (plurality opinion).
107. 29 U.S.C. §§ 401-531 (1994).
108. See Wooddell v. International Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 98 (1991) (deciding case without the participation of Justice Thomas).
109. See id. at 97.
110. See id. at 97-98. To determine whether a particular action will resolve legal rights, and therefore give rise to a jury trial right, 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. Id. at 97 (citations omitted).
111. See id. at 98.
112. Id.
113. See id. at 97. Explaining its decision in Chauffeurs, the Court said: "Because we found that the damages sought were neither analogous to equitable restitutionary relief, nor incidental to or intertwined with injunctive relief, we concluded that the remedy had none of the attributes required for an exception to the general rule, and thus found the remedy sought to be legal." Id.
114. Eighteenth-century juries, for example, were considered to have the power to decide both the law and the facts. In Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794), which involved an action to determine priority between creditors, Chief Justice John Jay charged the jury, "as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court [is] the best judge[ ] of law. But still both objects are lawfully, within your power of decision." Id. at 4; see also Morris S. Arnold, A Historical Inquiry into the Right to Trial by Jury in Complex Civil Litigation, 128 U. PA. L. REV. 829, 833 (1980) (stating that "juries in eighteenth-century America had much more power to decide questions both of law and fact than do modern ones"). Professor Scott notes that by the time of the American Revolution, English law already had established that juries decide questions of fact, while judges determine questions of law. See Scott, supra note 24, at 677. In the American colonies, however, the resentment of Crown judges and the popular enthusiasm for trials by jury tended to result in limitations on powers of American judges, and great latitude for juries. See id. Gradually, however, the jury's role shifted in the nineteenth century predominantly to that of fact-finder. See WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGES ON MASSACHUSETTS SOCIETY, 1760-1830, at 165-74 (1975).
115. Eighteenth-century juries, for example, were considered to have the power to decide both the law and the facts. In Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794), which involved an action to determine priority between creditors, Chief Justice John Jay charged the jury, "as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court [is] the best judge[ ] of law. But still both objects are lawfully, within your power of decision." Id. at 4; see also Morris S. Arnold, A Historical Inquiry into the Right to Trial by Jury in Complex Civil Litigation, 128 U. PA. L. REV. 829, 833 (1980) (stating that "juries in eighteenth-century America had much more power to decide questions both of law and fact than do modern ones"). Professor Scott notes that by the time of the American Revolution, English law already had established that juries decide questions of fact, while judges determine questions of law. See Scott, supra note 24, at 677. In the American colonies, however, the resentment of Crown judges and the popular enthusiasm for trials by jury tended to result in limitations on powers of American judges, and great latitude for juries. See id. Gradually, however, the jury's role shifted in the nineteenth century predominantly to that of fact-finder. See WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGES ON MASSACHUSETTS SOCIETY, 1760-1830, at 165-74 (1975).
116. See, e.g., Galloway v. United States, 319 U.S. 372, 390 (1943) ("The [Seventh] Amendment did not bind the federal courts to the exact procedural incidents or details of jury trial according to the common law in 1791, any more than it tied them to the common-law system of pleading or the specific rules of evidence then prevailing."); Colgrove v. Battin, 413 U.S. 149, 156 (1973) (citing with approval the above language from Galloway).
117. 165 U.S. 593 (1897).
118. See id. at 594.
119. See id. 118 Id. at 596 (emphasis added).
120. See id. at 598.
121. Ex parte Peterson, 253 U.S. 300, 309-12 (1920).
122. Id. at 309-10 (emphasis added) (citations omitted).
123. See id. at 310 n.1 (citing Scott, supra note 24, at 669).
124. 283 U.S. 494 (1931).
125. See id. at 497-98.
126. See id. at 498-500. Although the appellate court had directed a new trial only on the issue of damages on the counterclaim, the Supreme Court held that this question was so interwoven with that of liability that both the counterclaim and damages determination would have to be submitted to the jury in a new trial. The verdict in favor of the petitioner on the claim in chief, however, did not have to be retried. See id. at 496, 498-501.
127. id. at 498.
128. 319 U.S. 372 (1943).
129. See id. at 373, 392.
130. See id. at 388-96.
131. Id. at 390.
132. Id. at 392.
133. See id. at 390-91 n.22 (citing Gasoline Prods. Co. v. Champlin Ref. Co, 283 U.S. 494, 498 (1931); Ex parte Peterson, 253 U.S. 300, 309-10 (1920); Walker v. New Mexico & S. Pac. R.R. Co., 165 U.S. 593, 596-98 (1897)). The language from Galloway was quoted in Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), where the Court found that the use of offensive collateral estoppel (with no mutuality of parties) did not violate the petitioner's Seventh Amendment right to a jury trial, even though mutuality of parties was required at common law. See id. at 336-37.
134. 413 U.S. 149 (1973).
135. See id. at 159-60.
136. See id. at 158-60. But see Capital Traction Co. v. Hof, 174 U.S. 1,13 (1899) (stating that included in the right to a civil jury trial is the concept that "'[t]rial by jury,' in the primary and usual sense of the term at the common law and in the American constitutions . . . is a trial by a jury of twelve men").
137. Colgrove, 413 U.S. at 155-56.
138. 399 U.S. 78, 100-01 (1970) (finding a Florida statute that provides for a "six-man" jury for noncapital criminal trials to be constitutional).
139. See Colgrove, 413 U.S. at 157-59 (citing Williams, 399 U.S. at 100-01). 139 Id. at 157.
140. 293 U.S. 474 (1935).
141. See id. at 484-85.
142. See id. at 475-76.
143. See id. at 476.
144. See id. at 486-88.
145. Id. at 486.
146. Id. Curiously, the Court in Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1978), declared that the holding in Dimick was that the use of additur violated the Re-Examination Clause of the Seventh Amendment. See Parklane Hosiery, 439 U.S. at 336. That was not the Dimick Court's view. It specifically affirmed the holding of the court of appeals that the use of additur "violated the Seventh Amendment of the Federal Constitution in respect of the right of trial by jury." Dimick, 293 U.S. at 476. The trial court was not viewed as having re-examined a fact tried by a jury. Rather, the trial court was making "a bald addition" of something not included in the verdict, and therefore never passed upon by the jury. See id. at 486. Such an act by the lower court violated the right to trial by jury. See id. at 486-87.
147. Dimick, 293 U.S. at 485 (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *379).
148. id. at 486. This language concerning the importance of the jury has been cited in a number of other Supreme Court cases, see, e.g., Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 565 (1990); Parklane Hosiery, 439 U.S. at 346; Colgrove v. Battin, 413 U.S. 149, 187-88 (1973) (Marshall, J., dissenting); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 501 (1959), as well as in dozens of lower court decisions.
149. 481 U.S. 412 (1987).
150. See id. at 421.
151. Id. at 425-26.
152. Id. at 426 (quoting Colgrove, 413 U.S. at 157).
153. Id. (quoting Colgrove, 413 U.S. at 157).
154. Id. (quoting Colgrove, 413 U.S. at 156 n.11 (quoting Scott, supra note 24, at 671)).
155. See Scott, supra note 24, at 675-78.
156. Tull, 481 U.S. at 426 (quoting Galloway v. United States, 319 U.S. 372, 392 (1943)).
157. See Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 353 (1998) ("It has long been recognized that 'by the law the jury are judges of the damages. '" (citations omitted)); Bank of Hamilton v. Dudley's Lessee, 27 U.S. (2 Pet.) 492, 525 (1829).
158. Dimick v. Schiedt, 293 U.S. 474, 486 (1935).
159. See Feltner, 523 U.S. at 354-55; infra Part V.B.
160. Feltner, 523 U.S. at 353.
161. See id. at 355.
162. See id.
163. Id.
164. Id. at 355 n.9 (citations omitted).
165. Id. at 354 n.8.
166. See supra Part II.B.
167. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 345-46 (1979) (Rehnquist, J., dissenting).
168. See id. at 346 (Rehnquist, J., dissenting).
169. Conversely, the judge can also send to the jury, based on rules of evidence, matters which may not have been sent to the jury in 1791. In Galloway v. United States, 319 U.S. 372 (1943), the Court noted that [t]he rules governing the admissibility of evidence, for example, have a real impact on the jury's function as a trier of facts and the judge's power to impinge on that function. Yet it would hardly be maintained that the broader rules of admissibility now prevalent offend the Seventh Amendment because at the time of its adoption evidence now admitted would have been excluded. Id. at 391 n.22.
170. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (finding that like directed verdicts, summary judgment decisions are meant to screen out cases due to insufficient evidence as a matter of law, thus eliminating the need for a jury trial); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986) (same). In 1991, Rule 50 of the Federal Rules of Civil Procedure was changed so that judgment notwithstanding the verdict and directed verdict were both replaced with a single term: judgment as a matter of law. See FED. R. CIV. P. 50(a), (b). The basic practice has not changed under the new name, however. See id. In Galloway, Justice Black in dissent decried the directed verdict as "a long step toward the determination of fact by judges instead of by juries." Galloway, 319 U.S. at 401 (Black, J., dissenting). Justice Black noted that in the nineteenth century, a case had to go to the jury unless there was "no evidence whatever" to support a party's contentions. Id. at 402 (Black, J., dissenting). By the early twentieth century, the judge had the obligation to weigh the evidence, and if it was overwhelming for either party, he could direct a verdict. See id. at 404-05 (Black, J., dissenting) (citing Gunning v. Cooley, 281 U.S. 90, 94 (1930)). The current standard is simply if "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue," the court can grant judgment as a matter of law. FED. R. CIV. P. 50(a)(1).
171. See Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 659 (1935) ("Whether the evidence [supporting motions to dismiss and for a directed verdict] was sufficient or otherwise was a question of law to be resolved by the court."). Professor Dooley has noted that by characterizing the sufficiency of the evidence as a matter of law, the judge can second-guess the jury without appearing to "re-examine" decided facts or usurp jury power. "By enlarging the domain of 'legal questions,' by recognizing devices that facilitate second-guessing of jury decisions, and by redefining the circumstances under which that interference may occur, the legal system has quietly but unquestionably eroded the power of the jury." Laura Gaston Dooley, Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, 80 CORNELL L. REV. 325, 333-35 (1995) (citations omitted).
172. See Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 659 (1935) ("Whether the evidence [supporting motions to dismiss and for a directed verdict] was sufficient or otherwise was a question of law to be resolved by the court."). Professor Dooley has noted that by characterizing the sufficiency of the evidence as a matter of law, the judge can second-guess the jury without appearing to "re-examine" decided facts or usurp jury power. "By enlarging the domain of 'legal questions,' by recognizing devices that facilitate second-guessing of jury decisions, and by redefining the circumstances under which that interference may occur, the legal system has quietly but unquestionably eroded the power of the jury." Laura Gaston Dooley, Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, 80 CORNELL L. REV. 325, 333-35 (1995) (citations omitted).
173. 518 U.S. 415 (1995).
174. Id. at 436 n.20 (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *349) (citing Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899)). Gasperini held that "New York's law controlling compensation awards for excessiveness or inadequacy can be given effect, without detriment to the Seventh Amendment, if the review standard set out [in the New York law] is applied by the federal trial court judge, with appellate control of the trial court's ruling limited to review for 'abuse of discretion.'" Id. at 419.
175. See Colgrove v. Battin, 413 U.S. 149, 159-60 (1973).
176. 328 U.S. 217 (1946).
177. Id. at 220; see also 28 U.S.C. § 1861 (1994) (requiring "grand and petit juries [to be] selected at random from a fair cross section of the community"). Professor Laura Dooley argues that growth of restraints on jury power, as well as disdain for jury "irrationality" have paralleled and possibly been prompted by the increasing inclusion of women and minorities on the jury. The story of the civil jury in America is a tale that mixes progress in access for all citizens to this treasured civic duty with progressive decline in the influence associ-ated with that duty. . . . . . . . . . . [A] correlation may be drawn between the decline of jury influence and the inevitable post-Civil War change in jury personnel: as the jury became an object of demographic diversification, restraints on its power also were tightening. The very institution that was touted by constitutional framers as the bulwark of liberty had become a dangerous vehicle for upsetting the status quo. Dooley, supra note 171, at 349, 354.
178. When the Federal Rules of Civil Procedure were adopted in 1938, they provided for "only one action - a 'civil action' - in which all claims may be joined and all remedies are available." Ross v. Bernhard, 396 U.S. 531, 539 (1970); see also FED. R. Civ. P. 1, 2, 18.
179. 359 U.S. 500, 509 (1959).
180. 369 U.S. 469, 478 (1962).
181. Ross, 396 U.S. at 540.
182. See Beacon Theatres, 359 U.S. at 502.
183. See id. at 502-03.
184. See id. at 503.
185. See id.
186. See id.; John C. McCoid, II, Procedural Reform and the Right to a Jury Trial: A Study of Beacon Theatres, Inc. v. Westover, 116 U. PA. L. REV. 1, 5 (1967) (discussing "equity's traditional power to enjoin, pending adjudication in equity, proceedings at law instituted by plaintiffs adversary" (citing 3 JOHN NORTON POMEROY, EQUITY JURISPRUDENCE §§ 1360-1361, 1363 (San Francisco, A.L. Bancroft & Co. 1883))).
187. See id.; John C. McCoid, II, Procedural Reform and the Right to a Jury Trial: A Study of Beacon Theatres, Inc. v. Westover, 116 U. PA. L. REV. 1, 5 (1967) (discussing "equity's traditional power to enjoin, pending adjudication in equity, proceedings at law instituted by plaintiffs adversary" (citing 3 JOHN NORTON POMEROY, EQUITY JURISPRUDENCE §§ 1360-1361, 1363 (San Francisco, A.L. Bancroft & Co. 1883))).
188. See Beacon Theatres, 359 U.S. at 510-11.
189. Id. at 510 (footnote omitted).
190. See McCoid, supra note 185, at 5-6, 15-17; see also Beacon Theatres, 359 U.S. at 507 ("[C]ourts of equity . . . were, in some cases, allowed to enjoin subsequent legal actions between the same parties involving the same controversy . . . because the subsequent legal action . . . might not protect the right of the equity plaintiff to a fair and orderly adjudication of the controversy." (citations omitted)).
191. See McCoid, supra note 185, at 5-6, 15-17; see also Beacon Theatres, 359 U.S. at 507 ("[C]ourts of equity . . . were, in some cases, allowed to enjoin subsequent legal actions between the same parties involving the same controversy . . . because the subsequent legal action . . . might not protect the right of the equity plaintiff to a fair and orderly adjudication of the controversy." (citations omitted)).
192. Beacon Theatres, 359 U.S. at 507 (citations omitted).
193. See id. at 508.
194. Id. at 508 n.10 (citations omitted).
195. See id. at 518-19 (Harlan, Whittaker, and Stewart, JJ., dissenting).
196. See id. (Harlan, Whittaker, and Stewart, JJ., dissenting). Both the Federal Rules and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1994), in their view, merely preserve, but do not expand, the right to jury trial "historically cognizable at common law." See Beacon Theatres, 359 U.S. at 518-19 (Harlan, Whittaker, and Stewart, JJ., dissenting); see also 28 U.S.C. §§ 2201, 2202.
197. See id. (Harlan, Whittaker, and Stewart, JJ., dissenting). Both the Federal Rules and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1994), in their view, merely preserve, but do not expand, the right to jury trial "historically cognizable at common law." See Beacon Theatres, 359 U.S. at 518-19 (Harlan, Whittaker, and Stewart, JJ., dissenting); see also 28 U.S.C. §§ 2201, 2202.
198. Beacon Theatres, 359 U.S. at 509 (citations omitted). The Court noted that, in delegating to the Supreme Court the responsibility for drawing up the Federal Rules, Congress declared: "Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution." Id. at 510 n.16 (quoting Act of June 25, 1948, ch. 646, § 2072, 62 Stat. 869, 961 (codified as amended at 28 U.S.C. § 2072)). Section 2072 no longer references the common law or Seventh Amendment. See 28 U.S.C. § 2072.
199. See Beacon Theatres, 359 U.S. at 509; see also McCoid, supra note 185, at 6. Professor McCoid stated that Beacon Theatres is consistent with the view that the scope of Seventh Amendment protection has always been one of "jurisdictional lines between law on the one hand, and equity and admiralty on the other." McCoid, supra note 185, at 23. Because Seventh Amendment protection is based on a jurisdictional principle, the jurisdiction should be determined by present, not past procedure. See id. at 23-24. Professor McCoid concluded that "[t]he Beacon decision . . . clearly enlarges enjoyment of jury trial as of right and reflects a basic projury bias. That it should do so is quite clear, in view of the pro-jury bias of the Constitution." Id. at 24.
200. 369 U.S. 469 (1962).
201. See id. at 475.
202. Id. at 470 (quoting McCullough v. Dairy Queen, Inc., 194 F. Supp. 686, 687 (E.D. Pa. 1961), rev'd sub nom. Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962)). The Third Circuit had denied mandamus without opinion. See id.
203. Id. at 473 n.8 (quoting Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp., 294 F.2d 486, 491 (5th Cir. 1961)).
204. See id. at 477.
205. See id. at 477-78.
206. Id. (citing Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-10 (1959)).
207. Id. at 478 (quoting Kirby v. Lake Shore & Mich. S. R.R. Co., 120 U.S. 130, 134 (1887)).
208. See id. at 478-79.
209. See id. at 478; see also FED. R. Civ. P. 53.
210. Dairy Queen, 369 U.S. at 478 (footnote omitted).
211. Although similar procedures antedate the federal rules, appointing masters is a procedural innovation when compared with rules of 1791. See Ex parte Peterson, 253 U.S. 300, 307-09 (1920); see also McCoid, supra note 185, at 8.
212. See McCoid, supra note 185, at 12-13.
213. 396 U.S. 531 (1970).
214. See id. at 531.
215. See Ross v. Bernhard, 403 F.2d 909, 912 (2d Cir. 1968), rev'd, 396 U.S. at 543. The district court had held that the shareholders had a jury trial right, because the cause of action they were asserting on behalf of the corporation was legal in nature. See Ross v. Bernhard, 275 F. Supp. 569, 570-71 (S.D.N.Y. 1967), rev'd, 403 F.2d at 910, rev'd, 396 U.S. at 543.
216. Ross, 396 U.S. at 539.
217. Id. at 540 (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 509 (1959)).
218. Id. at 544 (Burger, C.J., Harlan & Stewart, JJ., dissenting). Two of the three dissenters, Justices Harlan and Stewart, had also dissented in Beacon Theatres. See Beacon Theatres, 359 U.S. at 511 (Stewart, Harlan, and Whittaker, JJ., dissenting).
219. See Ross, 369 U.S. at 539-40. From 1789 until 1938, the judicial code forbade courts of equity from accepting jurisdiction of any suit for which there was an adequate remedy at law. See id. at 539. The Judicial Code of 1911, ch. 231, § 267, 36 Stat. 1087, 1163, re-enacting the Act of Sept. 24, 1789, ch. 20, § 16,1 Stat. 73, 82, provided: "Suits in equity shall not be sustained in any court of the United States in any case where a plain, adequate, and complete remedy may be had at law." Judicial Code of 1911, ch. 231, § 267, quoted in Ross, 396 U.S. at 539 n.12.
220. Martin H. Redish & Daniel J. La Fave, Seventh Amendment Right to Jury Trial in Non-Article III Proceedings: A Study in Dysfunctional Constitutional Theory, 4 WM. & MARY BILL OF RTS. J. 407, 415 & n.36 (1995) (quoting McCoid, supra note 185, at 11).
221. Some early cases stating that Congress could provide for determinations involving public rights outside the judicial sphere include Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 280-81 (1855) (asserting that Congress is not required to bring certain matters, involving public rights, which may be susceptible to judicial determination, within the cognizance of the courts), and Crowell v. Benson, 285 U.S. 22, 50 (1932) (distinguishing between private rights and rights involving government's authority to perform constitutional functions of the executive or legislative departments).
222. 382 U.S. 323 (1966).
223. See id. at 325. A "preference" occurs when an insolvent debtor distributes or pays to one or more of its creditors a larger amount than they would have been entitled to receive on a pro rata distribution among creditors. See MICHAEL J. HERBERT, UNDERSTANDING BANKRUPTCY 247, 250 (1995). Bankruptcy courts are sometimes referred to as non-Article III courts, because they are not explicitly authorized by Article III of the U.S. Constitution. In this sense, they resemble the non-Article III fora created by Congress to resolve issues administratively.
224. See id. at 325. A "preference" occurs when an insolvent debtor distributes or pays to one or more of its creditors a larger amount than they would have been entitled to receive on a pro rata distribution among creditors. See MICHAEL J. HERBERT, UNDERSTANDING BANKRUPTCY 247, 250 (1995). Bankruptcy courts are sometimes referred to as non-Article III courts, because they are not explicitly authorized by Article III of the U.S. Constitution. In this sense, they resemble the non-Article III fora created by Congress to resolve issues administratively.
225. Compare Pepper v. Litton, 308 U.S. 295, 304 (1939) (stating that "for many purposes 'courts of bankruptcy are essentially courts of equity'" (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 240 (1934))), and Nordberg v. Granflnanciera, S.A., 835 F.2d 1341, 1349 (11th Cir. 1988), rev'd, 492 U.S. 33 (1989) (holding that "bankruptcy . . . is equitable in nature and thus bankruptcy proceedings are inherently equitable"), with Schoenthal v. Irving Trust Co., 287 U.S. 92, 95 (1932) (finding that after an equitable suit seeking a preference had been filed against them, defendants were entitled to a transfer to a court of law because plaintiff "'had a plain, adequate, and complete remedy at law'" (citations omitted)).
226. See Katchen, 382 U.S. at 325.
227. See id. at 340. A "plenary action" is a complete and formal hearing or trial on the merits, as opposed to a summary hearing which is generally more informal. See May v. Henderson, 268 U.S. 111, 115 (1925). Some preferences may be recovered only by a plenary action in federal court, and in such an action, the creditor could demand a jury trial. See Schoenthal, 287 U.S. at 95-96. Eleven years after Katchen, in Atlas Roofing Co. v. Occupational Safety & Health Review Commission, 430 U.S. 442 (1977), the Court explained its decision in Katchen as being based upon the bankruptcy court's status as a "specialized court of equity" which "constituted a forum before which a jury would be out of place and would go far to dismantle the statutory scheme." Atlas Roofing, 430 U.S. at 454 n.11.
228. Katchen, 382 U.S. at 339.
229. 430 U.S. 442 (1977).
230. 29 U.S.C. §§ 651-678 (1994 & Supp. III 1998); see Atlas Roofing, 430 U.S. at 461.
231. See Atlas Roofing, 430 U.S. at 448-49.
232. Id. at 450. The Court's deference to Congress in Atlas Roofing was severely criticized by Martin Redish and Daniel La Fave: [T]he fact that enforcement of a constitutional right would severely disrupt a congressional scheme must be deemed irrelevant, lest our essential constitutional structure be turned on its head. By way of contrast, few constitutional theorists today would suggest that the First Amendment right of free expression must give way merely because its enforcement would be "incompatible" with a congressional scheme. Certainly, such an approach would be inconsistent with current free speech doctrine. Congress could not, for example, constitutionally prohibit criticism of one of its legislative programs because such criticism could have the effect of undermining achievement of the program's social goals. A greater departure from our constitutional scheme would result from total judicial deference to a congressional determination concerning that incompatibility. The Court has provided absolutely no principled basis on which to distinguish, for these purposes, the Seventh Amendment right to jury trial from the First Amendment right of free expression. Redish & La Fave, supra note 216, at 450 (footnotes omitted).
233. Atlas Roofing, 430 U.S. at 450. The Court also noted that "[w]holly private tort, contract, and property cases, as well as a vast range of other cases, are not at all implicated." Id. at 458.
234. See id. at 450 & n.7.
235. Id. at 460.
236. Id. at 460-61.
237. See id. at 455.
238. 492 U.S. 33 (1989).
239. See id. at 54.
240. See id. at 51-52.
241. Pub. L. No. 98-353, § 104(a), 98 Stat. 333, 340 (codified at 28 U.S.C. § 157 (1994)).
242. See 28 U.S.C. § 157(b)(2)(H). Section 157(b)(1) provides: Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title. Id. § 157(b)(1). Section 157(b)(2) then provides a non-exclusive list of core proceedings.
243. See Granfinanciera, 492 U.S. at 36.
244. See id. at 37.
245. Id. at 56 (quoting Schoenthal v. Irving Trust Co., 287 U.S. 92, 94-95 (1932)). The Court noted that the plurality decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co. stated that the debtor creditor relations in bankruptcy "may well be a 'public right,'" but "that state-law causes of action for breach of contract or warranty are paradigmatic private rights, even when asserted by an insolvent corporation in the midst of Chapter 11 reorganization proceedings." Id. (quoting Northern Pipeline Constr, Co. v. Marathon Pipe Line Co., 458 U.S. 50, 71 (1982)).
246. id. at 61. The Court distinguished Katchen by noting that the creditor in that case had filed a claim in the bankruptcy proceeding, unlike the creditors in Granfinanciera. See id. at 57. The Court asserted that its decision in Katchen turned on "the bankruptcy court's having 'actual or constructive possession' of the bankruptcy estate." Id. (quoting Katchen v. Landry, 382 U.S. 323, 327 (1966)). The Court noted further: "[B]y submitting a claim against the bankruptcy estate, creditors subject themselves to the court's equitable power to disallow those claims, even though the debtor's opposing counterclaims are legal in nature and the Seventh Amendment would have entitled creditors to a jury trial had they not tendered claims against the estate." Id. at 59 n.13.
247. 473 U.S. 568 (1985). In rejecting a challenge to an Environmental Protection Agency proceeding, the Thomas Court found the proceeding involved a public right: "Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, may create a seemingly 'private' right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary." Id. at 593-94.
248. Granfinanciera, 492 U.S. at 55 n.10.
249. Id. at 56 n.11 (citing Northern Pipeline, 458 U.S. at 71).
250. Id. at 63.
251. Id. (quoting Bowsher v. Synar, 478 U.S. 714, 736 (1986) (quoting INS v. Chadha, 462 U.S. 919, 944 (1983))); see also Pernell v. Southall Realty, 416 U.S. 363, 384 (1974) (discounting arguments that jury trials would be unduly burdensome and rejecting "the notion that there is some necessary inconsistency between the desire for speedy justice and the right to jury trial"). The Court's Atlas Roofing argument stated: "Congress is not required by the Seventh Amendment to choke the already crowded federal courts with new types of litigation or prevented from committing some new types of litigation to administrative agencies with special competence in the relevant field." Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442, 455 (1977).
252. See Wooddell v. International Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 97 (1991). " '"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." Id. (quoting Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 565 (1990) (quoting Tull v. United States, 481 U.S. 412, 417-18 (1987))). The "historical test" has been severely criticized. See, e.g., Chauffeurs, 494 U.S. at 574-81 (Brennan, J., concurring); Kenneth S. Klein, The Myth of How to Interpret the Seventh Amendment Right to a Civil Jury Trial, 53 OHIO ST. L.J. 1005, 1006 (1992);
253. See Wooddell v. International Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 97 (1991). " '"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." Id. (quoting Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 565 (1990) (quoting Tull v. United States, 481 U.S. 412, 417-18 (1987))). The "historical test" has been severely criticized. See, e.g., Chauffeurs, 494 U.S. at 574-81 (Brennan, J., concurring); Kenneth S. Klein, The Myth of How to Interpret the Seventh Amendment Right to a Civil Jury Trial, 53 OHIO ST. L.J. 1005, 1006 (1992);
254. See Wooddell v. International Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 97 (1991). " '"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." Id. (quoting Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 565 (1990) (quoting Tull v. United States, 481 U.S. 412, 417-18 (1987))). The "historical test" has been severely criticized. See, e.g., Chauffeurs, 494 U.S. at 574-81 (Brennan, J., concurring); Kenneth S. Klein, The Myth of How to Interpret the Seventh Amendment Right to a Civil Jury Trial, 53 OHIO ST. L.J. 1005, 1006 (1992);
255. Wolfram, supra note 12, at 731-47.
256. With respect to the "substance" of the Seventh Amendment-the jury's fact-finding role - the Supreme Court has consistently defined this jury function to include determining credibility, weighing contradictory evidence, and drawing inferences from the facts. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (stating that "[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge"). In Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29 (1944), the Court said: It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable. Id. at 35 (citations omitted).
257. See Granfinanciera, 492 U.S. at 51.
258. But see Harbor Software, Inc. v. Applied Sys., Inc., 925 F. Supp. 1042 (S.D.N.Y. 1996), where the district court in a copyright case determined which elements of a computer program were protectable as a matter of law, citing Markman's holding that interpretation of patent claims is a matter of law. See id. at 1046.
259. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 373 (1996).
260. See id. 253 See 35 U.S.C. § 112 (1994). A person "skilled in the art" is one who is skilled in the area of science in which the invention is classified.
261. See HERBERT F. SCHWARTZ, FEDERAL JUDICIAL CTR., PATENT LAW & PRACTICE 11-12 (2d ed. 1995).
262. "Claim language does not exist in a vacuum; it must be understood by reference to the documents annexed to the patent grant, including the specification, of which the claims are a part, and any drawings." Markman v. Westview Instruments, Inc., 52 F.3d 967, 990 (Fed. Cir. 1995) (Mayer, J., concurring), aff'd, 517 U.S. 370 (1996).
263. See infra Part III.A.
264. See Markman, 517 U.S. at 377; see also SSIH Equip. S.A. v. United States Int'l Trade Comm'n, 718 F.2d 365, 376 (Fed. Cir. 1983).
265. See Markman, 52 F.3d at 978.
266. See Patrick Devlin, Jury Trial of Complex Cases: English Practice at the Time of the Seventh Amendment, 80 COLUM. L. REV. 43, 75-76 (1980); Stephen A. Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 CAL. L. REV. 1867, 1932 (1966).
267. See Patrick Devlin, Jury Trial of Complex Cases: English Practice at the Time of the Seventh Amendment, 80 COLUM. L. REV. 43, 75-76 (1980); Stephen A. Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 CAL. L. REV. 1867, 1932 (1966).
268. A "term of art" includes one or more words having a specific meaning in an industry or field which may not be the same as the ordinary meaning of the words. See Argus Chem. Corp. v. Fibre Glass-Evercoat Co., 759 F.2d 10, 14 n.5 (Fed Cir. 1985).
269. Markman, 52 F.3d at 991 (Mayer, J., concurring).
270. See supra text accompanying notes 256-257; see also ALBERT H. WALKER, TEXTBOOK OF THE PATENT LAWS OF THE UNITED STATES OF AMERICA § 536 (4th ed. 1904) ("[W]here the question of infringement depends upon the construction of the patent, and that construction depends upon a doubtful question in the prior art, the . . . question of infringement should also be left for the jury to decide.").
271. See supra text accompanying notes 256-257; see also ALBERT H. WALKER, TEXTBOOK OF THE PATENT LAWS OF THE UNITED STATES OF AMERICA § 536 (4th ed. 1904) ("[W]here the question of infringement depends upon the construction of the patent, and that construction depends upon a doubtful question in the prior art, the . . . question of infringement should also be left for the jury to decide.").
272. "Deciding the meaning of the words used in the patent is often dispositive of the question of infringement." Markman, 52 F.3d at 999 (Newman, J., dissenting). Judge Mayer, in his opinion concurring in the judgment, but strongly disagreeing with the reasoning of the Federal Circuit, put it even more strongly: "[T]his is not just about claim language, it is about ejecting juries from infringement cases. All these pages and all these words cannot camouflage what the court well knows: to decide what the claims mean is nearly always to decide the case." Id. at 989 (Mayer, J., concurring).
273. Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996).
274. Congress created the Federal Circuit as, inter alia, an exclusive appellate court for patent cases. See H.R. REP. No. 97-312, at 20-23 (1981).
275. See Markman, 52 F.3d at 977.
276. Markman, 517 U.S. at 372.
277. See Markman, 52 F.3d at 978.
278. Great N. Ry. Co. v. Merchants Elevator Co., 259 U.S. 285, 291-92 (1922).
279. See Rankin v. Fidelity Ins. Trust & Safe Deposit Co., 189 U.S. 242, 252-53 (1903) (holding that although "the construction of written instruments is one for the court, where the case turns upon the proper conclusions to be drawn from a series of letters, particularly of a commercial character, taken in connection with other facts and circumstances, it is one which is properly referred to a jury" (citing Brown v. McGran, 39 U.S. (14 Pet.) 479, 493 (1840))). In a decision by Mr. Justice Story, the Court stated that there certainly are cases, in which, from the different senses of the words used, or their obscure and indeterminate reference to unexplained circumstances, the true interpretation of the language may be left to the consideration of the jury for the purpose of carrying into effect the real intention of the parties. Brown, 39 U.S. (14 Pet.) at 493.
280. In Great Northern Railway, the Court stated: When the words of a written instrument are used in their ordinary meaning, their construction presents a question solely of law. But words are used sometimes in a peculiar meaning. Then extrinsic evidence may be necessary to determine the meaning of words appearing in the document. This is true where technical words or phrases not commonly understood are employed. Or extrinsic evidence may be necessary to establish a usage of trade or locality which attaches to provisions not expressed in the language of the instrument. Where such a situation arises, and the peculiar meaning of words, or the existence of a usage, is proved by evidence, the function of construction is necessarily preceded by the determination of the matter of fact. Where the controversy over the writing arises in a case which is being tried before a jury, the decision of the question of fact is left to the jury, with instructions from the court as to how the document shall be construed, if the jury finds that the alleged peculiar meaning or usage is established. Great Northern Railway, 259 U.S. at 291-92.
281. See Moeller v. Ionetics, Inc., 794 F.2d 653, 657 (Fed. Cir. 1986) ("[A]lthough claim construction is a legal question, underlying fact disputes may arise pertaining to extrinsic evidence that might preclude summary judgment treatment of claim construction."), overruled by Markman, 52 F.3d at 977, 979; Palumbo v. Don-Joy Co., 762 F.2d 969, 974 (Fed. Cir. 1985) (when meaning of a claim term is disputed, "then an underlying factual question arises, and construction of the claim should be left to the trier or jury under appropriate instruction"), overruled by Markman, 52 F.3d at 977, 979; McGill, Inc. v. John Zink Co., 736 F.2d 666, 672 (Fed. Cir. 1984) (when meaning of a term in the claim is disputed, and extrinsic evidence needed to explain it, construction of claim is left to the jury, and the jury "cannot be directed to the disputed meaning"), overruled by Markman, 52 F.3d at 976, 979. These and similar cases were disapproved by the Federal Circuit in its holding in Markman. See Markman, 52 F.3d at 979.
282. See 3 ARTHUR LINTON CORBIN, CORBIN ON CONTRACTS § 554 (1960); 4 SAMUEL WILLISTON & WALTER H.E. JAEGER, A TREATISE ON THE LAW OF CONTRACTS: WILLISTON ON CONTRACTS § 616 (3d ed. 1961); see also RESTATEMENT (SECOND) OF CONTRACTS § 212(2). "A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence." RESTATEMENT (SECOND) OF CONTRACTS § 212(2).
283. See 3 ARTHUR LINTON CORBIN, CORBIN ON CONTRACTS § 554 (1960); 4 SAMUEL WILLISTON & WALTER H.E. JAEGER, A TREATISE ON THE LAW OF CONTRACTS: WILLISTON ON CONTRACTS § 616 (3d ed. 1961); see also RESTATEMENT (SECOND) OF CONTRACTS § 212(2). "A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence." RESTATEMENT (SECOND) OF CONTRACTS § 212(2).
284. See 3 ARTHUR LINTON CORBIN, CORBIN ON CONTRACTS § 554 (1960); 4 SAMUEL WILLISTON & WALTER H.E. JAEGER, A TREATISE ON THE LAW OF CONTRACTS: WILLISTON ON CONTRACTS § 616 (3d ed. 1961); see also RESTATEMENT (SECOND) OF CONTRACTS § 212(2). "A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence." RESTATEMENT (SECOND) OF CONTRACTS § 212(2).
285. See 3 ARTHUR LINTON CORBIN, CORBIN ON CONTRACTS § 554 (1960); 4 SAMUEL WILLISTON & WALTER H.E. JAEGER, A TREATISE ON THE LAW OF CONTRACTS: WILLISTON ON CONTRACTS § 616 (3d ed. 1961); see also RESTATEMENT (SECOND) OF CONTRACTS § 212(2). "A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence." RESTATEMENT (SECOND) OF CONTRACTS § 212(2).
286. See Markman, 52 F.3d at 987. This argument was never discussed in the Supreme Court's decision. See Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996).
287. See Markman, 52 F.3d at 985.
288. Id. at 986.
289. Section 1-205(2) of the Uniform Commercial Code provides that "[t]he existence and scope of . . . [trade] usage are to be proved as facts." U.C.C. § 1-205(2) (1999); see also Frigaliment Importing Co. v. B.N.S. Int'l Sales Corp., 190 F. Supp. 116, 119 (S.D.N Y. 1960) (considering evidence of trade usage in attempt to explain meaning of contract); Hurst v. W.J. Lake & Co., Inc. 16 P.2d 627, 629-31 (Or. 1932) (reversing trial court's grant of motion for judgment on pleadings; holding plaintiff should have been permitted to use trade usage evidence to establish meaning of contract).
290. 945 F.2d 1546 (Fed. Cir. 1991), overruled by Markman, 52 F.3d at 979.
291. Id. at 1550 (emphasis added).
292. See Markman, 52 F.3d at 989 (Mayer, J., concurring); id. at 999 (Newman, J., dissenting).
293. See id. at 976.
294. Id. at 977.
295. See id. (citing Read Corp. v. Portec, Inc., 970 F.2d 816, 822-23 (Fed. Cir. 1992); Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1387-88 (Fed. Cir. 1992); Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1561-63 (Fed. Cir. 1991); Senmed, Inc. v. Richard-Allan Med. Indus., Inc., 888 F.2d 815, 818-20 (Fed. Cir. 1989); Specialty Composites v. Cabot Corp., 845 F.2d 981, 986 (Fed. Cir. 1988)).
296. Id. at 989 (Mayer, J., concurring). Judge Mayer cited several cases as authority for this proposition. See id. at 989-90 (Mayer, J., concurring) (citing Arachnid Inc. v. Medalist Mktg. Corp., 972 F.2d 1300, 1302 (Fed. Cir. 1992) (stating that although claim construction is an issue of law for the court, it "may require the factfinder to resolve certain factual issues such as what occurred during the prosecution history"); Lemelson v. General Mills, Inc., 968 F.2d 1202, 1206 (Fed. Cir. 1992) (similarly noting that "underlying factual issues in dispute become the jury's province to resolve in the course of rendering its verdict on infringement"); Johnston v. IVAC Corp., 885 F.2d 1574, 1579-80 (Fed. Cir. 1989) ("A disputed issue of fact may, of course, arise in connection with interpretation of a term in a claim if there is a genuine evidentiary conflict created by the underlying probative evidence pertinent to the claim's interpretation. However, without such evidentiary conflict, claim interpretation may be resolved as an issue of law by the court . . . ." (citations omitted))).
297. Id. at 990 n.2 (Mayer, J., concurring) (citing Portec, 970 F.2d at 822-23) (additional citations omitted). The Federal Circuit also asserted that "[t]he Supreme Court has repeatedly held that the construction of a patent claim is a matter of law exclusively for the court." Id. at 977. Both Judge Mayer and Judge Newman pointed out the inaccuracy of this statement. Judge Mayer commented: "Close examination of these cases, however, reveals that, like the one before us today, interpretation of the claims at issue before the deciding court presented no real factual question." Id. at 993 (Mayer, J., concurring). Judge Newman observed that while the statement is correct when referring to the court's responsibility to decide the legal effect of a patent claim, "it is not correct with respect to findings of disputed factual issues, issues that usually relate to the meaning and scope of the technologic terms and words of technical art that define the invention." Id. at 1021 (Newman, J., dissenting).
298. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 351 (1979) (Rehnquist, J., dissenting). Justice Rehnquist, in his dissent, stated that "use of offensive collateral estoppel in this case runs counter to the strong federal policy favoring jury trials," and noted that the Court's decision in Beacon Theatres "exemplifies that policy." Id. (Rehnquist, J., dissenting). Justice Rehnquist also recalled: "The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts." Id. at 352 (Rehnquist, J., dissenting) (quoting Jacob v. New York, 315 U.S. 752, 752-53 (1942)); see Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 537-39 (1958).
299. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 391 (1996).
300. See id. at 374-75.
301. See id. at 375. 290 See id.
302. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 973 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. at 391.
303. See id. at 971.
304. See Markman v. Westview Instruments, Inc., 772 F. Supp. 1535, 1537 (E.D. Pa. 1991), aff'd, 52 F.3d at 989, aff'd, 517 U.S. at 391.
305. See Markman, 52 F.3d at 984.
306. Markman, 517 U.S. at 376 (quoting Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935)). As discussed supra notes 24-46 and accompanying text, the historical test described by Justice Souter is actually of more recent vintage, having first been fully formulated in 1935. The Wonson decision dealt only with the Re-Examination Clause of the Seventh Amendment, and not with the Right to Jury Trial Clause. See supra note 31 and accompanying text.
307. Markman, 517 U.S. at 376.
308. See id.
309. Id. (citations omitted).
310. Ross v. Bernhard, 396 U.S. 531, 538 n.10 (1970).
311. Markman, 517 U.S. at 377; see Tull v. United States, 481 U.S. 412, 417 (1987) ("To determine whether a statutory action is more similar to cases that were tried in courts of law than to suits tried in courts of equity or admiralty, the Court must examine both the nature of the action and of 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.").
312. Markman, 517 U.S. at 376.
313. There are some exceptions, of course. For example, in addition to the general rule that courts alone construe written documents, courts also construe statutes, determine foreign law, and decide jurisdictional questions. For discussions of the fact/law distinction, see generally Francis H. Bohlen, Mixed Questions of Law and Fact, 72 U. PA. L. REV. Ill (1924), James B. Thayer, "Law and Fact" in Jury Trials, 4 HARV. L. REV. 147 (1890), and Weiner, supra note 259.
314. There are some exceptions, of course. For example, in addition to the general rule that courts alone construe written documents, courts also construe statutes, determine foreign law, and decide jurisdictional questions. For discussions of the fact/law distinction, see generally Francis H. Bohlen, Mixed Questions of Law and Fact, 72 U. PA. L. REV. Ill (1924), James B. Thayer, "Law and Fact" in Jury Trials, 4 HARV. L. REV. 147 (1890), and Weiner, supra note 259.
315. See Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470-73 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-11 (1958).
316. See Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 569 n.6 (1990) ("The question whether the Seventh Amendment analysis requires an examination of the nature of each element of a typical claim is not presented by this case. The claim we confront here is not typical; instead, it is a claim consisting of discrete issues that would normally be brought as two claims, one against the employer and one against the union.").
317. Markman, 517 U.S. at 377.
318. Id. at 376.
319. A good summary of this position is found in the four Justice dissent in Dimick v. Schiedt: [T]his Court has often refused to construe [the Seventh Amendment] as intended to perpetuate in changeless form the minutiae of trial practice as it existed in the English courts in 1791. . . . [T]he Seventh Amendment guarantees that suitors in actions at law shall have the benefits of trial of issues of fact by a jury, but it does not prescribe any particular procedure by which these benefits shall be obtained, or forbid any which does not curtail the function of the jury to decide questions of fact Dimick v. Schiedt, 293 U.S. 474, 490-91 (1935) (Hughes, Brandeis, Stone, and Cardozo, JJ., dissenting) (emphasis added). Justice Stone then listed a number of novel jury practices, not known to the common law, which had been approved by the Court, and concluded: "[b]ut this Court has found in the Seventh Amendment no bar to the adoption by the federal courts of these novel methods . . . for they left unimpaired the function of the jury, to decide issues of fact." Id. at 492 (Hughes, Brandeis, Stone, and Cardozo, JJ., dissenting) (emphasis added).
320. See Markman, 517 U.S. at 377-78.
321. See id.
322. See id.
323. See supra Parts II.C and II.D.
324. See supra note 248.
325. See Galloway v. United States, 319 U.S. 372, 395-96 (1943).
326. See Fidelity & Deposit Co. v. United States, 187 U.S. 315, 319-21 (1902).
327. See Colgrove v. Battin, 413 U.S. 149, 158-60 (1973).
328. See Ex parte Peterson, 253 U.S. 300, 309-10 (1920).
329. See Gasoline Prods. Co. v. Champlin Ref. Co., 283 U.S. 494, 498-99 (1931).
330. See Walker v. New Mexico & S. Pac. R.R. Co., 165 U.S. 593, 596-98 (1897).
331. This is not to say that fact/law distinctions are always clear and certain. Numerous sources have discussed this subject. See Douglas G. Baird, Bankruptcy Procedure and State-Created Rights: The Lesson of Gibbons and Marathon, 1982 SUP. CT. REV. 25, 44; David P. Currie, Bankruptcy Judges and the Independent Judiciary, 16 CREIGHTON L. REV. 441, 452 (1983); S. Elizabeth Gibson, Jury Trials in Bankruptcy: Obeying the Commands of Article III and the Seventh Amendment, 72 MINN. L. REV. 967, 1041 n.347 (1988). In most cases, however, judges have a fairly good sense of what issues should go to the jury. Prior to Markman, judges in patent cases regularly sent issues of disputed terms of art in patent claims to the jury. See supra notes 272, 280-285 and accompanying text.
332. This is not to say that fact/law distinctions are always clear and certain. Numerous sources have discussed this subject. See Douglas G. Baird, Bankruptcy Procedure and State-Created Rights: The Lesson of Gibbons and Marathon, 1982 SUP. CT. REV. 25, 44; David P. Currie, Bankruptcy Judges and the Independent Judiciary, 16 CREIGHTON L. REV. 441, 452 (1983); S. Elizabeth Gibson, Jury Trials in Bankruptcy: Obeying the Commands of Article III and the Seventh Amendment, 72 MINN. L. REV. 967, 1041 n.347 (1988). In most cases, however, judges have a fairly good sense of what issues should go to the jury. Prior to Markman, judges in patent cases regularly sent issues of disputed terms of art in patent claims to the jury. See supra notes 272, 280-285 and accompanying text.
333. This is not to say that fact/law distinctions are always clear and certain. Numerous sources have discussed this subject. See Douglas G. Baird, Bankruptcy Procedure and State-Created Rights: The Lesson of Gibbons and Marathon, 1982 SUP. CT. REV. 25, 44; David P. Currie, Bankruptcy Judges and the Independent Judiciary, 16 CREIGHTON L. REV. 441, 452 (1983); S. Elizabeth Gibson, Jury Trials in Bankruptcy: Obeying the Commands of Article III and the Seventh Amendment, 72 MINN. L. REV. 967, 1041 n.347 (1988). In most cases, however, judges have a fairly good sense of what issues should go to the jury. Prior to Markman, judges in patent cases regularly sent issues of disputed terms of art in patent claims to the jury. See supra notes 272, 280-285 and accompanying text.
334. Markman v. Westview Instruments, Inc., 517 U.S. 370, 378 (1996).
335. Id. at 377.
336. See id. at 378.
337. Id. (quoting Tull v. United States, 481 U.S. 412, 426 (1987) (quoting Colgrove v. Battin, 413 U.S. 149, 157 (1973))).
338. See id.
339. Id.
340. See id. 327 See supra note 263 and accompanying text.
341. 119 S. Ct. 1624 (1999).
342. See supra notes 181-195 and accompanying text discussing Beacon Theatres, Inc. v. Westover.
343. In many cases, deciding the meaning of the claim will also determine the ultimate issue of infringement. See supra note 263 and accompanying text.
344. See Beacon Theatres, Inc. v. Westover, 359 U.S. 501, 508-11 (1959).
345. See id. at 506-07.
346. Id. at 501 (quoting Dimick v. Schiedt, 293 U.S. 474, 486 (1935)).
347. See supra Part III.B.2.C.
348. The Court made clear in Granfinanciera that an action that involved a private, preexisting common law right could not be denied a jury trial right. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 54-55 (1989).
349. Id. at 42.
350. See U.S. CONST, art. I, § 8, cl. 8. This provision grants Congress the right "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Id.; see also 35 U.S.C. §§ 1-375 (1994 & Supp. III 1998).
351. Congress created the Federal Circuit in 1982 through the merger of the Court of Claims and the Court of Customs and Patent Appeals. See Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, §§ 127, 163, 1982 U.S.C.C.A.N. (96 Stat.) 25, 37, 49 (codified at 28 U.S.C. § 1295 (1994), and 35 U.S.C. § 141 (1994)); H.R. REP. No. 97-312, at 16-17 (1981). Patent appeals from all district court decisions are heard by the Federal Circuit. The Federal Circuit also has jurisdiction over appeals in a number of other areas, including trademark decisions of the Patent and Trademark Office, and final decisions of the Court of International Trade. See Rochelle Cooper Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N.Y.U. L. REV. 1, 4 (1989) (discussing the first five years of the Federal Circuit's operation, and whether it has achieved greater unity and coherence in patent law).
352. Congress created the Federal Circuit in 1982 through the merger of the Court of Claims and the Court of Customs and Patent Appeals. See Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, §§ 127, 163, 1982 U.S.C.C.A.N. (96 Stat.) 25, 37, 49 (codified at 28 U.S.C. § 1295 (1994), and 35 U.S.C. § 141 (1994)); H.R. REP. No. 97-312, at 16-17 (1981). Patent appeals from all district court decisions are heard by the Federal Circuit. The Federal Circuit also has jurisdiction over appeals in a number of other areas, including trademark decisions of the Patent and Trademark Office, and final decisions of the Court of International Trade. See Rochelle Cooper Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N.Y.U. L. REV. 1, 4 (1989) (discussing the first five years of the Federal Circuit's operation, and whether it has achieved greater unity and coherence in patent law).
353. See 35 U.S.C. § 31 (1994); 37 C.F.R. § 10.1-10.170 (1999).
354. The Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1994 & Supp. III 1998), is a federal statute which created a statutory duty to rid the workplace of unhealthy or unsafe working conditions. It permitted the federal government, proceeding before an administrative agency, to obtain abatement orders and impose civil penalties on any employer maintaining unsafe working conditions. In Atlas Roofing Co. v. Occupational Safety and Health Review Commission, 430 U.S. 442 (1977), the Supreme Court found the Seventh Amendment was not violated by the denial of a jury trial in these enforcement proceedings. Id. at 460-61.
355. Markman v. Westview Instruments, Inc., 52 F.3d 967, 989 (Fed. Cir. 1995) (Mayer, J., concurring) (quoting In re Lockwood, 50 F.3d 966, 983 (Fed. Cir. 1995) (Archer, C.J., Nies & Plager, JJ., dissenting), vacated sub nom. American Airlines, Inc. v. Lockwood, 515 U.S. 1182 (1995)), aff'd, 517 U.S. 370 (1996). Judge Mayer concurred in the judgment, but objected to the Federal Circuit's view that patent claims should be construed exclusively by the court. See id at 989-90.
356. See In re Lockwood, 50 F.3d at 980-81 (Archer, C.J., Nies & Plager, JJ., dissenting).
357. See id. at 968. Because Lockwood ultimately withdrew his demand for a jury trial, the Supreme Court's decision to vacate the Federal Circuit order was probably a result of finding the issue moot.
358. See id. 345 See id. at 968-69.
359. See id. at 972, 976, 980.
360. "This court has held that the issue of validity of a patent involves public rights, not merely private rights. '[T]he grant of a valid patent is primarily a public concern.'" Id. at 981 (Archer, C.J., Nies & Plager, J.J., dissenting) (quoting Patlex Corp. v. Mossinghoff, 758 F.2d 594, 604 (Fed. Cir. 1985)). It is not altogether clear, however, that a patent involves primarily a public right rather than a private one, because the rights granted in the patent are to a private patent holder. Nor is it clear that Congress could simply relabel a patent infringement action as one for a non-jury administrative adjudication without running afoul of the Seventh Amendment. In Granfinanciera the Court said, "Congress cannot eliminate a party's Seventh Amendment right to a jury trial merely by relabeling the cause of action to which it attaches and placing exclusive jurisdiction in an administrative agency or a specialized court of equity." Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 61 (1988). The question is whether Congress created "'a new cause of action, and remedies therefor, unknown to the common law,' because traditional rights and remedies were inadequate to cope with a manifest public problem." Id. (quoting Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442, 461 (1977)). While patent law has long been a creature of statute, the jury trial right in a patent case derives from common law and the guarantee of the Seventh Amendment. See Gregory D. Leibold, Comment, In Juries We Do Not Trust: Appellate Review of Patent-Infringement Litigation, 67 U. COLO. L. REV. 623, 628 (1996); Greg J. Michelson, Note, Did the Markman Court Ignore Fact, Substance, and the Spirit of the Constitution in its Rush Toward Uniformity?, 30 LOY. L.A. L. REV. 1707, 1714 (1997).
361. "This court has held that the issue of validity of a patent involves public rights, not merely private rights. '[T]he grant of a valid patent is primarily a public concern.'" Id. at 981 (Archer, C.J., Nies & Plager, J.J., dissenting) (quoting Patlex Corp. v. Mossinghoff, 758 F.2d 594, 604 (Fed. Cir. 1985)). It is not altogether clear, however, that a patent involves primarily a public right rather than a private one, because the rights granted in the patent are to a private patent holder. Nor is it clear that Congress could simply relabel a patent infringement action as one for a non-jury administrative adjudication without running afoul of the Seventh Amendment. In Granfinanciera the Court said, "Congress cannot eliminate a party's Seventh Amendment right to a jury trial merely by relabeling the cause of action to which it attaches and placing exclusive jurisdiction in an administrative agency or a specialized court of equity." Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 61 (1988). The question is whether Congress created "'a new cause of action, and remedies therefor, unknown to the common law,' because traditional rights and remedies were inadequate to cope with a manifest public problem." Id. (quoting Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442, 461 (1977)). While patent law has long been a creature of statute, the jury trial right in a patent case derives from common law and the guarantee of the Seventh Amendment. See Gregory D. Leibold, Comment, In Juries We Do Not Trust: Appellate Review of Patent-Infringement Litigation, 67 U. COLO. L. REV. 623, 628 (1996); Greg J. Michelson, Note, Did the Markman Court Ignore Fact, Substance, and the Spirit of the Constitution in its Rush Toward Uniformity?, 30 LOY. L.A. L. REV. 1707, 1714 (1997).
362. "This court has held that the issue of validity of a patent involves public rights, not merely private rights. '[T]he grant of a valid patent is primarily a public concern.'" Id. at 981 (Archer, C.J., Nies & Plager, J.J., dissenting) (quoting Patlex Corp. v. Mossinghoff, 758 F.2d 594, 604 (Fed. Cir. 1985)). It is not altogether clear, however, that a patent involves primarily a public right rather than a private one, because the rights granted in the patent are to a private patent holder. Nor is it clear that Congress could simply relabel a patent infringement action as one for a non-jury administrative adjudication without running afoul of the Seventh Amendment. In Granfinanciera the Court said, "Congress cannot eliminate a party's Seventh Amendment right to a jury trial merely by relabeling the cause of action to which it attaches and placing exclusive jurisdiction in an administrative agency or a specialized court of equity." Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 61 (1988). The question is whether Congress created "'a new cause of action, and remedies therefor, unknown to the common law,' because traditional rights and remedies were inadequate to cope with a manifest public problem." Id. (quoting Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442, 461 (1977)). While patent law has long been a creature of statute, the jury trial right in a patent case derives from common law and the guarantee of the Seventh Amendment. See Gregory D. Leibold, Comment, In Juries We Do Not Trust: Appellate Review of Patent-Infringement Litigation, 67 U. COLO. L. REV. 623, 628 (1996); Greg J. Michelson, Note, Did the Markman Court Ignore Fact, Substance, and the Spirit of the Constitution in its Rush Toward Uniformity?, 30 LOY. L.A. L. REV. 1707, 1714 (1997).
363. In re Lockwood, 50 F.3d at 983 (Archer, C.J., Nies & Plager, JJ., dissenting). In addition, in a foreshadowing of the Markman decision, Judge Nies declared that when an issue is an issue of law, the underlying factual issues should be decided by the court. See id. at 987-89 (Archer, C.J., Nies &
364. Id. (Archer, C.J., Nies & Plager, JJ., dissenting).
365. Leibold suggests that in light of the tremendous power entrusted to a trial judge since Markman, specialized Article I courts for patent infringement cases might be a good idea. "[I]t would be wise to follow the lead of the bankruptcy courts and ensure that a trial judge who is well versed in the law and subject matter of patents conducts the trial." Leibold, supra note 347, at 648. Leibold suggests that an even more effective solution, however, would be for Congress to override the Supreme Court's decision in Markman, and then authorize the use of "special juries" of highly educated individuals to decide factual issues in patent cases. See id. at 648-49.
366. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 390-91 (1996); see also Dreyfuss, supra note 338, at 7 ("According to proponents of the legislation, channeling patent cases into a single appellate forum would create a stable, uniform law and would eliminate forum shopping.").
367. See Official Transcript of the Supreme Court of the United States at 33, Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) (No. 95-26).
368. Markman, 517 U.S. at 390.
369. Id. (quoting General Elec. Co. v. Wabash Appliance Corp., 304 U.S. 364, 369 (1938)).
370. Id. (quoting United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 236 (1942)).
371. Id. (quoting Merrill v. Yeomans, 94 U.S. 568, 573 (1877)).
372. See Thomas K. Landry, Certainty and Discretion in Patent Law: The On Sale Bar, the Doctrine of Equivalents, and Judicial Power in the Federal Circuit, 67 S. CAL. L. REV. 1151, 1153 n.8 (1994).
373. In Cardinal Chemical Co. v. Morton International, Inc., 508 U.S. 83, 105 (1993), Justices Scalia and Souter made known their preference for deferring to the Federal Circuit's expertise. They declined to join in a part of the majority opinion which concerned "practicalities of the Federal Circuit's specialized patent jurisdiction," preferring instead to accept the views of "the experienced judges on the Federal Circuit." Id. at 105 (Scalia & Souter, JJ., concurring).
374. See Landry, supra note 357, at 1204.
375. See David Silverstein, Patents, Science and Innovation: Historical Linkages and Implications for Global Technological Competitiveness, 17 RUTGERS COMPUTER & TECH. L.J. 261, 310 (1991) ("An overburdened Supreme Court, routinely refusing to review patent cases, made it inevitable that the [Federal Circuit] would wield far more power than many supporters of this change had anticipated. For all practical purposes, the [Federal Circuit] has become the 'court of last resort' in patent cases, and its holdings the 'law of the land.'").
376. See Landry, supra note 357, at 1208-10.
377. There has been a substantial increase in the number of jury trials in patent cases. See Allan N. Littman, The Jury's Role in Determining Key Issues in Patent Cases: Markman, Hilton Davis, and Beyond, 37 IDEA 207, 209 (1997) (noting that juries were used in about 21% of patent cases in 1981, increasing to 70% of patent cases by 1994 (citing ADMINISTRATIVE OFFICE OF THE U.S. COURTS, REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES Al-79 tbl.C-4 (1994) (finding juries used in 71% of patent cases in 1994))). This trend is expected to be reversed after Markman. Predictions have been made that Markman may cause '""[a]s many as 90 percent of [patent] cases [to] be decided on a motion for summary judgment.'"" Steve D. Glazer & Steven J. Rizzi, Markman: The Supreme Court Takes Aim at Patent Juries, J. PROPRIETARY RTS., May 1996, at 5 n.2 (quoting Victoria Slind-Flor, Ruling Boosts Judges' Role in Patents, NAT'L L.J., May 6,1996, at B1 (quoting Jack C. Goldstein, former head of the American Bar Association's intellectual property law section)).
378. There has been a substantial increase in the number of jury trials in patent cases. See Allan N. Littman, The Jury's Role in Determining Key Issues in Patent Cases: Markman, Hilton Davis, and Beyond, 37 IDEA 207, 209 (1997) (noting that juries were used in about 21% of patent cases in 1981, increasing to 70% of patent cases by 1994 (citing ADMINISTRATIVE OFFICE OF THE U.S. COURTS, REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES Al-79 tbl.C-4 (1994) (finding juries used in 71% of patent cases in 1994))). This trend is expected to be reversed after Markman. Predictions have been made that Markman may cause '""[a]s many as 90 percent of [patent] cases [to] be decided on a motion for summary judgment.'"" Steve D. Glazer & Steven J. Rizzi, Markman: The Supreme Court Takes Aim at Patent Juries, J. PROPRIETARY RTS., May 1996, at 5 n.2 (quoting Victoria Slind-Flor, Ruling Boosts Judges' Role in Patents, NAT'L L.J., May 6,1996, at B1 (quoting Jack C. Goldstein, former head of the American Bar Association's intellectual property law section)).
379. There has been a substantial increase in the number of jury trials in patent cases. See Allan N. Littman, The Jury's Role in Determining Key Issues in Patent Cases: Markman, Hilton Davis, and Beyond, 37 IDEA 207, 209 (1997) (noting that juries were used in about 21% of patent cases in 1981, increasing to 70% of patent cases by 1994 (citing ADMINISTRATIVE OFFICE OF THE U.S. COURTS, REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES Al-79 tbl.C-4 (1994) (finding juries used in 71% of patent cases in 1994))). This trend is expected to be reversed after Markman. Predictions have been made that Markman may cause '""[a]s many as 90 percent of [patent] cases [to] be decided on a motion for summary judgment.'"" Steve D. Glazer & Steven J. Rizzi, Markman: The Supreme Court Takes Aim at Patent Juries, J. PROPRIETARY RTS., May 1996, at 5 n.2 (quoting Victoria Slind-Flor, Ruling Boosts Judges' Role in Patents, NAT'L L.J., May 6,1996, at B1 (quoting Jack C. Goldstein, former head of the American Bar Association's intellectual property law section)).
380. There has been a substantial increase in the number of jury trials in patent cases. See Allan N. Littman, The Jury's Role in Determining Key Issues in Patent Cases: Markman, Hilton Davis, and Beyond, 37 IDEA 207, 209 (1997) (noting that juries were used in about 21% of patent cases in 1981, increasing to 70% of patent cases by 1994 (citing ADMINISTRATIVE OFFICE OF THE U.S. COURTS, REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES Al-79 tbl.C-4 (1994) (finding juries used in 71% of patent cases in 1994))). This trend is expected to be reversed after Markman. Predictions have been made that Markman may cause '""[a]s many as 90 percent of [patent] cases [to] be decided on a motion for summary judgment.'"" Steve D. Glazer & Steven J. Rizzi, Markman: The Supreme Court Takes Aim at Patent Juries, J. PROPRIETARY RTS., May 1996, at 5 n.2 (quoting Victoria Slind-Flor, Ruling Boosts Judges' Role in Patents, NAT'L L.J., May 6,1996, at B1 (quoting Jack C. Goldstein, former head of the American Bar Association's intellectual property law section)).
381. There has been a substantial increase in the number of jury trials in patent cases. See Allan N. Littman, The Jury's Role in Determining Key Issues in Patent Cases: Markman, Hilton Davis, and Beyond, 37 IDEA 207, 209 (1997) (noting that juries were used in about 21% of patent cases in 1981, increasing to 70% of patent cases by 1994 (citing ADMINISTRATIVE OFFICE OF THE U.S. COURTS, REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES Al-79 tbl.C-4 (1994) (finding juries used in 71% of patent cases in 1994))). This trend is expected to be reversed after Markman. Predictions have been made that Markman may cause '""[a]s many as 90 percent of [patent] cases [to] be decided on a motion for summary judgment.'"" Steve D. Glazer & Steven J. Rizzi, Markman: The Supreme Court Takes Aim at Patent Juries, J. PROPRIETARY RTS., May 1996, at 5 n.2 (quoting Victoria Slind-Flor, Ruling Boosts Judges' Role in Patents, NAT'L L.J., May 6,1996, at B1 (quoting Jack C. Goldstein, former head of the American Bar Association's intellectual property law section)).
382. Landry, supra note 357, at 1211.
383. The standard of review for a jury verdict is whether it is supported by substantial evidence, and for a trial judge, whether the findings are clearly erroneous. See infra note 402 and accompanying text.
384. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996).
385. See id. at 974.
386. Markman v. Westview Instruments, Inc., 772 F. Supp. 1535, 1536 (E.D. Pa. 1991), aff'd, 52 F.3d at 989, aff'd, 517 U.S. at 391.
387. See id.
388. See Markman, 52 F.3d at 998 (Rader, J., concurring).
389. See id. (Rader, J., concurring).
390. Id. (Rader, J., concurring).
391. See id. at 970-71.
392. Id. at 979 (emphasis added).
393. Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996).
394. Curiously, although the Supreme Court was entirely deferential to the Federal Circuit by giving it exactly the result it sought, the Court was not deferential to the reasoning of the Federal Circuit. The Supreme Court did not mention the Federal Circuit's analogy of a patent to a statute, or the second line of authority of cases which the Federal Circuit claimed supported its position.
395. See Markman, 517 U.S. at 387-90.
396. The Supreme Court, however, does not appear to believe that juries have no role in patent litigation. See infra notes 421-431 and accompanying text.
397. See Markman, 517 U.S. at 384. "[E]vidence of common-law practice at the time of the framing does not entail application of the Seventh Amendment's jury guarantee to the construction of the claim document . . . ." Id.
398. Id. 380 Id.
399. Commentators have taken different views. Michelson says the policy arguments were simply used to support the Federal Circuit's holding that claim construction is a matter of law. See Michelson, supra note 347, at 1763. The author of an unsigned Harvard Law Review Note seemed to believe Markman's discussion of functional considerations was part of the Seventh Amendment analysis, but stated, "[u]nder one possible reading, the Court simply ended its Seventh Amendment analysis in Part II of the opinion, finding the constitutional guarantee to be inapplicable." The Supreme Court 1995 Term-Leading Case, 110 HARV. L. REV. 135, 276 n.81 (1996) (citations omitted).
400. "[O]ur conclusion [is] that the Seventh Amendment does not require terms of art in patent claims to be submitted to the jury . . . ." Markman, 517 U.S. at 384 n.9.
401. "Since evidence of common-law practice at the time of the framing does not entail application of the Seventh Amendment's jury guarantee to the construction of the claim document, we must look elsewhere to characterize this determination of meaning in order to allocate it as between court or jury." Id. at 384.
402. See id.
403. See id. at 384-91.
404. Id. at 384 n.10.
405. Id. at 388.
406. Id.
407. Id. at 388, 389 (quoting William Redin Woodward, Definiteness and Particularity in Patent Claims, 46 MICH. L. REV. 755, 765 (1948)). There is empirical evidence which does not support the Court's assumption that the jury is an inferior fact finder to the judge in scientific matters. See Michael S. Jacobs, Testing the Assumptions Underlying the Debate About Scientific Evidence: A Closer Look at Juror "Incompetence" and Scientific "Objectivity," 25 CONN. L. REV. 1083, 1094-98 (1993) (stating that empirical evidence does not support the view of juror incompetence, rather, increasingly, evidence indicates jurors competently decide complex issues); Kenneth R. Kreiling, Scientific Evidence: Toward Providing the Lay Trier with the Comprehensible and Reliable Evidence Necessary to Meet the Goals of the Rules of Evidence, 32 ARIZ. L. REV. 915, 930-35 (1990) (citing a number of studies that give jurors credit for good recall, comprehension, evaluation of expert testimony, and application of law to facts).
408. Id. at 388, 389 (quoting William Redin Woodward, Definiteness and Particularity in Patent Claims, 46 MICH. L. REV. 755, 765 (1948)). There is empirical evidence which does not support the Court's assumption that the jury is an inferior fact finder to the judge in scientific matters. See Michael S. Jacobs, Testing the Assumptions Underlying the Debate About Scientific Evidence: A Closer Look at Juror "Incompetence" and Scientific "Objectivity," 25 CONN. L. REV. 1083, 1094-98 (1993) (stating that empirical evidence does not support the view of juror incompetence, rather, increasingly, evidence indicates jurors competently decide complex issues); Kenneth R. Kreiling, Scientific Evidence: Toward Providing the Lay Trier with the Comprehensible and Reliable Evidence Necessary to Meet the Goals of the Rules of Evidence, 32 ARIZ. L. REV. 915, 930-35 (1990) (citing a number of studies that give jurors credit for good recall, comprehension, evaluation of expert testimony, and application of law to facts).
409. Id. at 388, 389 (quoting William Redin Woodward, Definiteness and Particularity in Patent Claims, 46 MICH. L. REV. 755, 765 (1948)). There is empirical evidence which does not support the Court's assumption that the jury is an inferior fact finder to the judge in scientific matters. See Michael S. Jacobs, Testing the Assumptions Underlying the Debate About Scientific Evidence: A Closer Look at Juror "Incompetence" and Scientific "Objectivity," 25 CONN. L. REV. 1083, 1094-98 (1993) (stating that empirical evidence does not support the view of juror incompetence, rather, increasingly, evidence indicates jurors competently decide complex issues); Kenneth R. Kreiling, Scientific Evidence: Toward Providing the Lay Trier with the Comprehensible and Reliable Evidence Necessary to Meet the Goals of the Rules of Evidence, 32 ARIZ. L. REV. 915, 930-35 (1990) (citing a number of studies that give jurors credit for good recall, comprehension, evaluation of expert testimony, and application of law to facts).
410. Thomas Jefferson described the jury as "the only anchor ever yet imagined . . . by which a government can be held to the principles of its constitution." Letter from Thomas Jefferson to Thomas Paine (July 11, 1789), in MARTIN A. LARSON, JEFFERSON: MAGNIFICENT POPULIST 134 (1981); see also Wolfram, supra note 12, at 644 ("[I]t seems clear that one of the purposes of the right of jury trial in civil cases is to place limitations upon judges."). Wolfram also concluded, it is clear that the amendment was meant by its proponents to do more than protect an occasional civil litigant against an oppressive and corrupt federal judge-although it certainly was to perform this function as well. . . . The effort was quite clearly to require juries to sit in civil cases as a check on what the popular mind might regard as legislative as well as judicial excesses. Wolfram, supra note 12, at 653.
411. In discussing the functional argument, Justice Souter cited Miller v. Fenton, 474 U.S. 104 (1985), for the proposition that when an issue " 'falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.'" Markman, 517 U.S. at 388 (quoting Miller, 474 U.S. at 114). The reference to the fact/law distinction made in Miller seems inappropriate in Markman. First, Miller was a criminal case, dealing with a writ of habeas corpus to review the question of voluntariness of a confession and whether the confession met the due process standards of the Fourteenth Amendment. See Miller, 474 U.S. at 105-08. There was no issue of allocation between judge and jury, but rather a question of standard of review by the appellate court of the trial court's findings. See id. at 109. The "judicial actors" referred to were the appellate court and the trial court. See id. at 114. The Court determined that the standard was one of independent review for legal questions rather than "presumed correctness" for factual findings. See id. at 115.
412. Ross v. Bernhard, 396 U.S. 531, 538 n.10 (1970).
413. See Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442, 454 (1977); Pernell v. Southall Realty, 416 U.S. 363, 383 (1974).
414. Tull v. United States, 481 U.S. 412, 418 n.4 (1987) (citing Atlas Roofing, 430 U.S. at 454).
415. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 n.4 (1989).
416. See Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 565 n.4 (1990) ("We recently noted that this [functional] consideration is relevant only to the determination 'whether Congress has permissibly entrusted the resolution of certain disputes to an administrative agency or specialized court of equity, and whether jury trials would impair the functioning of the legislative scheme.'" (quoting Granfinanciera, 492 U.S. at 42 n.4)).
417. It would be ironic if Markman was determined to have created a complexity exception to the Seventh Amendment. While undoubtedly some patent decisions involve complex issues, the Markman question of what "inventory" means is not complex.
418. Markman v. Westview Instruments, Inc., 517 U.S. 370, 390 (1996) (quoting H.R. REP. No. 97-312, at 20 (1981)).
419. A number of commentators are not persuaded that the Markman decision will increase uniformity. See Kevin W. King, Note, Markman v. Westview Instruments, Inc.: The Jury's Diminishing Role in Patent Law Cases, 13 GA. ST. U. L. REV. 1127, 1150 (1997) (stating that different district courts may reach contrary conclusions when construing a single patent in separate infringement lawsuits, and "[different panels of the Federal Circuit may disagree, creating an intracircuit conflict which may or may not be resolved en banc or by the Supreme Court"); Leibold, supra note 347, at 644 ("Except where the same precise issue arises in subsequent litigation against another infringer, . . . piecemeal, 'define-as-you-go' construction leaves patentees in essentially the same position" as when juries decided claim construction); Michelson, supra note 347, at 1735 (stating that because other issues are still decided by the jury, claim construction by a judge will not necessarily produce uniformity).
420. This is supported by the last sentence of footnote 9 in Part II of Markman, in which the Court states unequivocally, before even considering the issues raised in Part III, "that the Seventh Amendment does not require terms of art in patent claims to be submitted to the jury." Markman, 517 U.S. at 384 n.9.
421. Id. at 372 (emphasis added). The Court made clear it was "treating interpretive issues as purely legal." Id. at 391.
422. Markman v. Westview Instruments, Inc., 52 F.3d 967, 991 (Fed. Cir. 1995) (Mayer, J., concurring), aff'd, 517 U.S. at 391.
423. In discussing the functional argument, Justice Souter quoted Miller v. Fenton for the proposition that when an issue "'falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.'" Markman, 517 U.S. at 388 (quoting Miller v. Fenton, 474 U.S. 104, 114 (1985)). However, Justice Souter did not cite one of the examples given by the Miller Court as to when an appellate court should treat a trial court's finding as fact rather than law: other considerations often suggest the appropriateness of resolving close questions concerning the status of an issue as one of "law" or "fact" in favor of extending deference to the trial court. When, for example, the issue involves the credibility of witnesses and therefore turns largely on an evaluation of demeanor, there are compelling and familiar justifications for leaving the process of applying law to fact to the trial court [as trier of fact] and according its determinations presumptive weight. Miller, 474 U.S. at 114.
424. Markman, 517 U.S. at 389. Of course, credibility determinations are not the only factual issues which now have to be determined by the court. Judge Newman outlined five major areas in which disputed factual issues are likely to arise in connection with construing a patent claim: (1) the specification ("[t]he . . . specification contains the description of the invention, including the claims"); (2) the prior art (prior art is "what was known to persons in the field of invention at the time the invention was made"); (3) the prosecution history (the public record in the PTO of "what transpired during examination of the patent application"); (4) technologic/ scientific facts (questions of patent infringement may turn on findings of technologic or scientific facts); and (5) the testimony of experts. Markman, 52 F.3d at 1002-05 (Newman, J., dissenting). Judge Newman also expressed concern as to how the Federal Circuit was to find technological facts: Are we to read the entire record of the trial, re-create the demonstrations, decipher the literature of the science and art; are we to seek our own expert advice; must the parties be told the technical training of our law clerks and staff attorneys? No amicus explained how improved technological correctness - that is, truth - would be more likely to be achieved during the appellate process of page-limited briefs and fifteen minutes per side of argument. Id. at 1021 n.11 (Newman, J., dissenting).
425. At oral argument in Markman, the Court asked counsel for Westview how often conflicting expert testimony was presented in a patent case on the meaning of the patent. Counsel responded that conflicting expert testimony is presented "in virtually every case." Official Transcript of the Supreme Court of the United States at 33, Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) (No. 95-26).
426. See Markman, 517 U.S. at 380.
427. See id. at 384.
428. See id. at 388-91.
429. At oral argument in the Markman case, one of the Justices noted that, "[a] patent infringement is an action at law. And then you're going to take the issues one by one and take them away from the jury, and pretty soon you'll have nothing triable to a jury." Official Transcript of the Supreme Court of the United States at 45, Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) (No. 95-26).
430. See Leibold, supra note 347, at 671 (arguing that "the Supreme Court appropriated the most important question in a patent-infringement suit for judges by recharacterizing claim construction as a matter of law, subject to de novo review," making the Markman decision "constitutionally troubling"); Michelson, supra note 347, at 1735 (stating that the "right to a jury trial . . . should not [be diminished] . . . because the court believes itself better suited to find technological facts"); Louis S. Silvestri, Note, A Statutory Solution to the Mischiefs of Markman v. Westview Instruments, Inc., 63 BROOK. L. REV. 279, 316 (1997) (stating that the Supreme Court in Markman "wrongfully eliminated] the well-established, denned differences between trial judge and jury"); The Supreme Court 1995 Term - Leading Case, supra note 381, at 272-73 (stating that the Supreme Court in Markman, although reaching sound result, used flawed analysis).
431. See Leibold, supra note 347, at 671 (arguing that "the Supreme Court appropriated the most important question in a patent-infringement suit for judges by recharacterizing claim construction as a matter of law, subject to de novo review," making the Markman decision "constitutionally troubling"); Michelson, supra note 347, at 1735 (stating that the "right to a jury trial . . . should not [be diminished] . . . because the court believes itself better suited to find technological facts"); Louis S. Silvestri, Note, A Statutory Solution to the Mischiefs of Markman v. Westview Instruments, Inc., 63 BROOK. L. REV. 279, 316 (1997) (stating that the Supreme Court in Markman "wrongfully eliminated] the well-established, denned differences between trial judge and jury"); The Supreme Court 1995 Term - Leading Case, supra note 381, at 272-73 (stating that the Supreme Court in Markman, although reaching sound result, used flawed analysis).
432. See Leibold, supra note 347, at 671 (arguing that "the Supreme Court appropriated the most important question in a patent-infringement suit for judges by recharacterizing claim construction as a matter of law, subject to de novo review," making the Markman decision "constitutionally troubling"); Michelson, supra note 347, at 1735 (stating that the "right to a jury trial . . . should not [be diminished] . . . because the court believes itself better suited to find technological facts"); Louis S. Silvestri, Note, A Statutory Solution to the Mischiefs of Markman v. Westview Instruments, Inc., 63 BROOK. L. REV. 279, 316 (1997) (stating that the Supreme Court in Markman "wrongfully eliminated] the well-established, denned differences between trial judge and jury"); The Supreme Court 1995 Term - Leading Case, supra note 381, at 272-73 (stating that the Supreme Court in Markman, although reaching sound result, used flawed analysis).
433. See, e.g., Joseph A. Miron, Jr., Note, The Constitutionality of a Complexity Exception to the Seventh Amendment, 73 CHI.-KENT L. REV. 865, 866 (1998).
434. Markman, 517 U.S. at 383-84 n.9.
435. id. at 384 n.10 (citations omitted).
436. See Galloway v. United States, 319 U.S. 372, 390-91 (1943), where the Court stated: The Amendment did not bind the federal courts to the exact procedural incidents or details of jury trial according to the common law in 1791, any more than it tied them to the common-law system of pleading or the specific rules of evidence then prevailing. Nor were "the rules of the common law" then prevalent, including those relating to the procedure by which the judge regulated the jury's role on questions of fact, crystallized in a fixed and immutable system. On the contrary, they were constantly changing and developing during the late eighteenth and early nineteenth centuries. Id. (footnotes omitted).
437. The Seventh Amendment requires "that questions of fact in common law actions shall be settled by a jury, and that the court shall not assume directly or indirectly to take from the jury or to itself such prerogative." Walker v. New Mexico & S. Pac. R.R. Co., 165 U.S. 593, 596 (1897). Even within the fourth strand of Seventh Amendment jurisprudence, deference to a congressional statutory scheme, there are limitations on simply relabeling an issue of fact as one of law. "Congress cannot eliminate a party's Seventh Amendment right to a jury trial merely by relabeling the cause of action to which it attaches and placing exclusive jurisdiction in an administrative agency or a specialized court of equity." Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 61 (1989).
438. "Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care." Dimick v. Schiedt, 293 U.S. 474, 486 (1935).
439. See supra notes 181-195 and accompanying text.
440. See supra notes 228, 249 and accompanying text.
441. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337 (1979) (Rehnquist, J., dissenting) (dissenting from majority holding that use of offensive collateral estoppel did not violate petitioners' Seventh Amendment right to a jury trial); Colgrove v. Battin, 413 U.S. 149, 166 (1973) (Marshall & Stewart, JJ., dissenting) (rejecting majority view upholding six person jury in civil case); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 511 (1959) (Harlan, Whittaker, and Stewart, JJ., dissenting) (protesting Court's holding that Seventh Amendment required jury trial for legal rights tried with equitable rights); Galloway, 319 U.S. at 396 (Black, Douglas, and Murphy, JJ., dissenting) (objecting to majority's sanctioning the expanded use of directed verdicts).
442. A fourth case, Hetzel v. Prince William County, 523 U.S. 208 (1998) (per curiam), was decided per curiam under the Re-Examination Clause of the Seventh Amendment. The Court reversed a decision of the U.S. Court of Appeals for the Fourth Circuit to reduce a damage award without granting plaintiff a new trial. The Hetzel decision was consistent with the Court's traditional view of remittitur.
443. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 21 (1997).
444. Id.
445. See id.
446. See id. at 22.
447. See id. at 23.
448. 35 U.S.C. §§ 1-357 (1994 & Supp. III 1998).
449. See Warner-Jenkinson Co., 520 U.S. at 25-29.
450. Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 1520 (Fed. Cir. 1995) (en banc) (per curiam), rev'd, 520 U.S. at 41.
451. See Warner-Jenkinson, 520 U.S. at 38-39.
452. Id. at 38.
453. See id. at 39.
454. See Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 342 (1998). Section 504(c) of the Copyright Act of 1976, 17 U.S.C. §§101-1101 (1994 & Supp. IV 1999), provides that a copyright owner can recover "instead of actual damages . . . , an award of statutory damages ... in a sum of not less than $500 or more than $20,000 as the court considers just." 17 U.S.C. § 504(c)(1).
455. See Feltner, 523 U.S. at 342.
456. See id. at 342-43.
457. 17 U.S.C. §§ 101-1101.
458. See Feltner, 523 U.S. at 343.
459. See id. at 344.
460. See id.
461. Id. at 345 (quoting Columbia Pictures Television v. Krypton Broad., 106 F.3d 284, 293 (9th Cir. 1997), rev'd sub nom. Feltner v. Columbia Pictures Television, Inc., 523 U.S. at 355.
462. Id. (quoting 17 U.S.C. § 504(c)(1)).
463. Id. at 348.
464. Id. at 348-49.
465. Id. at 352.
466. See id.
467. See supra notes 159-165 and accompanying text.
468. Feltner, 523 U.S. at 353 (quoting Dimick v. Schiedt, 293 U.S. 474, 486 (1935)).
469. See City of Monterey v. Del Monte Dunes, 119 S. Ct. 1624 (1999). The Court was unanimous as to Parts I and II of Justice Kennedy's opinion, but Justices O'Connor, Souter, Ginsburg, and Breyer dissented from Parts III and IV, and Justice Scalia, who concurred generally, did not join in Part IV-A-2.
470. See id. at 1631; see also 42 U.S.C. § 1983 (1994 & Supp. III 1998).
471. Del Monte Dunes, 119 S. Ct. at 1631.
472. See id.
473. See id. at 1632.
474. Id. at 1633.
475. See id. The Fifth Amendment provides that private property shall not be taken for public use without just compensation. See U.S. CONST. amend. V. The Takings Clause of the Fifth Amendment has been applied to the states as part of the meaning of the Due Process Clause of the Fourteenth Amendment. See id. amend. XIV, § 1. Therefore an uncompensated takings claim is brought under the Fourteenth Amendment Due Process Clause.
476. See Del Monte Dunes, 119 S. Ct. at 1633.
477. See id. at 1634.
478. See id.
479. See id.
480. See id.
481. Id. at 1635. The other two questions were "(2) whether the Court of Appeals impermissibly based its decision on a standard that allowed the jury to reweigh the reasonableness of the city's land-use decision, and (3) whether the Court of Appeals erred in assuming that the rough-proportionality standard . . . applied to this case." Id.
482. id. at 1638.
483. See id.
484. See id. at 1638-39.
485. Id. at 1639.
486. See id.
487. See id. The Court noted that the U.S. Court of Appeals for the Eleventh Circuit had found there was no right to a jury trial on a takings claim brought under section 1983. See id. (citing New Port Largo, Inc. v. Monroe County, 95 F.3d 1084, 1091 (11th Cir. 1996)).
488. See id. at 1639-40.
489. See id. at 1638-39.
490. Id. at 1640 (quoting United States v. Clarke, 445 U.S. 253, 257 (1980)).
491. See id. at 1641.
492. Id.
493. See id.
494. See id. at 1645 (Scalia, J., concurring).
495. Id. (Scalia, J., concurring).
496. See id. at 1650 (O'Connor, Souter, Ginsburg, and Breyer, JJ., dissenting).
497. See id. at 1650-51 (O'Connor, Souter, Ginsburg, and Breyer, JJ., dissenting).
498. See id. at 1650-52 (O'Connor, Souter, Ginsburg, and Breyer, JJ., dissenting).
499. See id. at 1655 (O'Connor, Souter, Ginsburg, and Breyer, JJ., dissenting).
500. id. at 1657 (O'Connor, Souter, Ginsburg, and Breyer, JJ., dissenting).
501. See id. at 1637-38.
502. Id. at 1638 (citations and internal quotation marks omitted) (quoting Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996)).
503. Id.
504. See id.
505. Markman, 517 U.S. at 376.
506. Del Monte Dunes, 119 S. Ct. at 1642 (citing to the entire Markman decision generally).
507. Id. (quoting Markman, 517 U.S. at 377).
508. See id. at 1643.
509. Id.
510. Id.
511. See id.
512. Id. at 1643-44.
513. Id. (quoting Markman v. Westview Instruments, Inc., 517 U.S. 370, 377 (1996)).
514. Id. at 1644 (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992) (quoting Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978))).
515. See id.
516. Id.
517. Id.
518. See id.
519. Id.
520. Id. (quoting Del Monte Dunes v. City of Monterey, 95 F.3d 1422, 1430 (9th Cir. 1996), aff'd, 119 S. Ct. at 1645).
521. Id. at 1643 (citing Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935)).
522. See supra notes 388-397 and accompanying text.
523. See Del Monte Dunes, 119 S. Ct. at 1643.
524. Markman v. Westview Instruments, Inc., 517 U.S. 370, 384 n.9 (1996).
525. It is not surprising that Justice Souter, the author of both the Markman decision and the Del Monte Dunes dissent, continued to assert that functional considerations regarding whether judge or jury is better suited to make a decision, should be used and should weigh in favor of the judge. Asserting that a takings case was essentially an issue for the court, Justice Souter stated: "Scrutinizing the legal basis for governmental action is 'one of those things that judges often do and are likely to do better than juries unburdened by training in exegesis.'" Del Monte Dunes, 119 S. Ct. at 1660 (O'Connor, Souter, Ginsburg, and Breyer, JJ., dissenting) (quoting Markman, 517 U.S. at 388).
526. Id. at 1649 (citations omitted).