Is Ashcroft v. Iqbal the Death (Finally) of the 'Historical Test' for Interpreting the Seventh Amendment?

23 Pages Posted: 24 Sep 2010

Date Written: Fall 2010

Abstract

The Seventh Amendment provides that “[i]n suits at common law... the right of trial by jury shall be preserved.” To this day, the way we apply the Seventh Amendment - in other words, what we interpret to be the constitutional intent and mandate of our Founders - is to postulate hypothetically that a contemporary federal civil case, filed in federal district court under current-day statutes and laws, instead had been filed in England in 1792, and to ask whether then it would have been filed in the common law courts or in the equity courts. Time and jurisprudential evolution have exposed this approach - known as the “historical test” - as flawed from the inception. Nonetheless, largely through judicial inertia, the historical test has survived. Indeed, in the roughly 200 years since the historical test emerged, no occasion has been sufficient to cause the courts to consider whether the test is jurisprudentially supportable.

The historical test may well not survive Ashcroft v. Iqbal. On its face, Iqbal has nothing to do with the Seventh Amendment. Rather, the opinion addresses pleading standards under Federal Rule of Civil Procedure 8, and empowers a federal district court in the vast majority of civil cases to dismiss a lawsuit pre-answer on the basis that the allegations, while facially sufficient, are conclusory and implausible. As a result, the Court all but directs district trial judges to weigh the factual heft of a complaint early, and to toss unworthy cases out of court.

The opinion empowers judges to invade the constitutionally protected province of the jury. While the Court does not yet seem to see the Seventh Amendment problem with Iqbal, eventually it will. It is unlikely that the Court will be able to give due deference simultaneously to the history and intent of the Seventh Amendment, and yet constitutionally empower district courts to weigh evidence at the pleadings stage of civil litigation. Nonetheless, the attempt should be the necessary impetus to exposing the historical test as the flawed jurisprudence it long has been. This Article proposes an alternative and preferred understanding of the Seventh Amendment.

Keywords: jury, seventh amendment, iqbal

JEL Classification: K41

Suggested Citation

Klein, Kenneth S., Is Ashcroft v. Iqbal the Death (Finally) of the 'Historical Test' for Interpreting the Seventh Amendment? (Fall 2010). Nebraska Law Review, Vol. 88, p. 467, No. 3, 2010, Available at SSRN: https://ssrn.com/abstract=1681583

Kenneth S. Klein (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States
619-515-1535 (Phone)

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
54
Abstract Views
418
Rank
675,887
PlumX Metrics