Suja Thomas (Illinois) has some interesting thoughts at Volokh Conspiracy on a recent decision in Puerto Rico. Excerpts:
Should juries decide civil cases in state, commonwealth, and territory courts? According to a federal judge in the Gonzalez-Oyarzun v. Carribean City Builders case, the answer is yes.
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Following McDonald, this summer, a judge in the federal district court of Puerto Rico [in the Gonzalez-Oyarsun case] found that the Seventh Amendment applies to the states. In the case, the plaintiff sued for age discrimination and retaliation in the federal court. The defendant moved to dismiss on several grounds including that a termination agreement required the plaintiff to bring the case in a Puerto Rico court. The plaintiff argued that this forum selection clause was invalid, because Puerto Rico does not permit jury trials in civil cases (whereas jury trials are available in the federal courts), which violated his Seventh Amendment right. While the court held that the clause was valid, it cited my article Nonincorporation and adopted its reasoning that the civil jury right was a fundamental right. Thus, according to the judge, the Seventh Amendment applied to the states.
That seems likely correct as a matter of original meaning. As Professor Thomas outlines:
I have written that significant evidence from England at the time of the adoption of the Constitution, at the time of the founding of the Constitution, and at the ratification of the Fourteenth Amendment showed a civil jury was a fundamental right, and as a result, the Seventh Amendment should apply against the states. For example, Blackstone wrote that “[i]n magna carta [trial by jury] is more than once insisted on as the principal of our liberties; but especially . . . that no freeman shall be hurt in either his person or property” without trial by jury. And the founders quoted Blackstone on the general importance of the jury to protect property, liberty, and life. Moreover, evidence that the civil jury right was fundamental includes that many states had the civil jury right at the time of the founding and at the time of the ratification of the Fourteenth Amendment.
Posted at 6:53 AM