The Re-examination Clause

In Suits at common law . . . 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.

—Renée Lettow Lerner

Introduction

The Seventh Amendment has two components. The Civil Jury Trial Clause, also known as the Preservation Clause, preserves the right to a civil jury “in Suits at common law.” (See Essay No. 182.) The Re-examination Clause limits the ability of courts to “re-examine” facts tried by a jury. The latter provision is less well-known, but Justice Joseph Story thought it “still more important” than the former. Story observed that “we read [the Re-examination Clause] as a substantial and independent clause.”¹

History Before 1787

A system of jury trial resists thorough appeals. Unlike judges, lay persons who sit on juries do not provide detailed reasons for their decisions. It is difficult for a court to review a decision without reasons. Moreover, use of juries spared English common-law judges from having to decide facts themselves. Judges prized this insulation from deciding facts.² Therefore, English judges developed only limited means of reviewing jury verdicts.

None of the methods for reviewing civil jury verdicts was called an appeal. In England, through the late eighteenth century and beyond, appeals existed only in equity, not at common law. For the most part, common-law courts would review a civil jury verdict after the verdict was given but before judgment was entered. One of these methods was addressed to the trial judge, and three were addressed to the full court sitting en banc.³ There were three distinct English common-law courts: King’s Bench, Common Pleas, and Exchequer. Each had about three to four judges. At common law, all trials were before juries. Only one judge presided over each trial,⁴ but judgment could be entered only by the full court.⁵

A litigant could move that the trial judge grant a new trial. Before the full court, litigants had other options. First, following a verdict for the plaintiff, a defendant could bring a motion in arrest of judgment. This motion was only for errors of law appearing on the record, but the record was generally very scanty and formulaic, giving no hint of the evidence or conduct of the trial. The record was more fulsome in actions on the case, which often alleged negligent torts, and special verdicts. In those cases, the court could address substantive legal questions more easily.

Second, following a verdict for the defendant, a plaintiff could make a motion for judgment non obstante veredicto (judgment notwithstanding the verdict). This motion entailed reviewing the verdict on narrow technical grounds. For example, a successful motion could be brought when the defendant pleaded a defense that was not good in law. Again, the defect had to appear on the scanty record.⁶

The third option before the full court became by far the most powerful: motion for a new trial. It was also the most expensive if successful, as the case had to be tried again before another jury. By the mid-seventeenth century, a new trial could be granted for matters that did not appear on the record. The trial judge could certify that the verdict was contrary to his direction on law, or contrary to the evidence, or that there were affidavits of juror misconduct. By the eighteenth century, a new trial could be granted on additional grounds: for example, if the trial judge gave incorrect directions to the jury on law or made an incorrect ruling on admissibility of evidence.⁷ To enable proper decision of the motion by the full court, the trial judge gave his fellow judges a detailed report of the evidence at trial. The common-law courts became increasingly willing to grant new trials for insufficiency of evidence. As a technical matter, whether there was sufficient evidence to support the verdict was a question of law, not fact.⁸ However, the sufficiency of evidence was close to fact. Thus, Sir William Blackstone observed that a motion for a new trial was then the only current “method of reversing an error in the determination of facts.”⁹

Requiring a new trial was formally the only way to reduce or add to damages. In practice, however, the full court could threaten to grant a new trial. This pressure would often cause the plaintiff to accept reduced, or remitted, damages to avoid a new trial.¹⁰

The trial judge could use the “case stated” method to seek help from the full court in deciding a point of law. This method was entirely within the trial judge’s discretion and could be used only for questions of law. The trial judge took a verdict from the jury subject to the full court’s decision on the law. By the late eighteenth century, the usual practice of “case stated” was for the trial judge to put additional specific questions to the jury to discover the factual basis for the verdict.¹¹

All of these methods had to be used before the full court entered judgment. Once judgment had been entered, the only method of review was the writ of error. This was a separate suit between the same parties, alleging an error in the first suit. (Hence the term “plaintiff in error.”) The error had to be “manifest” and appear on the record—for example, if an essential step was missing. Otherwise, certain limited new facts that were not inconsistent with the record—for example, the death of a party—could be alleged.¹²

These English methods of review of jury verdicts largely carried over to the American colonies and later states, but there were variations. For example, in Massachusetts, the method of review of a jury verdict was to try the case again before another jury in a superior court.¹³ Many state constitutions guaranteed a right to a civil jury trial, but no state constitution had a Re-examination Clause.

The Constitutional Convention

The Philadelphia Convention assigned appellate jurisdiction to the U.S. Supreme Court “both as to Law and Fact.”¹⁴ (See Essay No. 135.) This appellate jurisdiction would include review of any lower federal court decisions as well as review of state court decisions concerning the matters specified. In the English common-law courts, review of a jury’s findings of fact formally did not exist, although the question of sufficiency of the evidence was the functional equivalent. The Framers’ inclusion of “fact” as a subject of appellate review therefore seemed unusually broad and searching.

The delegates to the Convention believed that searching appellate review, including review of fact, was necessary for several reasons. First, as John Rutledge of South Carolina observed, federal laws should be uniform in their interpretation and application throughout the nation.¹⁵ Second, the delegates believed that, at a minimum, state courts would have concurrent jurisdiction with federal courts in deciding questions of federal law. Some delegates did not believe that lower federal courts should be created at all. Even those delegates who were the most enthusiastic about state power feared that state courts would fail to vindicate the power and rights of the federal government or of litigants raising claims under federal law.

James Madison of Virginia worried explicitly about state judges and juries. He was concerned about “the biased directions” that “a dependent [state] judge” would give to a jury. Madison also feared “the local prejudices of an undirected jury.”¹⁶ Biased judges and juries might distort facts so grossly that conventional review, with its remedy of a new trial, would be inadequate. Madison observed that “[t]o remand the cause for a new trial would answer no purpose.”¹⁷ A judge and a new jury would still be biased. In response to these concerns, William Paterson’s New Jersey Plan specified that there would be appeals to federal judges from state court decisions on federal acts regulating commerce “for the correction of all errors, both in law and fact in rendering judgment.”¹⁸

In late July, the Convention appointed a five-member Committee of Detail to write a draft text based on the deliberations of the Convention thus far. The committee’s draft text specified the original jurisdiction of the Supreme Court and declared that in other cases its jurisdiction was “appellate” without further elaboration. When the Convention debated the provisions concerning the judiciary, Gouverneur Morris of Pennsylvania asked whether that appellate jurisdiction “extended to matters of fact as well as law—and to cases of common law [jury trials], as well as civil law [non-jury proceedings].”¹⁹ James Wilson of Pennsylvania was a member of the Committee of Detail. He responded that the committee’s intent was to extend appellate jurisdiction to facts and law, as well as common law and civil law.²⁰ John Dickinson of Delaware attempted to clarify this point. He moved to include the words “both as to law and fact,” and the Convention unanimously agreed.²¹

The Ratification Debates

The Anti-Federalists were concerned about the federal judiciary’s potential power to review jury verdicts and reverse them. The provision in Article III giving the Supreme Court the power to exercise “appellate Jurisdiction, both as to Law and Fact”²² alarmed the Anti-Federalists. Brutus declared that this language “has justly been considered as one of the most objectionable parts of the constitution.”²³ He believed that a civil jury was of little use if the federal judiciary had broad powers to overturn jury verdicts. If a federal judge presided over a jury trial, the jury’s factual findings might be re-examined and overturned on appeal. Worse, Brutus worried, the Supreme Court might overturn a jury verdict from a state court. Other Anti-Federalists, including Federal Farmer, complained about these dangers during the ratification debates.²⁴

Adoption of the Re-Examination Clause

The Re-examination Clause was an attempt to limit the scope of federal judges’ second-guessing of jury verdicts. During the first Congress, Representative James Madison separately drafted the Preservation Clause and what would become the Re-examination Clause. In drafting the Re-examination Clause, unlike the Preservation Clause, Madison did not have a state constitutional model from which he could draw. The intent was to restrict federal courts’ reconsideration of facts found by a jury within limits set by the common law.

On June 8, 1789, Madison introduced the following language: “[N]or shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.”²⁵ Madison was appointed to the Committee of Eleven (see Essay No. 182), which altered this language slightly to “the course of the common law” and “than according to the rules of the common law” (emphasis added). Changing “principles” to “rules” suggested more definite restrictions. And the introduction of the definite article “the” before “common law” made the language seem more precise. (There is some confusion about when the definite article was added.²⁶) The House of Representatives approved the committee’s language.²⁷

As with the use of civil jury trial, however, the states had different practices with respect to review of jury verdicts: in other words, there were different versions of the “common law.” The amendment did not specify which common law, although the indication of a singular, definite common law suggested the common law of England. By contrast, the Preservation Clause has no such definite article. It refers more generally to “suits at common law.” This discrepancy has led one scholar to propose that the common law of England was intended for interpretation of the Re-examination Clause but not for the Preservation Clause.²⁸

The Senate revised the language into the exact form we see in the Constitution today: “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 the common law.”²⁹ The Senate also combined this provision with the civil jury right to form what became the Seventh Amendment.

The Re-examination Clause was adopted by the states without meaningful debate.

Judicial Precedent

Justice Joseph Story made a formative decision about the Re-examination Clause while riding circuit in United States v. Wonson (1812). Story explained that this provision should be interpreted according to the common law of England: “Beyond all question, the common law here alluded to is not the common law of any individual state, (for it probably differs in all), but it is the common law of England, the grand reservoir of all our jurisprudence.”³⁰ He declared the same test for the Supreme Court in Parsons v. Bedford (1830).³¹

Throughout the nineteenth century and into the twentieth, the Supreme Court consistently quoted and applied Story’s Parsons analysis.³² In federal court, the only way to correct errors of fact by a jury was by ordering a new trial. In Dimick v. Schiedt (1935), the Court specified a precise baseline time for determining the common law of England under the Re-examination Clause: 1791, the year the Seventh Amendment was ratified.³³ This was the preeminent example of a strict originalist test. This historical test was stricter than any applied by state courts to state constitutional jury provisions.³⁴ Indeed the Court’s precedents for the Re-examination Clause are more restrictive than the Court’s precedents for the Preservation Clause.

Judgment Notwithstanding the Verdict

The Re-examination Clause proved vulnerable to procedural reforms. Ordering a new trial was an expensive remedy for error: A case had to be tried again before a different jury. In the late nineteenth century, states developed a new procedure to avoid ordering new trials. Judges were authorized to set aside an erroneous jury verdict and enter a contrary judgment.³⁵ This procedure is known as judgment notwithstanding the verdict (JNOV). This new American procedure was broader than the limited English JNOV at common law. In Slocum v. New York Life Insurance Co. (1913), the U.S. Supreme Court declared that the new JNOV procedure violated the Re-examination Clause. The jury had necessarily found facts in giving a verdict, and entering judgment notwithstanding the verdict meant a judicial re-examination of those facts. The only possible remedy for an erroneous jury verdict in federal courts was a new trial.³⁶ As a result, federal courts, which sometimes applied state law, could not grant a judgment notwithstanding the verdict.

The legal profession reacted strongly against this decision.³⁷ Judgment notwithstanding the verdict made procedure in state courts more efficient: Why should the federal courts not follow? These commentators had forgotten about the Seventh Amendment’s unique Re-examination Clause, which had no counterpart in the state constitutions, and the federal courts’ strict originalist interpretation of that clause.

Despite these obstacles, a method developed to allow federal courts to grant a judgment notwithstanding the verdict. New state laws permitted a trial court to receive a jury verdict that was contingent on the judge’s later making a decision on the law. In 1935, the Supreme Court allowed a federal court to apply such a law.³⁸ The unanimous Court explained that this practice was in accord with the eighteenth-century English common-law practice of reserving questions of law for the court: the “case stated” procedure.³⁹ This precedent is reflected in Federal Rule of Civil Procedure 50(b), which declares that a judge is automatically deemed to have submitted the case to the jury subject to the court’s later decisions on law. This automatic reservation permits judgment notwithstanding the verdict—now known as judgment as a matter of law—in federal courts. In this way, courts and legislatures have crafted a skillful solution to the problem posed by the Re-examination Clause and its strict historical test.

Remittitur and Additur

Questions concerning the Re-examination Clause arise most commonly with respect to judicial review of juries’ damage awards. Federal courts have long held that a federal trial judge may overturn a jury verdict for excessive damages and order a new trial. Alternatively, the trial judge may offer the verdict winner a choice: Either agree to a reduction in damages or have a new trial.⁴⁰ This practice is known as remittitur. One scholar argues that remittitur violates the Re-examination Clause.⁴¹ As explained above, eighteenth-century English courts had an informal practice of remittitur. The Supreme Court has declared that the practice of additur (adding to the damages or facing a new trial) violates the Re-examination Clause.⁴² Unlike some state judges, a federal trial judge cannot simply enter judgment for a different amount because of insufficient evidence without offering the choice of a new trial.

Departing from the Historical Test

Gasperini v. Center for Humanities, Inc. (1996) moved away from a strict historical test for the Re-examination Clause. Justice Ruth Bader Ginsburg’s majority opinion instead considered whether a judicial control on jury verdicts was “necessary and proper to the fair administration of justice.”⁴³ Gasperini concerned whether an appellate court could review a trial court’s failure to grant a new trial for excessive damages. The Supreme Court had long held that federal appellate courts did not have this power, but federal courts of appeals had begun to engage in this review.⁴⁴ The Court declared that federal appellate courts could constitutionally engage in such review. Justice Antonin Scalia wrote a vigorous dissent, joined by Chief Justice William Rehnquist and Justice Clarence Thomas. Scalia examined eighteenth-century English sources and concluded that appellate review of these rulings violated the Seventh Amendment.⁴⁵

Gasperini, together with the actions of lower federal courts, may signal a weakening of the strict historical test. Considerations of efficiency and accuracy in procedure seem to some courts more important than adhering to the practices of England in 1791. Indeed, Hamilton suggested as much in Federalist No. 83 when arguing against a constitutional right to civil jury trial. Over time, the trend has been to allow federal courts, especially appellate courts, to assume more control of jury verdicts.⁴⁶

Open Questions

• Will the Supreme Court continue to move away from the strict historical test for the Re-examination Clause, as it did in Gasperini, or will it return to that test?

1. Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447 (1830). ↩︎
2. Renu00e9e Lettow Lerner, The Jury: A Very Short Introduction 40–42 (2023). ↩︎
3. John H. Baker, An Introduction to English Legal History 135–136, 82–85 (4th ed. 2007). ↩︎
4. John H. Langbein, Renu00e9e Lettow Lerner, and Bruce P. Smith, History of the Common Law: The Development of Anglo–American Legal Institutions 117–23 (2009). ↩︎
5. Baker, supra at 135–36. ↩︎
6. Id. at 82–84. ↩︎
7. Id. at 84–85; Langbein et al., supra at 439–50; Bright v. Enyon, 1 Burr. 390, 393, 97 Eng. Rep. 365, 366 (K.B. 1757) (opinion by Lord Mansfield); 2 William Tidd, The Practice of the Courts of King’s Bench in Personal Actions 605–608, 610 (1794). ↩︎
8. Renu00e9e B. Lettow, New Trial for Verdict Against Law: Judge–Jury Relations in Early Nineteenth-Century America, 71 Notre Dame L. Rev. 505, 508–515 (1996). ↩︎
9. 3 Blackstone 405–06. ↩︎
10. R. H. Helmholz, Damages in Actions for Slander at Common Law, 103 L. Q. Rev. 624, 629–634 (1987). ↩︎
11. Baker, supra at 84; James Oldham, Trial by Jury: The Seventh Amendment and Anglo–American Special Juries 10–13 (2006). ↩︎
12. Baker, supra at 136–37. ↩︎
13. William E. Nelson, Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725–1825, at 22–26 (1981); The Common Law in Colonial America, Vol. III: The Chesapeake and New England, 1660–1730, at 69–74 (2016). ↩︎
14. Art. III, § 2. ↩︎
15. 1 Farrand’s 124. ↩︎
16. Id. ↩︎
17. Id. ↩︎
18. Id. at 243. ↩︎
19. 2 Farrand’s 431. ↩︎
20. Id. ↩︎
21. Id. ↩︎
22. Art. III, § 2. ↩︎
23. Storing 2.9.169. ↩︎
24. Id. at 2.8.189; Matthew P. Harrington, The Economic Origins of the Seventh Amendment, 87 Iowa L. Rev. 145, 220 (2001); Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 679–82 (1973). ↩︎
25. 1 Annals of Cong. 452 (1789). ↩︎
26. S. Jour., 1st Cong., 1st Sess. 64 (Aug. 25, 1789); id. at 71 (Sept. 4, 1789); id. at 77 (Sept. 9, 1789). ↩︎
27. 1 Annals of Cong. 784 (17 August 1789). ↩︎
28. Stanton D. Krauss, The Original Understanding of the Seventh Amendment Right to Jury Trial, 33 U. Rich. L. Rev. 407, 447–51 (1999). ↩︎
29. S. Jour., 1st Cong., 1st Sess. 77 (Sept. 9, 1789). ↩︎
30. United States v. Wonson, 28 F. Cas. 745, 750 (C.C.D. Mass. 1812) (No. 16,750). ↩︎
31. 28 U.S. (3 Pet.) 433, 448 (1830). ↩︎
32. Renu00e9e Lettow Lerner, The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial, 3 Wm. & Mary Bill of Rights J. 811, 871–72 & n.418 (2014). ↩︎
33. 293 U.S. 474, 476 (1935). ↩︎
34. Lerner, Failure of Originalism, supra at 871–72 & n.418. ↩︎
35. Renu00e9e Lettow Lerner, The Rise of Directed Verdict: Jury Power in Civil Cases Before the Federal Rules of 1938, 81 Geo. Wash. U. L. Rev. 448, 515–18 (2013). ↩︎
36. Slocum v. N.Y. Life Ins. Co., 228 U.S. 364, 368, 398–99 (1913). ↩︎
37. Lerner, Failure of Originalism, supra at 871–72 & n.418. ↩︎
38. Balt. & Carolina Line, Inc. v. Redman, 295 U.S. 654, 658–60 (1935). ↩︎
39. Oldham, supra at 10–13. ↩︎
40. Kennon v. Gilmer, 131 U.S. 22, 27–28 (1889); Dimick v. Schiedt, 293 U.S. 474, 486–87 (1935); Hetzel v. Prince William Cnty., Va., 523 U.S. 208, 210–12 (1998). ↩︎
41. Suja A. Thomas, Re-examining the Constitutionality of Remittitur Under the Seventh Amendment, 64 Ohio St. L. J. 731 (2003). ↩︎
42. Dimick, 293 U.S. at 482, 486–88. ↩︎
43. 518 U.S. 415, 435 (1996). ↩︎
44. Id. at 434. ↩︎
45. 518 U.S. 451–57 (Scalia, J., dissenting). ↩︎
46. Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 437 (2001); Debra Lyn Bassett, “I Lost at Trial–in the Court of Appeals!” The Expanding Power of the Federal Appellate Courts to Reexamine Facts, 38 Hous. L. Rev. 1129 (2002). ↩︎