Melancon v. McKeithen

Jesse MELANCON

v. McKEITHEN,

The Honorable John J. In- dividually capacity and in his as Gov- ernor of Louisiana, State et al. HILL

Mrs. Edith

v. McKEITHEN,

The Honorable John J. In- dividually capacity his Gov- Louisiana, ernor of the State et al. JONES,

Fleta A. as Natural Tutrix Minor, Brenda Ware

v.

AETNA CASUALTY AND SURETY

COMPANY et al. Long

Derle and Lorena LONG

v. McKEITHEN,

The Honorable In- John J. dividually capacity his and in as Gov- Louisiana, ernor of the State of et al.

Guthrie A. Charlie MAYES G. Garner

v.

Frederick ELLIS S. et al.

Joseph MOTICHEK H.

v. McKEITHEN, In- J. Honorable John dividually, capacity his Gov- and in Louisiana, ernor of the et al. State DAVIS,

Mrs. Pauline Next of Friend Jerry Charles Davis Davis

The Honorable John J. et McKEITHEN al. Duly Individually

Angie LEWIS, R. Qualified Natural Tutrix Minor, Ann Velecia Lewis

FORD MOTOR COMPANY et al. 3390, 67-20, 68-2, 68-28,

Civ. A. Nos. 68-110, 68-225, 70-1857 and 71-227. Court,

United States District Louisiana, E. D. Rouge Baton Division.

March Führer, Neblett, Jr., Leonard Robert B. Hunter, Alexandria,

Neblett Führer & La., plaintiff Jones. for Fleta A. Gen., Atty. Gremillion, Jack P. F. Rouge, La., Wesley Wirtz, for R. Baton defendants, and Associate Chief Justice Governor, Attorney Justices, General. Reese, III, Adams & A. Sam LeBlanc defendant, Orleans, La., Aetna New for Casualty Surety Co. Rouge, La., Cobb, for

Arthur Baton Hill, Melancon, plaintiffs Motichek Long. Derle Hardin, Jr., Durrett,, Har- Calvin E. Fritchie, din, Hunter, Baton Dameron & defendant, Rouge, La., for Insurance Co. of North America. Gremillion, Atty. Gen., of

Jack P. F. Louisiana, McFerrin, Thomas Asst. W. Atty. Gen., DeJean,. Sp. Kenneth C. Atty. Gen., Rouge, Baton Counsel to the McKeithen, La., defendant, for Governor Attorney Gremillion, Judges General Landry, Paul B. Frederick S. Ellis E. Julian Bailes. Kantrow, Spaht, Spaht,

Carlos G. Walter, Rouge, La., Weaver Baton for & defendants, Co., Casualty Continental Inc., Contractors, Willie & Willie Willie Realtors, & Willie Leo and Marlin Willie D. Willie. Nelson,

Sydney Nelson, Pugh B. & Shreveport, La., Jr., Berry, for Hollis amicus curiae. Kantrow, Spaht, Spaht,

Carlos G. Rouge, Walter, La., Weaver for & Baton defendant, Jess Johnson. Chaffe, McCall, Phillips, Sarpy,

Leon Orleans, La., Sarpy, Toler for de- & New fendants, amicus curiae. Guidry, & DeBlieux, J. D. DeBlieux defendant, La., Rouge, for Clovis

Baton Hendry, Benny Spence. Inc. and La., Simon, Lafayette, for J. Minos plaintiff Mayes. Atty. Gen., Gremillion, F. Jack P. Atty. Gen.,

Wesley Wirtz, Asst. R. Counsel, DeJean, Special Kenneth C. Ellis, defendants, La., Rouge, Baton others. McKeithen and Lauve, La., poration” plain- L. Alexandria, properly process O. describes the Angie tiff, Lewis, specific R. guarantee etc. which now a Rights applicable Bill is considered Irion, Shreveport, Valentine La., for states, note we defendant, Motor Ford Co. Court has never selected Roy Shreveport, La., applicable L. Beard, de- Amendment trials fendant, Taking Wray Mercury, pragmatic Lincoln state courts. a Inc. federally approach issue, sound the we Jr., Bodenheimer, Shreveport, M.G. jury hold that in the trial cases and civil La., Moss, Rouge, Donn La., Baton for prohibition judicial absolute re- Co., defendant, Many Motors Inc. findings jury examination in civil cases so the are not fundamental WISDOM, Judge, Before Circuit system justice American to be HEEBE, Judges. and WEST and District quired by process. of state courts due Although the Louisiana Constitution WISDOM, Judge: Circuit guarantee contains no the to a plaintiffs jury The in these consolidated trial Articles in civil 1731- (See A) Appendix cases invite this 33 of the Code Civil Proce Louisiana timely require jury Court hold that Amend- Seventh a on dure trial ment of the party United States Constitution1 demand of either an action.2 applies Louisiana, appeals however, civil in actions Louisiana courts Civil through La.Const., Process Clause Due both the law and facts. Many VII, Fourteenth decline the Amendment. We Art. and 29.3 § Supreme lawyers appel invitation. never Louisiana consider adopted principle scrutiny Due late offsets facts o,f advantages pooled Process sympathy Clause the Fourteenth Amend- or in totally “incorporates” jury ment all a tuition As associated trials. guarantees specific Rights. rarity consequence, jury the Bill trials are a civil Assuming long rarity the term incor- is “selective related Louisiana.4 A forgery, 1. reads as fol- is defense thereto unless fraud, error, : lows want or failure of con- ; In Suits at common where the sideration controversy twenty (3) summary, executory, probate, value shall exceed A dollars, by jury corpus, partition, mandamus, of trial shall habeas preserved, warranto, injunction, coneursus, quo and no tried fact jury, emancipation, compensation, shall be otherwise reexamined in workmen’s tutorship, any States, interdiction, curatorship, Court of the United than le- according filiation, separation gitimacy, rules of common from bed board, marriage, law. annulment of or proceeding; divorce jury (4) proceeding Art. 1731. triable Issues an A review action Except body; as limited Article municipal an administrative by jury recognized. of trial is (5) All where a trial specifically Art. 1732. Demand for trial denied law. party A a trial demand probate 3. “In all civil cases where right by issue triable of given appellate pleading in a later than filed not jurisdiction, appeal be both shall days of the last ten after the service VII, upon the law and the facts.” Art. pleading directed such issue. § upon Art. 1733. Limitation trials Appeal] appeals all “[In the Court of A trial shall not available upon shall be both the law and in: VII, facts.” § Art. demanding (1) A suit less than one year were of interest court there thousand dollars exclusive For costs; There trials Louisiana. were 86,672 103,579 filed with termi- A suit obli- civil suits unconditional specific year. gation pay money, In the sum of nated the 1971 court three-judge court. See for a other one litigants, found queue often years 2281.7 states, waiting many U.S.C. § months A tried.5 to be their actions three-judge to the Relevant however, more Louisiana, favorable is the that a decision issue fact appel futility, exercise than an disrupt plaintiffs would jury’s aor disturb will late courts system judicial for the Louisiana findings judge's unless verdict appeal of civil actions. “manifestly erroneous”.6 fact are Legislative First Session THREE- Territory AOF Orleans I. PROPRIETY Council adopted AND JURISDIC- COURT Act of the Practice JUDGE THE COURT OF the Code of Practice TION evolved into juries This Act introduced 1825.8 must meet the outset we At A. 210, 216, Chap. pp. ofAct Louisiana. case contentions defendants’ by treaty ceded France 8. secret In 1762 year the district of lying Spain of Louisiana the Province reported trials. no civil courts Mississippi portion and the of the west on the east bank Report Council the Judicial of City surrounding the Louisiana, 63. of By of ordinance the of New Orleans. procedural the remains fact “[T]he 5. O’Reilly 25, 1769, substi- Nov. Governor actually system courts in Louisiana state Recopilación (Nueva Spanish law tuted delay. justice dispenses undue without Recopilación de las and the Castilla de scarcely there In Louisiana . . . Indias) the Before for French law. sixty-four a among wherein parish the procedure Spanish regime, fol- Louisiana six three to within heard cannot case and of Paris the Custom lowed requested.” a trial of the time months of of Louis XIV Ordonnance Civile Juries, and Decline Sarpy, Their Civil April laws of these The influence 1677. Loyola Fall, L.Rev. Eventual during jurists persisted of French (1963). despite Spanish domination the O’Reilly Judge (now of ceded France a Justice After Tate ordinance. Albert States, Supreme Court) has Gover- writ- to the United Louisiana the Louisiana Claiborne, appellate the tem- must under courts nor W. C. C. ten: “[Louisiana] Congress authority jurisprudential porary of rule of an Act adhere to the settled estab- de- Stat. factual of Oct. . a trial court’s . accepted Pleas with on of lished Common terminations should The appellate review, of resort. of himself the court last the absence as imposition Tate, common courts on Error of law Manifest error.” manifest merger Appellate already of French and confused —Further Observations Spanish cases, chaos to confusion. law added civil of Louisiana Facts Review adopt- Congress by came to rescue See also La.L.Rev. dividing ing paragraphs into Louisiana statute Sec- of the final text providing opinion. two territories exercise Louisiana of this tion IV judicial power by judge applies by courts rule to trials Territory judge. created the by of Orleans to be to trials alone. as well as Legislative Act Council. injunc- interlocutory permanent 7. An or 25, 1804, 2 March Stat. 283. First enforcement, op- restraining tion Legislative Session of Council any eration or stat- execution "State Territory adopted Orleans by restraining ute action Practice Act drafted Edward officer of ment or State the enforce- such Livingston, Lislet, L. Pierre Moreau such statute or execution of Derbigny, the Framers who were also order made an administrative Livingston, Civil Code acting board State any commission under in the common and the civil skilled statutes, granted shall not be adapted law, having is attributed with judge court or thereof district Spanish law, in sim- to French and tut upon ground of the unconstitution- plified form, aspects many com- appli- ality of such statute unless the outstanding authority mon An law. cation therefor heard and deter- history legal Louisiana “Of has noted: mined a district court three legal institutions, all Louisiana the Code judges under section 2284 probably indi- of Practice is the most title. vidual, wrought 28 U.S.C. it is from dif- § 2281. these April 10, preme statute, In this as in all appellate Court held that Practice, later State’s Codes of modify could review the evidence is absolute on the jury’s reverse a civil verdict. Abat v. timely request party Doliolle, 1816, Mar.(O.S.) either to the ac- This See footnote 2. tion. subject still to the “manifest error” doctrine. The current Louisiana When Louisiana became a state following constitution, earlier constitu- constitution, statute, tions, expressly provides appellate judicial accepted decision Louisiana Const, review of “the law and the facts”. including system, common law criminal Louisiana, Art. §§ prosecu- to trial jurisdictions generally in civilian tions.9 Then and now Louisiana the “equity” is fused with what is considered substantially law of crimes is the same Anglo-American the “common law” in procedures as it is in other states jurisdictions;11 prohibition including jury pro- in criminal destroy review of the facts would tend to cedures, show variance from little more this fusion. has never had state many norm than be found in distinguished common law courts as from Anglo- receptivity states. This courts. other has never had common American law in the criminal field is not action, ruling law forms of still some private proce- true of law and civil grave. Indeed, state courts from the jurists, Louisiana influenced dure. reference in the Seventh Amendment legal heritage, Spanish their French and law”, findings “suits at common as the accepted jury’s construed never meaningless it, years Four after Louisi- Framers construed sacrosanct.10 state, judicial system. ana became a Louisiana Su- It could the Louisiana simplicity systems. pro- quite ferent practice of our The different role the civil always Comment, source has Louisiana.” cedure of Official pride.” Tucker, Chap. 7, Jury Preliminary of Loui- Source Books Statement on Law, (1932). Trial, (1961). siana 7 Tulane L.Rev. 82 of Civil Proe. La.Code Supreme has Louisiana Court said: Sarpy, Juries, Decline 10. See Their Civil “But one of the most valuable features Fall, Loyola 11 and Eventual L.Rev. system jurispru- of our of [Louisiana] Jury (1962-63); Hubert, 243 Trial par- simplicity dence is the with which Procedure, under the New Code Civil permitted bring rights ties their Note, (1961); 41 35 Tulane L.Rev. 519 justice. before the tribunals (1967). Tul.L.Rev. 922 technicalities in other which countries progress embarrass and obstruct present 1 1. Louisiana Article 21 justice are unknown to it. All it re- goes back Civil Code which quires party each shall so state Projet of 1800 and an du Gouvernement grounds his of attack or defense early Napoleon, draft of the reads: Code adversary the awares, shall not be taken un- matters, no “In all where there is judgment and that which pro express law, judge is bound to may rendered, against for or it whom according equity. and decide To ceed protect given, himself equitably, appeal decide an to be made plea judicata. of res These are the reason, to usages, natural law and received objects by pleading.” to be obtained positive where silent.” law is Beardslee, (N.S.) Stroud 2 Mart. 84 development Chancery equity in (Opinion by Matthews, J. who did not Courts include was trained in the common law and who necessarily appellate review of involved judge.) also served as a territorial Right Jury James, the facts. See to a simplified pleadings Louisiana had Actions, Trial 72 Yale L.Jour. Civil procedures long before the Field Codes .655, (1963); James, Proce Civil 657 or the Federal Rules. dure, Chap. prohibit ap (1965). 8 To Const, VI, pellate scrutiny Art. 18. See § facts would Long’s Louisiana, pp. Constitutions of a serious effect on Louisiana’s fusion equity. argument 12-14. “While the law and functions Cf. substantially Livingston the same manner Edward and Daniel Webster Bedford, Peters) criminal (3 this state as in in 433, other Parsons v. 28 U.S. plays American jurisdictions, a lesser L.Ed. that, terms, be said increasing willingness have shown inapplicable part Amendment is to Louisiana. of the Court to re-examine the precedents old held certain These consolidated cases seek to specifics Rights inapplicable in the Bill of long simple, overthrow Louisiana’s to the States.13 These cases illustrate the standing, demonstrably effective civil responsiveness the Court to an procedures. They clearly therefore come evolving process. standard of due Ac- policy underlying within Section cordingly, Supreme Court never is, three-judge 2281: district having incorporation commanded total plaintiffs required when seek Rights the Bill of into the Due Process federal restrain enforcement Amendment, Clause Fourteenth statutory state officials of state or con point we in our conclude that at this con- provisions. stitutional history stitutional federal substantial question argue must exists reassess The defendants here: we requirements process Supreme of due applied since Court has respect Rights selectively trials and the Bill review the States jury findings proceedings. consistently in state ruled has the Seventh States, inapplicable no question re complaints substantial federal exists plaintiffs’ B. The quiring case to be heard a three- predicate “jurisdiction” on 28 U.S.C. §§ judge Patterson, Bailey 1343(3) court. See 1331 and and 42 §§ U.S.C. L.Ed.2d S.Ct. hold that 1988. We 512; Poresky, 1933, parte Ex properly jurisdiction under 28 U.S.C. is true (3)14 78 L.Ed. 1323. It of action based of a cause § long alleging depriva that a and consistent line of Su U.S.C. § preme stands Court cases adverse tion, state under color of plaintiffs’ contention.12 Numerous Constitu secured however, eases, recent tion. Elliot, 1874, by any Wall. commenced See Edwards v. ized to be 487; 532, 532, person: 22 L.Ed. Walker To redress 88 U.S. ... any 1876, 90, Sauvinet, deprivation, L.Ed. 92 U.S. 23 State v. under color Chicago, regulation, 678; law, statute, ordinance, P. R. v. R. I. & R. Co. cus- 68, 54, right, privilege 1919, any usage, Cole, 40 251 S.Ct. or U.S. tom 133; immunity Mu- Hardware Dealers the Constitu- L.Ed. or secured 64 Co., 1931, by any or Fire v. Glidden States tual Ins. Co. tion of the United 214; 69, 151, providing equal Congress 52 76 L.Ed. for 284 S.Ct. Act of U.S. 1388, persons 1410- L.Ed.2d all Anno. 18 or of see also of citizens jurisdiction of the United within 1412. States; Hogan, 1964, Malloy Compare 378 13. v. 1343(3). 28 § U.S.C. 1489, 1, 12 L.Ed.2d 653 84 S.Ct. U.S. California, 1947, 332 v. with Adamson any Every person who, color 15. under 1903; 1672, 46, 91 L.Ed. 67 S.Ct. U.S. custom, statute, ordinance, regulation, or 1963, Wainwright, 372 U.S. Gideon v. Territory, usage, any sub- State 792, 335, L.Ed.2d 9 799 83 S.Ct. any subjected, jects, be or causes 455, 1942, Brady, 62 316 U.S. Betts v. other citizen of 1595; 1252, v. L.Ed. Robinson 86 S.Ct. jurisdiction person thereof to within the 660, California, 1962, 370 U.S. 82 S.Ct. rights, privileges, any deprivation of 1417, v. L.Ed.2d 758 with 8 Collins by the Constitu- secured or immunities 502, Johnston, 1915, U.S. 35 S.Ct. 237 par- laws, liable to shall tion 1961, 1071; Mapp Ohio, 649, v. L.Ed. 59 injured ty suit at in an action 643, 1684, 6 L.Ed.2d U.S. 81 S.Ct. 367 proper proceeding equity, or other 1951, Minard, 342 v. 1081 with Stefanelli redress. 118, 138; 117, 96 L.Ed. U.S. S.Ct. 72 Douglas City v. See 42 § U.S.C. 1388; Anno. Anno. L.Ed.2d see also 18 157, 1943, Jeanette, 63 S.Ct. 319 U.S. 23 L.Ed.2d 985. CIO, 1324; Hague 877, v. L.Ed. 87 954, 496, 1939, 83 59 S.Ct. original 307 U.S. shall have The district jurisdiction L.Ed. 1423. civil action author-

1031 object Education, 1963, 668, the Board of defendants U.S. jurisdiction 1433, 622; on several S.Ct. Monroe L.Ed.2d grounds. First, Pape, 1961, 473, defendants 167, some of v. U.S. S.Ct. (see Ap 492; Henckel, as in Melancon v. McKeithen 5 L.Ed.2d Moreno v. 5 Cir. argue judge’s pendix A), 1970, that Fourth, the trial 431 F.2d 1299. some of the granting a final independent not contend, order new trial defendants of their judgment and, may ap therefore, not be impropriety assertion as to of a three- appeal court, pealed. judge jurisdiction an improper not however This is rather from the state order but because their not involve a case does sub original where question. action federal court See stantial federal Pan judgment Corp. Superior final rules 28 U.S.C. American v. §§ Petroleum Second, application. 1303, Court, 1961, no and 1291 have 366 U.S. 81 S.Ct. citing argue, not, however, the defendants some of 6 L.Ed.2d 584. do We Fidelity Co., predicate jurisdiction Rooker v. Trust on 28 U.S.C. § 1343(3). L.Ed. 44 S.Ct. rather 1331 but § 28 U.S.C. review federal court not argue lower Finally, this Court defendants Again appeal a decision of a state court. “jurisdiction” defend lacks because jurisdiction emphasize in this our we judges suit. All are immune ant from original.16 appellate case is not but immunity judicial upholding complain Third, the defendants some o.f See, g., damage e. actions. involved have plaintiffs failure these Ray, 1967, 547, 87 Pierson v. 386 U.S. supposedly path exhaust Judges 18 L.Ed.2d S.Ct. although court, open them in state injunctive such as suits immune closed must know to have been fact, just a suit which it is such this. Moreover, years. read as we Younger Harris, need remedies state its commencing a suit L.Ed.2d exhausted before permit.17 McNeese companion under seem Section cases would Chastain, challenge in a true In Brown v. 5 Cir. decided stitutional adversary pre- vigorous plaintiffs 416 F.2d over the dissent context. Rives, Judge challenge in the that a Court held a constitutional sented repre- jurisdiction court federal district has no defendants court with the state question. senting a fed- to review a final determination of the adverse view question voluntarily Third, although eral constitutional in Brown v. Chastain plain- holding submitted to and a state decided reason exists for some litigation. state court At least forum their initial choice tiffs to claims, litigation members of the two of constitutional plaintiffs about choice indicated doubts the soundness no real here had the of forum. holding. They bring See Florida State Bd. their tort and, could Mack, Dentistry court, once actions they state (White, trapped did, they 28 L.Ed.2d 245 state were J., Burger, challenge joined, dis- the with whom C. J. to as their forum court senting certiorari). Finally, procedure. from denial of consistent state cooperative principle federal- doctrine of Brown v. is Chastain the of with applicable First, ism, is not filed here. the suit v. Chastain on which Brown based, approval in federal court the Louisiana Brown v. our of Chastain allowing sought by procedure to attack the substantive decision fosters federalism fashioning by their rendered a state court on a constitu- to the states in latitude systems question; is, complaint procedure. tional the of civil in the federal attack on the merits disposition the in- of these case the state In the of our court. 17. In view cases, plaintiffs reach stant the not to fed- need not and do resort we Younger attempt challenge problems eral court in an the to raised numerous v. procedure They court, companion used cases. and its state Harris judg- i. particular, we e. were review formidable. In facts. injunc- grant plaintiffs’ request ments on the merits of tort the state to decide, Second, relief, not actions are we should attacked. Brown tive among things, (1) Chastain involved state eon- other whether sion; parties II. HISTORICAL BACKGROUND the consent of both disputes THE other referred to the DECLINE OF CIVIL could be AND recognitors (jurata verdict and JURY of local assisa). measures, “These how- tentative Anglo- history If ever, vague unconsolidated, still must and proves anything, proves American it proce- identified with definite many assumed into date which at a later dure circumscribed, and cir- forms has been Magna promise did not coalesced: Carta cumvented, in various and abandoned 20 McKechnie, by jury’ anyone.” ‘trial types many jurisdictions. of cases in persistent error, adopted for “One place for an extended This centuries, many hard and even now essay development historical on the dispel, the Great Charter non-jury trials, on that words but few guaranteed by jury.18 This belief subject may appropriate. Without competent held all authorities now juries Chancery coexisted the Court McKechnie, Magna be unfounded.” King’s Bench, Com- Courts theory (1914), now Carta 134. The Pleas, Exchequer, 1787- and mon and generally b.-. accepted is that equity were 1791 “determinations developed inquests which from Norman thought deter- to have as much force developed Frankish in turn from the possible and minations at rights inquisitio, prerogative of the rights not view- was impact on kings.19 Originally jurors Frankish were Ellesmere, not Lord ed with concern”.21 neighbors they knew called in because Coke, last word had the Sir Edward might of the relevant facts know the Chancery entitled was whether short, put them. case before Lord record”.22 of a “court By jury system upside has turned down. grave triumphed from the Ellesmere Henry Assize time II the Grand of 1873-5 Acts when The Judicature used to settle title claims suits; there- equity in civil fused law and Petty disputed posses- Assize to settle important popular the more pending Younger applies rationale of recognitors, the twelve Sometimes proceedings, (2) two. the fed- whether King’s by the assisa statute, as an anti-injunction summoned 28 U.S.C. eral command, liti- of both consent case, were applies to this § try jurata gants into a “expressly turned author- whether § unexpectedly had broader issue exception ized” § phrase, explains assisa arisen. This identifi- 18. The error was source juratam. The assisa ad veritutur judicium cation of trial with ¡tirata, always closely connected parium chapter Magna 39 of Garta. features, sembling other in essential each “Judgment by peers” simply acknowl- be ancestors can both claim edged lay of a baron to his “jury,” name modern civil —the dispute case before other barons when having popular sur- institution more among arose them or with the crown providing Carta, Magna vived. particularly Keeney, Judg- itself. petty frequent holding the three ment Peers develop- assizes, a state marked Maitland, (2d while, Jury; en- 19. 1 Pollock Ed. ment of the Civil 1959); Plucknett, History procedure Henry forcing A Concise the criminal Law, 106-111, (5th abuse, Plantagenet, guarding Ed. Common from 1956); bearing Holdsworth, History Eng- A had also vital Charter Law, 312, authorities, genesis Jury lish 328. German and the Grand partly upon acknowledged by Petty McKechnie, Jury relied these alike.” 137. English authorities, have considered this Shapiro Coquillette, The Fetish subject depth. in Jury in Com- Trial Civil Cases —A points Hill, 20. McKechnie out “While however: ment on 85 Harv.L.Rev. Rachal narrowly (1971). the assisa was confined a 442, 455 types jurata cases, a few was Eng. remedy capable Judgment I in flexible ex- James indefinite pansion, Rep. the more and thus soon became but, the usual came to civil after of trial be “I must ac- he said: mode by judge knowledge readily a true of suits I What that cannot discern alone. England equity inseparable in in is a true connection between the fortiori many admiralty:23 liberty, by jury hun- suits in existence and the trial years today dreds one has con- in o.f no civil cases. . . . excellence concept appears to the sidered a essential in civil cases admiralty foreign depend of a in suits.24 fair trial circumstances preservation liberty.” a recent Federal Con- we turn to the When study material, all available by jury vention, find that we English American, on the back- upon in debate civil cases was touched ground Amendment, of the Seventh intentionally final left out of the but was author concluded that Seventh great document, probably of the because codify not intended to Amendment was diversity practice.25 In the in state rigid jury practice a in- form of —that Federalist, Hamilton No. Alexander deed in 1791 there was no fconsistent practice readily importance of trial and the thirteen colonies conceded original codified.27 states to be in some criminal cases states, Admiralty ventions of several was 23. In Tudor times history” “legislative specific of the Bill court, dealing general a commercial any Rights be found evidence disputes, can whether classes of commercial judge con- was Elton, the relation Tudor Con- not. maritime or most but the sidered as affected (1960), 152. stitution way general possible the seventh Burger has said : “Funda- 24. Chief Justice amendment, consid- it was or even mentally between difference there is no any implicit under- ered at all. Nor can ship collisions collisions automobile pre- relationship standing as to this larger generally except ships involve original sumed, among thirteen [of Yet these wise authors stakes. half a dozen states there were at least admiralty litigation in left Constitution] prac- widely differing patterns of civil juries. judges without hands of tice, the available as an examination of in which . . The Act of 1947 . Claims contrary, On the case law will show. Congress study provided after much single that no was well understood Judge without a Federal system practice satis- of civil could jury. if [the ... I submit procedures fy everybody. The varied anticipate the had been able to Framers] early years in the of the federal courts provide they impact on courts automobile and its par- that no further evidence possibly two one and would have done pattern to be understood ticular prescribed. was they per- (a) things: have made would positions . . [T]he injury exception sonal cases an to federal Douglas Black and taken Justices diversity jurisdiction (b) would appear to be based on a misunderstand- ship if have said that collision is to eight- (which widespread ing in the simple judge tried without a century) powers of the eenth disposed automobile case could be particularly criminal way.” (emphasis added). same Address position peculiar libel in criminal its Burger, Justice Testimonial Chief jury’s cases before Fox’s Libel Act. The Pennsylvania Supreme Dinner for acquit right in a criminai unlimited Philadelphia, Bell, Chief Nov. Justice recognized at least case had been well 1970, quoted Monograph, Defense Re- the seventeenth since the latter half of Institute, search Inc. No. 13 century except, peculiar because of a The British Administration of Justice quirk in same criminal these Act, gives jurisdiction over aircraft wide- libel These cases led to cases. Admiralty. right jury’s spread discussion of law,” Henderson, Background emotional “to decide the See argued Amendment, it was osmosis 80 Harv.L.Rev. cases as well. had this 292-4. also The Federalist No. at logic (Wright, (Hamilton). of an 1961) But it is hard to follow the argument ed. 1st which would infer from (Wright Ed.) p. 26. The Federalist No. 83 jury’s acquit unquestioned now 522, 523. in criminal cases—a history protection for the defend- Nowhere of the Phila- a one-sided pro- delphia ratifying ant, convention, like much else criminal con- so England average virtually year jury In of one the civil has under a over last years.” Jackson, Machinery ten of of vanished. The Judicature Acts 1873- regard fusing England, “may p. equity, Jurisdiction, in Justice Civil law and Chancery (1963). triumph in ed as the of ideas years of a few civil suits”.28 Within passage Devlin, Devlin, Lord then Sir Patrick juries these of of acts use explained: drastically; from 1885 until “declined by judge popularity “The of trial roughly in half heard of cases established; decisively alone is now King’s Bench were before Division proportion jury the percent of is now trials judge a the Administra alone”.29 Under percent of the whole. or tion of Justice Act of 5, 23-24 Geo. composed of About half of this is excepted only 36, jury c. trial is to be ordered only (which a cases form charge (at a there is of fraud where litigation) minute fraction civil charged) request party the case or of cases other half consists slander, prosecu libel, malicious one of application has a which successful seduction, or tion, imprisonment, false usually made one side or other— promise. there is breach Even then plaintiff a case that a and often with jury is of the if trial no is weak in law. any requires pro opinion the trial supposed that not be must longed ac doctrines or examination of being is due to severe decline any in local or scientific or counts for; refused asked the number when vestigation conveniently cannot which negligible. quite of refusals is fact jury. made with a In suggest attempt An after 1933 Queen’s only 24 Bench were tried ought granted to be jury.30 “Juries have never been before special it unless was a reason for there changes County Courts, popular decisively negatived the full was made on were Appeal, held that King’s Bench, the same lines as for grant quite un- discretion to was being governing County rules Courts is due The decline fettered. County Courts Act enacted in the being juries asked fact end to was a virtual 1934. The result ”31 for. . . Courts; County in 1936 of trial in hearing never 28,221 trial in Scotland there “Civil on cases determined Constitution,’ palladium the been ‘the seven was expressed specific equally consensus was unlimited cedure —an judge in civil give ordi- in an the relation either side verdict contrary, there was party while nary cases. On ease “between general juries agreement money stake, in a party” is at in which great thing, good rationality way di- regardless were verdict’s versity practice states in the thirteen support immense in the evidence. The why eighteenth-century no uni- importance reason to as a was referx-ed possible. rule was form constitutional Libel libel cases and of Fox’s criminal unques- moreover, diversity, seems history government This free Act principal tionably rea- unquestioned; have been their relevance but why damage negligence, seventh amendment son suits for breach general terms. contract, illegal in such drafted of trade restraint Background Henderson, the Sev- nil. In the civil courts ... Amendment, early Harv.L.Rev. enth of the American colonies and (1966). seen, States, there as we prac- nearly many patterns were Machinery Jackson, Justice jurisdictions. tice as there were p. (1960). England, ju- was much less states there some Eng- dicial than control Id. land, more. some states rather during ratification contro- Neither Id. at subsequent proceed- versy nor By adoption Rights Devlin, Jury, ings of the Bill of Trial 130-133

1035 English law, as is the in case since the years B. Two after the Fourteenth origins very of Scots law are different. adopted, Amendment was in Justices v. only Not part is this Murray, institution no 1870, 274, 658, 9 19 Wall. L.E. legal ethos, the Scottish but conflicts the Court held that the Seventh Amend- sharply with the civilian tradition of prohibiting ment re-examination facts belatedly Scottish law”.32 The British applicable appellate to federal courts introduced the civil in Scotland—at reviewing when recognized decisions, state court but o,f beginning century nineteenth provision has no —but legislation it “has been whittled down powers effect on the of state practice so that in modem years courts. Four later in Edwards v. mainly employed times it is in Elliott, actions 1874, 532, 21 Wall. 88 U.S. damages personal injury”.33 In 22 L.Ed. Court, dicta, in stated Africa, South where the Roman-Dutch the Seventh Amendment many law has similarities to Scots apply trial “does not trials and to Louisiana “no tears were State question Courts.” The by jury shed South Africa when trial applicability of the Seventh Amendment in civil cases was abolished” 1927.34 provisions through to the states the Due Process Clause of the Fourteenth Amend- presumptuous It is and chauvinistic to squarely ment was raised in Walker v. argue that civil trials such countries Sauvinet, 1876, 90, 23 L.Ed. 678. Germany as France and the petitioner complained of a Louisiana Scandinavian countries are unfair. requiring judge statute direct a paradoxical and anachronistic to assert agree. verdict when the failed to necessary that the civil of 1791 is He contended that the statute violated to assure fair common trials in suits at his under the and Four- Seventh juries country law this when civil teenth Amendments. Court away England, been all but with in done language sponded with which has been source the common law. governing law ever since: III. INCORPORATION DOCTRINE ‘[A]rt. the Amendments 7 Baltimore, 1833, relates in the courts of A. Barron to trials In v. 7 Elliott, Supreme United Edwards v. Pet. L.Ed. States. 8 Wall., XXII., principle 21 22 established the first 557 'the [88 States, so far as this ten amendments to L.Ed. 487]. the United States concerned, Amendment is are left Constitution on the were limitations regulate power government: trials their own courts of the federal Rights way. apply in suits such, their Bill of does not own A pending in In at common law the State the States.35 the Fourteenth therefore, not, privilege part Amendment Courts is became citizenship, immunity there of national States Constitution. then Since by the Four- are forbidden active as to whether the States debate abridge. A Rights specifics apply teenth Amendment in the Bill through person of his deprive a cannot Process State Due law; property process of without due Clause of the Fourteenth Amendment. (1811) ; (O.S.) Jury Scotland, tick, Smith, Ren 2 Mart. Civil Trial (O.S.) Bourg, thorp (1964). 4 Mart. v. Va.L.Rev. Martinez, ; (1816) 5 Mart. v. Maurin Id. at 1086. Huntington (O.S.) Cf. Centlivres, African Constitu- Bishop, The South in which Vt. Law, Butter- Rule tion and the held of Vermont apply African L.Rev. worth’s South did not upon the re “The restriction trials. state Louisiana, Barron even before tried fact examination Baltimore, jurisprudence constante it was limited, the Courts of terms apply Rights Bill of did Territory procedures. United States. v. Hat- to state imply 19, 20, necessarily L. but this does not that U.S. affecting proposition all trials Ed. that “some state property persons personal rights safeguarded the jury. must be eight requirement against This the Con- first Amendments national met, safeguarded against is had stitution is cording if ac- action the trial also be judicial action, to the course of settled state because a of them denial proceedings. Murray L. process & v. Hoboken would be a denial of due law”. XV, Co., 376, How., Twining I. 18 280 [59 U.S. that the Fifth Amendment held against privilege 15 . . . is not self-incrimination 372]. L.Ed. privilege immunity or of national years hundred 92 at For a U.S. 92-93. guaranteed citizenship by the Fourteenth Supreme has deviated Court not from abridgment against by the Amendment Indeed, Su- Walker v. Sauvinet. rejected States. the contention frequently preme denied Court has incor the Fourteenth Amendment involving precise certiorari cases porated any specifies of the Bill us.36 issues in the before raised Rights. rights protected are Certain against those state action “not because Supreme has never C. The eight rights are enumerated in first Amendment Fourteenth decided they Amendments, are Rights. but because “incorporated” totally Bill of they included such a as that are nature Slaughter-House Going Cas back conception process of law”. due (16 36, Wall.) L.Ed. es, 1872, 21 U.S. 83 99, Mr. 211 at 20. U.S. at 29 S.Ct. 394, Process Due held that the the Court position Justice Black later criticized protect Orleans New did Clause gloss” the Constitut “natural against inter laws which state butchers hand, Mr. Justice ion.37 On the other In to do business. their fered with “Decisions Frankfurter has said: California, 1884, 110 U.S. Hurtado v. equal do not have [the Court] 292, 232, 516, 111, L.Ed. 28 48 S.Ct. authority . . The Twin intrinsic ing . rejected due the contention Court process judicial process its at case shows to indictment included the should . . . best. diluted, [It] court, although rec in a the court state ju unwittingly, in its either even protected ognized process cer due particulars.”38 philosophy or in dicial its Chicago, rights. tain fundamental Burlington Quincy Chi Connecticut, & Railroad v. 1937, U.S. Palko v. 302 581, cago, 1897, 226, 41 319, 149, 288, U.S. 17 S.Ct. 166 L.Ed. 82 58 S.Ct. Harlan, 979, Twining modifying the first L.Ed. Mr. Justice credited with process by applying who had dissented in Hurtado without a “selective” doctrine mentioning Hurtado, v. Balti “absorption”: Barron Fourteenth more, Rights, Bill of held that those funda- absorbed just process required pay guaranteed due Bill of a state to mental thought taking compensation proper Rights, for the such as freedom of ty public liberty nor speech, use. This cited neither case is without which Twining Jersey, 1908, justice were 211 if v. New exist would Aetna, 1971, Berry See, Gulf, 58; g., 1967, 46, e. v. v. Parsons L.Ed.2d 389 17 1255, 896, 215, 213; 1005, L.Ed. 28 U.S. 19 L.Ed.2d U.S. 91 S.Ct. S.Ct. Aetna, 1967, 990, (Appeal for want Jones v. dismissed 2d 389 U.S. denied). 482; Mayes 471, jurisdiction, 19 L.Ed.2d v. and certiorari S.Ct. 1969, McKeithen, 868, U.S. S.Ct. 1946, California, 332 U.S. v. Adamson 108, 121; 24 L.Ed .2d Marshall v. South 46, 1672, Mr. 91 L.Ed. 67 S.Ct. Casualty Co., 1968, Farm ern Bureau position restated his Justice Black 158; 189, 883, L.Ed.2d U.S. 89 S.Ct. opinion concurring Louisi- in Duncan v. King Vico, 1966, 841, v. U.S. ana, 391 U.S. 88 S.Ct. 73; 17 L.Ed.2d S.Ct. Broussard 20 L.Ed.2d Farm, State 386 U.S. 87 S.Ct. California, 783; at 17 L.Ed.2d v. Mo. Pac. Sule 38. Adamson R.R. Co.. 1966. U.S. 819. 87 67 S.Ct. at 1679. pertinent here sacrificed.39 67 S.Ct. 91 L.Ed. Cardozo, speaking legisla- Mr. Justice concluded from his studies of the history Court, to trial tive declared: Fourteenth “The Amend- prosecu- immunity designed from and the ment that the amendment wás o,f except Rights specifics of an indict- make the tion the result the Bill of very totally applicable es- not of the ment . . the states. Other liberty. justices, Douglas, especially of ordered sence a scheme Mr. Justice so majority Court, would narrow New but never have agreed provincial that a fair as to maintain position.40 Many with his con- enlightened justice system would stitutional scholars who studied the ” impossible . . subject . agree without them. depth be do not Mr. with 325, (Emphasis supplied.) at U.S. reading legislative 302 Justice Black’s of the not- Palko, it should be history.41 at 152. 58 S.Ct. liberty” ed, the “ordered with dealt regardless years, however, Over the of procedures. It of should context criminal Baltimore, Twining Barron v. v. New rejected decision be noted that also Jersey, Connecticut, Palko v. and Adam- propounded doctrine Mr. Justice Black, specifics California, of the Bill son v. that of Court has Rights must absorbed whole. guarantees be held most of of the of Bill Rights requirements to be due of notably Black, in his dis- Mr. Justice reaching process.42 California, 1947, In 332 result in Adamson v. sent Fairman, incorporation the Fourteenth does not so thesis. Does 39. “Selective consistent, Incorporate clearly overruling of require the Bill Amendment Original Understanding, Rights? 2 reaffirmed, unanimous and almost often (1949). nearly also com- jurisprudence a a for 5 of the Stan.L.Rev. corroborating panion years. not Fairman’s it And since does article hundred Morrison, findings. absorption the Fourteenth the whole Does of involve automatic Incorporate incorpora- Rights, the Bill of Amendment Rights? the Bill of selective of Interpretation, abandonment, regards permits 2 Judicial tion study provisions (1949). states, Fairman’s of 140 or more Stan.L.Rev. of one subject may Rights im- be to the criticism Justice seems less Bill the portant Duncan, belatedly say, pointed out be Black and would too onerous — ‘History’ provision “Professor Fairman’s seventh dated said, very heavily requiring not in civil on what lies amendment a controversy importantly, men ex- . and most the value in . . where cases actually Henkin, sponsored twenty the Amendment “Selective dollars.” who ceeds Incorporation” 165, Congress.” at 88 Amend- 391 U.S. in the Fourteenth in the (1963). ment, 74, In Duncan Justice at Yale L.J. 1455-1456. 73 76 S.Ct. Stewart, dissenting Harlan, Justice with Douglas, Murphy, Black, 40. Justices study legisla- accepted Fairman’s Adamson, supra. Rutledge dissented history. Frankfurter After Justice tive Although Douglas concurred Justice published bench, he retired from again in in Adamson and Justice Black incorpo- restating paper his on views Roohin, position not his Frankfurter, Memorandum ration. history. legislative Concurring based Rights “Incorporation Into the Bill of 1952, Calfornia, in Rochin v. Fourteenth Clause of the the Due Process 183, 179, 205, 213, 165, 96 L.Ed. S.Ct. 72 Amendment”, Harv.L.Rev. 746 78 respect to the Fifth he stated with requirement it “If Amendment: is Chicago, Chicago, v. B. 226, R.Q. 42. See & Co. process for trial in the federal court- due 581, 1897, 41 L.Ed. 166 17 S.Ct. U.S. say house, impossible for me to is Kansas, 1927, 979; U.S. Fiske v. process requirement it is of due 1108; Mapp 655, 380, L.Ed. 47 S.Ct. in the a trial state courthouse.” 643, Ohio, 1961, 81 S.Ct U.S. v. Hogan, Malloy 1081; leading study depth leg- v. In the L.Ed.2d history 12 L.Ed. Amend- 84 S.Ct. islative Fourteenth U.S. Wainwright, 1963, incorporation 653; ment as it relates to of the 2d Gideon 799; amendment, Rights 9 L.Ed.2d S.Ct. Bill of the au- U.S. Carolina, Klopfer U.S. thor concluded that whelmingly” record “over- North 1; re L.Ed.2d refuted Mr. 87 S.Ct. Justice Black’s experimentation particular states in their characterized Court has procedural processes. guarantee question as one of There less “ language liberty principles reliance on the literal ‘fundamental Rights. specifies of all Bill is in- justice lie of the at the base 43”; conceivable, example, political in 1972 institutions.’ our civil and prosecution jurispru- Court should hold that system of our “basic grand jury; concept must indictment of ;44 “implicit dence” prosecution on half of the states Anglo-American] liberty”,45 allow ordered Jury information. in criminal cases American scheme “fundamental that, necessary only in were justice.”46 emphasis on Ameri- —but court, tried in a federal would justice represent can scheme seems Amendment’s come within the Sixth Bill a shift the notion from guarantee. Louisiana, Rights Duncan v. part fundamental 145, 88 L.Ed.2d could be no civilized without which there however, Constitution, does 491. The system justice. not so The shift distinguish pet- theory serious and between much Justice Black’s toward determining Rights ty Moreover, offenses. incorporation Bill total petty offense offense of whether is a Fourteenth into the constitutionally may with- be tried or toward Mr. Brennan’s 1791 Justice penalty severity out a as theory incorporation. is a of selective act recognition well as the moral character of the pragmatic shift toward should be considered. system is what fair trial in the kind of developing and and for now here As Mr. Justice White made clear joints play Louisiana, procedural “proc- Duncan There v. future. 257, 1948, 364, Oliver, Forte, 1968, 333 68 S.Ct. U.S. De 392 U.S. 88 S.Ct. Texas, 499, 682; 2120, 1154, L.Ed. Pointer v. 20 L.Ed.2d Justice Harlan’s 92 1065, 400, majority respond- 1965, opinion 13 U.S. 85 S.Ct. refers to the 380 Texas, 1967, 923; Washington ent’s, v. Amend- L.Ed.2d “Fourth Fourteenth 1920, 14, rights” L.Ed.2d 87 18 ment 388 U.S. S.Ct. thereafter refers to exclusively. Fourth Amendment In Board Allen, 1968, v. 392 U.S. Educ. Cushman, Incorporation, See Proc- Due 1060, 236, 1923, 88 20 L.Ed.2d S.Ct. Rights, Corn.L.Q. ess Bill of 51 and the majority opinion Justice White (1966) ; Rights Lacy, Bill 467 question whether formulated the Fourteenth Amendment: was “in state law under review con- Absorption Doctrine, 23 Evolution flict with the First Fourteenth Mary ; (1966) William & L.Rev. 37 York, In v. New Amendments.” Sibron Incorporation” Henkin, “Selective 1968, 40, 1889, 20 392 U.S. 88 S.Ct. Amendment, Fourteenth Yale L.J. 74 73 917, Chief Warren said L.Ed.2d Justice Fairman, Does the Fourteenth : presented “questions the case under Incorporate Amendment Rights? the Bill of Amendments,” the Fourth and Fourteenth while, Understanding, Original 2 Terry Ohio, in the related case v. especially Stan.L.Rev. 5 1968, 1, 1868, L.Ed. 88 S.Ct. 20 U.S. Justice Harlan’s dissent v. Duncan 889, to 2d the Chief Justice referred Louisiana, 1968, 145, 162, 391 U.S. 88 S. Amendment, ap- “the Fourth made 1444, 20 L.Ed.2d 491. See also arti- Ct. plicable the States the Fourteenth.” to exchange cles cited in fn. 41 and the Fairman, views between Professors Crosskey 45, Alabama, 1932, 43. Powell v. 287 U.S. 22, 21 and volumes U.Chi. 63, 67, 55, L.Ed. 158. 53 S.Ct. (1953-54). L.Rev. 1968, 514, Texas, In 273, Powell 392 U.S. 257, Oliver, 1948, In re 333 U.S. 2145, 1254, 88 S.Ct. L.Ed.2d Justice Eighth 507, 499, 92 L.Ed. 682. 68 S.Ct. opinion Marshall’s refers “the Connecticut, 1937, U.S. 45. Palko v. applied to Amendment as the States 152, 319, 149, L.Ed. 58 S.Ct. Amendment,” through the Fourteenth 288, 292. opinion while Justice Fortas’s refers Louisiana, Eighth Amendment, ap- 391 U.S. 46. Duncan v. “the made 1444, 1447, 145, 149, plicable through L.Ed.2d 88 S.Ct. States 491, 496. In Mancusi v. Fourteenth Amendment.” finger imaginary point. vital In and theoretical Duncan he esses are not observed, history, systems” had and the “Neither nor schemes but actual sense, using given supports kind of issue is Fourteenth “whether [the] today] put system a Amendment in a con- states [we straitjacket respect particular procedure fundamental— stitutional whether, development is, procedure is neces- their own adminis- regime Anglo-American sary tration criminal or 391 U.S. civil law”. Dissenting liberty”. at at fn. 88 S.Ct. at ordered Williams, criteri- at 1448. Justice White’s Justice Harlan declared that 88 S.Ct. major on is one that common-law “we first at- embraces “the now witness system developing tempt wriggle con- free ‘strait- has been of that England temporaneously jacket’”. in this at at U.S. S.Ct. country”.47 Florida, In Williams many Williams, Duncan, Mr. 26 L.Ed.2d 90 S.Ct. leading involving in- selective decisions writing White, again Justice applicability corporation or selective panel Court, “the 12-man held that eight specifics of first amend- by jury’ necessary ingredient of ‘trial rights ments or to related to substantive refusal Florida’s] and that State [the procedures pur- cases. criminal “The provided impanel men than six more pose jury trial, Court] as [the peti- not violate Florida law did Duncan, prevent oppres- noted in is to ap- tioner’s Sixth Williams, sion the Government”. through the Four- plied to the States put at his U.S. at 1905. The Harlan teenth”.' Mr. Justice discussing applicability in the context of the but is fundamental processes criminal maintained Amendment of the Sixth States cases, jury American in criminal the Coui't States. trial Louisiana, 149, fn. at Duncan v. 391 U.S. said: applying at 88 S.Ct. 1447-1448. one sense recent cases eight Again, provisions Amendments the first Connecticut, represent approach [v. In neither Palko new to the States “incorporation” 82 58 S.Ct. Earlier 302 U.S. debate. Snyder asked, having Massa- [v. nor 288] L.Ed. chusetts, 1934, can be seen as Court par- inquiring 54 S.Ct. 291 U.S. whether some when into jury procedural safeguard trial ac- 674] L.Ed. was was 78 ticular quired system tually although issue, State, both at of a if a civilized asserting important imagined dicta would not accord contain could be protection. particular is not essen- . . may liberty hand, dis- ordered and recent on the other tial regardless proceeded assumption pensed upon the States the valid processes Amend- and Fourteenth state criminal are of the Sixth observations, though imaginary these theoretical schemes but ments and systems virtually every weighty respectable, bearing neverthe- and are actual holdings unsupported by sys- dicta, in less characteristic of the common-law developing contempo- a de- refuse that a State tem that has been this Court raneously England trial when in in for a and this coun- fendant’s demand try. question charged serious crime. whether he is with a thus given system particular Perhaps this kind because the directly stake, procedure whether, the Court’s at was fundamental — is, procedure necessary in Palko that Anglo-American remarks about Snyder past regime current of ordered lib- took no note trials, erty. developments regarding jury did ... each of these de- Of functions, pro- purposes and not consider its terminations that a constitutional attempted inguiry originally it into how well vision written to no bind performing job, and did not dis- its Federal Government should bind the was might possible distinctions between civil as well it be said that cuss sup- (emphásis question the sarily neces- and criminal cases. plied) limitation is not every fundamental to fairness system might imagined at 1450. criminal 391 at 88 S.Ct. purpose procedure its serves different the first half utility century is far en- more controversial.48 It seventeenth would be fastened joyed prestige upon jurisprudence less than like the criminal American English straight today enjoys jacket, 1791 and be unloosed That, prestige England, except little or no constitutional amendment. strictly types Matthews, a few said Mr. Hur- defined Justice cases. [in deny every quality “would be to tado] We conclude our review from age, of the law but its and to render law that incapable progress improve- it Rights examined each claim to a Bill of at ment.” U.S. at 29 S.Ct. guarantee on its own merits. The exist- ence evi- dence that in suits at continued, Justice Matthews suits, common but not other stamp upon “It our would be process federal essential unchangeableness jurisprudence the at- adoption courts. But of the Four- tributed to the laws of Medes teenth Amendment did not mechanistical- at at Persians.” 4 S.Ct. ly ap- make the Seventh Amendment

plicable Moody to the States. As Justice Moody expressions of Justices These put Twining: it in Mr. and Matthews are consistent with however, follow, approach Williams. does not that a Justice White’s procedure English They un- Marshall’s settled in law at attuned to John are brought forgettable emigration, must never time of words: “We forget country practiced our constitution we is a Maryland, ancestors, expounding.” is an essential element of McCulloch v. so-, U.S.) 316, 407, process (17 due 4 L.Ed. 579. of law. If that were Wheat. (1965) ; particularly Considered, appraisals 48. For critical 51 A.B.A.J. Jury see, g. Summers, Civil Merits of in civil e. actions Some Sarpy, (1964) ; Frank, Trials, Law and the Modern Mind Tul.L.Rev. 170- (1930) ; Frank, Juries, Eventual Their Decline Courts on Trial Civil (1963) ; (1949) ; Lummus, Loyola Fall, L.Rev. Civil Juries and the Delay, ; Thoughts Hogan, in Civil Law’s Zeisel, on Juries 12 B.U.L.Rev. 487 Some (1964) ; Delay Buckholz, Cases, Har- Kalven A.B.A.J. & Rights (1959) ; Peck, lan, the Consti- Bill of 71-81 Do Juries Tamm, (1964) ; Delay (1956) ; tution, Justice? A.B.A.J. 919 18 F.R.D. 455 50 Desmond, Proposal Juries in Five-Member Civil Juries Civil or Cases—Yes A No?, Courts, (1964) ; 162 A.B.A.J. 47 50 J.Am.Jud.Doc. 219 in the Federal Development Cong. Digest White, Origin (Aug.-Sept. 1971). (1964) ; and by Jury, Zeisel, 8 'See also 29 Tenn.L.Rev. Kalven & Ameri- The of Trial Jury Jury System (1966) ; Sidgwick, (1961) Federal ; can Ele- The The (4th 1919) ; Report ments of Politics of the Judicial Conference 498 ed. Courts — Jury Hood, Operation Right, A New Fundamental 16 La. on Committee ; seq. (1960) (1968) ; Pound, System, Bar J. et 233 Law in Books 26 F.R.D. by Action, Am.L.Rev., 44, p. Holtzoff, in Trial and Law in Modern Trends v. ; (1959) (1910) ; Sunderland, Verdicts, Jury, 12 Lee L.Rev. 27 16 & Gen- Wash. Jury Trial, Special, L.J., p. Palmer, 20 eral and Yale v. On Trial: (1920) ; ; McLaughlin, Wigmore, Program (1956) Needed A for the F.R.D. 65 System, Jury Jury Trial, J.Am.Jud.Soc., Improvements Trial of a v. to our Judge- 12, p. ; (1929) ; Green, Judge (1951) Rossman, The and F.R.D. 481 Courts, Jury (1930) ; Curtis, Jury Relationship Judge in the State The Trial and Green, Jury, ; Vand.L.Rev., (1952) ; (1943) p. L. . . v. 3 F.R.D. 98 Joiner, Wyzanski, Judge’s Jury (1930) ; Judge Civil A Trial Freedom and and Jury (1962). Responsibility, Harv.L.Rev., 65, p. An exten- v. Justice Hearing (1953) ; by Jury ; bibliography Devlin is found Trial sive Investigate Williams, (3d ed. to Proof of Guilt Before Subcommittee 1963) ; Rashkow, Jury: Internal Se- of the Abolition of Civil the Administration curity Proposed Alternatives, on the Senate Committee 15 DePaul L.Rev. Act of pp. Cong., Sess., (1966) ; Jury System Kreindler, Judiciary, 1st 84th Misconceptions (1955). in Tort Cases: Some 63-81 IV. LINE OF DEVELOPMENT common law—Mr. Justice Cardozo’s especially pertinent: words Pallco are A. The limitation of the Seventh provincial would “Few so narrow or to suits at common enlighten- to as maintain that a fair thereby eliminating trials in suits impossible system justice ed would be equity admiralty, is in itself evi- by jury]”. without [the historically dence that the Framers con- sidered a trial could be had without fair the civil B. The encroachments groups broad cases. by of cases classification occasioned law” at common as outside “Suits Equity often cases involve issues category en has exceeded similar tried common those brought total aboli croachments about actions, example, cases in which jury. This occurs tion of the civil sought performance specific the relief specialized administrative damages. contract, of a Thus, the types agencies in certain well as presence in common law suits despite the com defined statute history, is based on an accident of Mr. suits of the be mon law nature of some respect 12- Justice said White with agencies covered fore the courts jury, rather than a rational distinc- man legislation. Labor Re The National juries tion merits of based Court,50 Board,49 Tax lations difference between co3nmonlaw Office,52 Claims,51the Patent equity. Consider the serious con- Commis and the Interstate Commerce sequences equitable of an decree. Failure judicial quasi-judicial de sion make comply injunction subjects with an jury. un terminations Suits without again jail to a contemnor sentence— der Act54 Federal Tort Claims deprivation jury. without a liberty This jury, as are di are heard without a by jury is a result without compensation actions,55 vorce claims,56 workmen’s important more the individual and gove against state damages. and claims society judgment than a Bankruptcy rnments.57 equity The National The line and suits between suits Long Act,58 Act,59 and the Tucker at common law has often been difficult draw, shoremen’s and Act60 Harbor Workers’ and it often been drawn provisions. derogation do not Obviously, trial. include James, Right Jury many heard Trial Civil of the eases Actions, (1963); many claims these Yale L.J. 655 tribunals and 7& Karlen, legislation under not “suits “Can a Abolish the Civil are State Jury?” (al at common 1791 sense 1965 Wisc.L.Rev. law” When, though literally, therefore, are) es- we deal with the some are ingredients today— process sential of due covered Amendment. the Seventh We ingredients process, not the of a trial at however, due concerned, seq.; Washington, 49. 29 151 et v. U.S.C. NLRB 56. Mountain § Timber Co. Laughlin Corp., 1937, Jones & Steel 61 L. 37 S.Ct. 1, 48-49, 685; White, 57 S.Ct. L.Ed. Ed. R. R. Y. Cent. Co. N. 247, 1917, 188, 893. 61 243 L. 37 S.Ct. U.S. 667; Ed. R. R. Co. v. Grand Trunk W. 50. 26 § U.S.C. 7403. 167, Comm., 125 Industrial 291 111. N.E. 2505; (1919) ; 51. 28 Cunningham U.S.C. v. § Northwest 748 v. Sherwood, 1941, 584, 180, Improvement 312 61 Co., S.Ct ern Mont. 119 44 . 767, (1911) 85 L.Ed. ; 1058. Iten Biscuit P. 554 Adams v. (1917). Co., 52, 63 Okl. 162 P. 938 52. 35 § U.S.C. 23. g., Maloney State, See, 57. e. v. 207 Misc. 53. 49 § U.S.C. 17. (Ct.Cl.1955). 894, 141 N.Y.S.2d 207 2402; 54. 28 see § U.S.C. United States Sherwood, 1940, v. seq. 312 U.S. 61 S. 58. 11 1§ U.S.C. et Ct. 85 L.Ed. 1058. 59. 28 1346 and 2402. U.S.C. §§ See, g., McLachlan, 55. e. McLachlan Cal.App. 106, seq. 101 281 60. 33 U.S.C. § P. 901 et 1042 twelfths,64 jurors.65 majority right trial or a e. to a

i. whether Minneapolis R. Co. Ameri See St. L. R. civil fundamental & cases is Bombolis, system justice. 211, 36 S.Ct. The con can civil thirty-seven Congress At and of state 60 L.Ed. least scious decision legislatures preclude for cer states have in manner and some to omit legitimized juries right assumptions of less tain cases and the sustaining jurors;66 judicial than the traditional twelve decisions underlie juries require creating areas three new while states omissions our reduced size.67 reinforce where is absent is not belief that rule Numerous district essentia] ingredient process. of due jurors in order have fixed the number of courts, tradi- some civil at less than C. In federal where (See B.) guaranteed Appendix tional twelve. civil cases is Amendment,61 addition, parties may stipulate the Seventh many jury in federal court. See F.R. has been reduced state courts severely 48. Rule of the Federal Rules The verdict of civil Civ.Pro. 38 undercut. longer provides of Civil that failure be unanimous Procedure need no many A be rendered to demand trial constitutes waiver states. verdict three-fourths,62 five-sixths,63 legitimize jury ten- and would seem to waiver process ; (1947) 49§ 105 ch. 61. We assume due would not Ill.Ann.Stat. (Smith-Hurd require 1935) ; 2-§ it Ind.Ann.Stat. more of the courts than state although (1933) ; Ann. Iowa Code 603.34 § does of federal courts 2001 might conceivably require gen- (1950) ; 20-812 § less. Kan.Gen.Stat.Ann. See ; by Jury (1949) Ky.Rev. Lumbard, erally, § 29.015 Trial Stat.Ann. Speedy Justice, 544; (1955) ; Mich. Wash. & Lee of Proc. 28 L.Rev. Md.Rules (1948) ; (1971) ; Holtzoff, Comp.Laws 730.23, 309 Modern Trends §§ 730.267 (1957) ; by Jury, L.Rev. 488.21 Miss. § Trial 16 Wash. & Lee Minn.Stat.Ann. (1959) ; (1956) ; Karlen, Abolish Mo.Ann.Stat. 27 Can A State Ann. 1836 Code § Jury?, ; (1952) Ann. 1965 Wis.L.Rev. 103 Mont.Rev.Codes Civil 512.310 § (1965). (1947) ; Neb.Rev.Stat. 26- § § 93-1205 (1943) ; 16.030 Nev.Rev.Stat. § 183 (1956) ; 21-102 § Ariz.Rev.Stat.Ann. 4:49-l; (1957) ; N.M.Stat. N.J.Rules Ky.Rev.Stat.Ann. Const, ; (1963) 29.015 Ohio § (a) (1953) ; 21-1-1(48) N.Y. Ann. § 5, Implemented 1 Ohio § art. 230; § N.C.&en.Stat. § Justice Ct.Act (Baldwin 1964). Ann. § Rev.Code 1901.24 (1953) ; 33-07- § N.D.Cent.Code 7-152 2, Implemented (1960) ; art. § 63. N.Y.Const. § Rev.Code Ann. Ohio (McKin- ; 1957) (Page R. 4113 N.Y.Civ.Prac.Law Okla.Stat.Ann. 1901.24 ney 1963). (1951) ; § Ore.Rev.Stat. § tit. (1953) ; § tit. Pa.Stat.Ann. 17.105 art. § 64. Mich.Const. (1952,) ; (1930) ; § 15-618 S.C.Code (Civ.R. 48; Del.Super.Ct. Md.R. art. 2191 Vernon’s Tex.Rev.Civ.Stat.Ann. 544; and Rules Gov- 449-1 Proc. N.J.R. (1925) ; tit. § Vt.Stat.Ann. erning of New 2.36.050, of the State The Courts ; (1959) 4.- §§ Wash.Rev.Code Jersey ; 1:8-2. (Supp.1956) Ann. W.Va.Code 44.120 Jury Lumbard, Trial (1955) ; See also 270.15 § Wis.Stat.Ann. § 5000 Justice, Speedy Lee L.Rev. Wash. & Wyo.Stat.Ann. (3) (1957) ; 1-552 § O’Quinn, ; (1971) & Let’s Kronzer (1957). Majority Rule Civil Return Jury, Wiehl, also Six-Man (1970) ; Jury Cases, 8 Hous.L.Rev. Tamm, Gonzaga L.Rev. Zeisel, were . And Then There . Proposed Jury: A Civil The Five-Man the Federal The Diminution None: Amendment, 51 Geo.L.J. Constitutional (1971). Jury, U.Chi.L.Rev. 120, 137 (1956) ; Ark. 21-102 66. Ariz.Rev.Stat.Ann. ju- (six (1943) § 54.14 ; Fla.Stat.Ann. (1947) 67. Cal.Civ. § Stat.Ann. 26-608 Const, (eight I, rors) ; art. 10§ Utah (1958) ; 194; 51-133 § § Colo. Proc.Code (seven jurors) ; 8-193 § Ann. Va.Code (Civ.) 48; Ann. Del.Super.Ct. R. Ga.Code jurors). ; 2- Ann. § Idaho Code 6-403 §

1043 Finally, category in civil cases.68 Rule allows crimes, 53 is a sometimes refer- “petty” offenses, certain cases and certain issues to be red to as which do not jury. jury require despite heard a master rather than a trial at all the Su- preme pronouncements ju- Court’s that a An D. examination of ry required trial in criminal cases is inquiry. our criminal cases is relevant to process.72 due course, can, A distinction be drawn right theory, trial in crim- way- between the to a In practice, if right in cases. In inal cases and the ward minor in Juvenile Court is not in liberty strange accused split person- criminal a criminal court. A zealously stake; protect ality juvenile is at exists decisions on the incarcerating Gault, 1, freedom of the accused 1967, courts. re 387 U.S. 87 527, him if finds his conduct 1428, replete a S.Ct. 18 L.Ed.2d right reprehensible. language necessity can nec- No similar about the essarily guaranteeing process rights juve- case be- be inferred a civil due only prop- party party Yet, Supreme tween where niles.73 when the Henderson, erty ju- presented question stake. at See with the of a Amendment, Background right trial, of the Seventh venile’s the Court (1966); Karlen, Can process require 80 Harv.L.Rev. 289 held a that due did not Pennsylvania, a 1965 Jury?, State Abolish the Civil trial. McKeiver v. (1965). 1976, 540, Wisc.L.Rev. 103 1971, 1984, 528, 403 U.S. 91 S.Ct. holding 29 L.Ed.2d This viv- 647. previously noted, As idly illustrates fact that the approved juries of than Court has less trial is not so “fundamental justice” twelve in state criminal cases. Wil- American scheme of to be 1970, 78, Florida, liams 90 v. 399 U.S. quired times, form, at all a certain 1893, L.Ed.2d Two states S.Ct. 26 446. types in all of cases. allow convictions crimes for serious although jury,69 examples less a unanimous than These from the criminal area constitutionality provisions of these demonstrate that a considered still doubt.70 Several other states “fundamental” be modified or abol- altogether. allow criminal verdicts for offenses be- ished Even if we were grade felony rendered low the by to be decide that the to a jury.71 proc- There requirement less than a unanimous of due cases is (d) party 1969-70), 21, (1958); Waiver. failure of Tex. tit. 10§ Const, required by 5, 13, serve demand as this rule art. Vernon’s Ann.St. § Const, required by 5(d) 1, and to file it as Rule 7.§ Idaho art. him constitutes waiver of trial Louisiana, 1968, 391 72. See Duncan v. jury. A demand for trial made 491; 1444, 145, 20 L.Ed.2d 88 S.Ct. U.S. provided may as herein not be with- Taylor Implement Mfg. Co., Dyke v. par- drawn without the consent of the 1472, 216, 1968, L. 20 88 S.Ct. 391 U.S. ties. Illinois, 1968, 538; 391 Bloom v. Ed.2d 38(d) ; Capital Fed.R.Civ.Pro. Trac of. 522; 1477, 194, L.Ed.2d U.S. S.Ct. Hof, 1899, 1, tion Co. v. 19 S. U.S. Schnackenberg, 1966, 384 U.S. Cheff v. 580, Ct. 43 L.Ed. 873. 629; 1523, 373, L.Ed.2d S.Ct. York, 1970, 399 U.S. New Baldwin v. 7, 69. La.Const. § 41: La.Crim.Proc. art. 437; 1886, Frank 66, 26 L.Ed.2d 90 S.Ct. (West 1967). Code Ann. art. 782 Ore. 147, States, 1969, Const, 395 U.S. v. 11; United 1, art. §§ Ore.Rev.Stat. § 1503, L.Ed.2d 162. 136.330, (1967). S.Ct. 136.610 1948, Haley Ohio, 332 U.S. v. also Louisiana, 5161, prob. 70. Johnson v. No. Gallegos 224; 302, 596, 92 L.Ed. 68 S.Ct. juris, 144, 900, noted, 400 U.S. 49, 1962, Gallegos, 82 S.Ct. 370 U.S. v. (1970) ; Apodaca L.Ed.2d 137 v. Ore 27 gon, 325; 1209, Kent L.Ed.2d 5338, granted, cert. No. 400 U.S. 1045, 541, States, 1966, 86 S.Ct. 383 U.S. 145, L.Ed.2d 138 91 S.Ct. Brainard, 84; DeBacker L.Ed.2d 24 L. 90 S.Ct. § Mont.Const. art. Winship, 148; In re Ed.2d Okla.Const. art. Okla.Stat. § 25 L.Ed.2d (Supp. 958.3, 90 S.Ct. 958.6 §§ Ann. tit. 1044 making

ess, the Louisiana modification of that the state court had erred in alleged necessarily right jury’s find- would not a further examination ings. Rogers constitutionally R. impermissible. The also Pac. R. v. Mo. 443, challenged 1957, 1 Co., 500, Louisiana statutes here can 352 77 S.Ct. U.S. or arbi L.Ed.2d under Federal not be trary”, “unreasonable 493. considered Suits light Employers’ Liability the historical ori Act of course gin development at Sev- of the cases “Suits common law” so the line of involving jury. applicable enth even Hardware Amendment is not Glidden, court, a federal the FELA does not Fire Co. Dealers Mutual Ins. v. 151, 69, jury 1931, require has 158, 76 Yet the 52 S.Ct. trial. Court 284 U.S. guaranteed 214, held that L.Ed. 219. trial is when suits under that act are filed state language Supreme E. There court, appellate and state na- opinions Court about the fundamental findings. same re-examine pre- ture of the Supreme applied rule has been sumption in civil in favor of the Court to suits in state court under 1942, York, 315 eases. See Jacob v. New Inspection Jones and the Boiler Act 752, 854, L.Ed. 1166. S.Ct. 86 U.S. 62 Although clearly Act.77 these cases are has the class Court broadened distinguishable from the cases at bar jury trial exists cases and issues where federally-created involve right74 fed- as of held argue court, upon in one sued state could applies policy favoring eral tradition” the same “common law though diversity state cases even Amendment embodied the Seventh deny jury trial.75 A courts would require jury trial which has been used Supreme indi- Court cases line of cent statutory should these causes action tendency part of the Court cates a applied trials. to all state court civil apply principles of the Supreme Court But another line of to state civil cases.76 Co., by a facts R. R. cases has re-examined jury found Ohio Gallick v. Baltimore & despite 1963, L.Ed. state courts the “common 659, 9 108, U.S. 83 S.Ct. 372 favoring jury 618, petitioner law tradition” 2d obtained against despite involved the fact that the cases state in a suit verdict in court York Employ- In New “Suits at common law”. employer under Federal his 1964, 254, Sullivan, 84 appellate 376 Liability Times v. U.S. The state ers’ Act. 686, 710, petitioner finding evi- 11 L.Ed.2d “no direct reversed, S.Ct. court negligence. received sued for libel in state court and After the state dence” of review, the state supreme After favorable verdict. refused affirmed, Su- granted appellate certiorari courts had Court granted preme certiorari to deter- the state to consider whether press jury’s speech limita- and free “improperly invaded the mine free court had brought by public libel that there tions on actions held function”. The Court go a federal fashioned officials. evidence to sufficient Westover, 1959, the mate 76. discussion of For an extended See Beacon Theatres v. follows, see, Hood, 948, 500, A New 3 L.Ed.2d rial U.S. S.Ct. Right, 988; Dairy Wood, 1962, La.Bar J. v. Fundamental Queen 44; (1968). 894, 469, 8 L.Ed.2d U.S. 82 S.Ct. McCold, Procedural Reform and Dredging See, g., LaCrosse e. Senko v. Study Right Jury A of Beacon Trial: Corp., S.Ct. Westover, Theatres, Inc. Penn.L. 404; Terminal Harsh Ill. L.Ed.2d Rev. 1 Co., 1955, S.Ct. 348 U.S. R. R. Kurn, 736; Byrd Ridge L.Ed. Lavender v. Rural Electric v. Blue 90 L. Coop., 1958, 66 S.Ct. 327 U.S. 78 S.Ct. 356 U.S. Connor, 1963, 953; Simler v. L.Ed.2d Ed. 221, 83 9 L.Ed.2d 1045 implicit requiring concept order so erty “actual malice” in the of ordered lib rule recovery Al- cooperative actions. in a to though in such federalism as to be allow required process on a tech- the case was reversed the states due . assuming that, the Court further charge, defect in the We hold the nical . jury . required the to a went on to “review evidence trial is due to tionally could constitu- process, determine whether it Louisiana does scheme judgment respond- support destroy right, a it but modifies in ac that 284, 728, many and procedures 84 at ent”, U.S. at S.Ct. cordance 376 with fair proof presented analogous procedures “the which are concluded estab convincing actual malice lacks the in the show clarity lished Federal Rules Civil Pro constitutional

which the standard cedure. and not con-

demands, hence would it stitutionally judgment IV. RE-EXAMINATION OF FACTS sustain spondent proper rule of law.” under the A. leads us consider This 285-286, The at at 729. 376 Supreme 84 U.S. S.Ct. whether trial without re-examina applied neither the Gal- principle embodied in tion facts—-the lick rule nor the “common law tradition” Amend the second clause of also re-examined the facts.78 See but ment—is so Ameri fundamental to the Walker, 1967, 388 Associated Press v. justice can scheme a constitute 1094; 130, 1975, L.Ed.2d U.S. Time, 87 S.Ct. 18 necessary ingredient process. of due We Hill, 1967, 374, 87 Inc. v. U.S. 385 ever-changing hold, in na view 534,. 456; 17 L.Ed.2d Rosenblatt S.Ct. judge-jury func ture of division of 1966, 669, Baer, 75, 15 S.Ct. tions, principle embodied L.Ed.2d clause of the Seventh second Much favorable written, F. has been required proc is not of the States due jury.79 unfavorable, The about the ess. question not should this Court is before at the time of earlier, As noted a trial but rather state abolish Amendment, passage of state the Seventh constitutionally it so. If could question do practices varied as performing well “how [is] court-jury In functions.82 trial succeeding years, Louisiana, (Duncan job” 1968, 391 its judge-jury rela- 145, 1444, 155, 1450, 20 U.S. 88 S.Ct. changing in tionship constantly has been 491) relevant,80 point need L.Ed.2d we courts in and state federal courts delay in the civil to the monumental diminishing role direction of judges, system, court the wasted time jury as finder of fact. jurors, litigants, ex- as well as Procedure Rules of The Federal Civil pense, many have eval- discussed who many examples. For in- contain such jury system.81 uated the civil judge on stance, the trial Rule 59 allows summary, parties, a Fed.R.Civ.Pro. adhere to motion of we initiative, pragmatic that, 59(a), approach Fed.R. absent “total or on his own grant 59(b), trial. This a civil a new incorporation”, Civ.Pro. opinion that “on the 78. The also be read as find estimates could Professor Kalven per ing average be 40 insufficient evidence as matter of trial would bench consuming law. than less time cent yet the same case” concludes: footnote 48. against is that If case efficiency dis rem- 80. Duncan considers both is to be considered its abolition prop- petty congestion, tinguishing edy then from those re offenses for court congestion jury trial, topic quiring and what at er U.S. explaining inap about it. done else can be S.Ct. plicability Snyder, of Palko and U.S. Background Henderson, 82. See at S.Ct. Amendment, Harv.L.Rev. the Seventh Federalist, Hamilton, (1966) ; Dignity Kalven, see 81. But Jury, Nos. 50 Va.L.Rev. Civil granting 50(c). grant Before fied Rule power a new .trial includes the weight motion, appellate court must against such verdict when “the [is] Montgomery Black & re-examine facts. Justices Ward of the evidence.” commented, Douglas extent “To Duncan, v.Co. Al- are to be set aside verdicts L.Ed. those granted, to new trials we believe though whether the determination evidence, judges, the trial grant often who hear the reason is for this a new trial primarily exer- law”, must are the ones who should “question it denominated a cise such discretion”.84 necessarily a reassessment involve grants too, a trial court when facts. So verdicts, Finally, special Rule 49 see notwithstanding judgment a motion for (a) general accompanied , and verdicts 50(b), on verdict, Rule under Rule 49 interrogatories, answers to see insufficiency of the evidence basis of (b) judge , involve into inroads Montgomery Dun- (see Co. v. Ward & Doug- jury Black and function. Justices necessarily re-exam- involve must can), it have said: las “legal” na- despite the of facts ination ancient, rea- fundamental One of Further, presented. question ture having general jury verdicts sons grants appellate a motion court when an right preserve trial was to notwithstanding ver- judgment indispensable part a free an Neely Mar- (see v. after trial dict government. Many fa- of the most 1967, Co., Eby U.S. tin K. Constr. controversies mous constitutional 1072, 75) 317, L.Ed.2d 87 S.Ct. litigants’ England in- revolved around ruling issuing delayed technically sistence, particularly libel in seditious verdict; yet motion for directed right ren- had the to that a necessarily ruling fact involve must being general der a verdict without examination. compelled of sub- to return a number general findings sidiary support its may to 50(a), judge Under Rule English jurors verdict. Some had grant verdict a motion for directed go upon jail insisted because jury”. Be- assent of the “without general verdicts their to render granting motion, judge fore such a tyran- repeated over the commands or absence must examine the facts judges Rule 49 is nical not to do so. jury. Black and Justices facts before Douglas by courts means utilized another part but provision have called this power of to juries the constitutional weaken process the courts “the which judges with more and to vest wresting juries power to from according least, power very to decide cases At render verdicts”.83 scrutiny judgments. A granting their own directed of a motion for special inter- and written shifting the rogatory verdict of the court- verdict involves a jury appellate courts will in a trial. function necessarily re- show the confusion summary granting of a motion for employment of de- these from sults judgment under Rule 56 the basis of judges vices and the ease with affidavits, 56(e), see Rule makes away take can use them to judge very in a real the trier of fact by jury. that Rule 49 believe We Similarly, an order of sense. dismissal amplified. repealed, not should be 41(b) prosecute for failure seriously under Rule devices, not several There are also undermines Rules, by specifically mentioned in the power trial. The jury’s func- grant court alters the which the a motion a new trial is codi- Id. Black Statement Mr. Justice Douglas on the Mr. Justice Rules of Civil Amendments, Proposed Id. and the Procedure lxv, Jfi, 9 D.Ed.2d U.S. S.Ct. lxvi. may requirements First, judge tion. decrease reason- constitutional requiring opportunity re the verdict of able notice and to be heard. denying a mittitur as a condition of its Hardware Dealers Mutual Fire Co. Ins. v. See new Dimick motion for trial. Glidden, 1931, v. 52 S.Ct. Schiedt, 1935, 474, 55 S.Ct. 293 U.S. L.Ed. judge a trial Second, 603.86 L.Ed. prin- B. The soundness of this federal strong-arm, perhaps encourage, ciple appli- peculiarly would seem to be v. Allen reach a verdict. procedure cable Louisiana. States, 1896, United 164 U.S. unique. its this state is Nevertheless Thaggard 528; 41 L.Ed. S.Ct. lawmakers, legislative judicial, have F.2d States; 5 Cir. compromise pro- managed to work out denied cert. compatible civil- cedures with Louisiana’s (1966); United States 16 L.Ed.2d 301 heritage Anglo-Ameri- ian and with the 923; 1971, Prentiss, F.2d 5 446 Cir. concept process. ap- can of There due Williams, 5 United States v. Cir. pellate as as on review on facts well Again, judge trial 447 F.2d 894. subject require- but it is to the extent, may, on to a certain comment findings ment a factual of. Philadelphia v. United States evidence. court or the verdict of a should be Reading R. R. Co., & only manifestly they when are disturbed L.Ed. 138. 8 31 (N. Hatch, erroneous. Morris v. 2 Mart. plas- These federal rules illustrate S.) (La.1824); v. Bur- 491 Edwards jury in tic of court control roughs, (La.1845); nature 12 171 Moret Rob. notwithstanding appar- Rys. civil Co., v. N. 112 759 O. 36 So. La. language ently unyielding (1904); State, Norman 69 So.2d 120 Considering Amendment87 (La.App.1953), rev’d 227 La. 80 apply do not of the amendment (1955); Knighten strictures So.2d v. Am. Auto 858 except (1) the “selec- to the states Co., (La.App.1960). Ins. So.2d due incorporation” on doctrine based tive (then Judge) Justice Albert Tate has (2) concept process of due or appellate said: “I believe that (absent liberty” process “ordered jurispruden- must adhere the settled incorporation theory): lip-service tial rule to which at least has say procedure century paid half been and a t suffices [I] rights may precedents: that a court’s enforced Louisiana be which wrongs accepted peculiarly a sub- factual determinations should be remedied regulation review, appellate ject in the and control. absence of state neither manifest And must do so not we Fourteenth error. by jury, practical implies must be because as a matter that all trials judge guarantees any position particular is in than is form better nor procedure. to evaluate the his brethren method state credibility power must do so witnesses. We In the exercise of that may op- satisfy proper public also and efficient a state because the need, judicial system remedy adapted, in the our allots fac- best eration of choose the primarily legislative protect in- the trial judgment, tual determinations appel- judge only secondarily to the provided choice concerned, its terests public arbitrary, interest court, and late because is not unreasonable adopts procedure authoritative settlement satisfies swift and Verdict, -appel able Before Vir.L.Rev. It been contended that has may discussing late court do See Sun same. of admission rules ray Corp. Allbritton, 5 Cir. Oil evidence, nonsuit, di- and exclusion (dis 475, en 188 F.2d 187 F.2d banc instructions, spe- dismissal, verdict, rected senting opinions). verdicts, interrogatories. cial Sufficiency generally James, See Jury-Control Avail- Devices Evidence Tate, personal requires it.” or with disputes sociated with liberties at components a fair trial fundamental Observations Error —Further Manifest pro- process. in Louisi- Appellate due But the Review of Facts cedural; “inseparably Cases, connect [ed 22 La.L.Rev. ana Civil uncertainty liberty.” (1962). Prin- the existence with] of course There is Hardy, ciples of a federal- scope viable American of the rule. Rule, La.L.Rev. ism states would seem allow the Error The Manifest suggested proce- out their own has work procedures “clearly rule but not dures when those do not erroneous” preservation rule would conflict with the of ordered evidence” “substantive rights liberty. acceptable conceptually Louisiana. addition to substantive procedural A (1961). Comment, for which no substitute 21 La.L.Rev. process decision, In- v. Travelers Herbert available are within the recent due (La.App. (particular- demnity concept. 4th Co., “But trial 198 So.2d ly rigid refused, sense) 1966), 250 La. its common law writ Cir. grand indictment, the ‘in- a new basis established 195 So.2d proven remanding formation’ ease, because of desirable sub- stitute, significance” evi- should excluded be classified as what “crucial “drastically procedures are —technical in a state decision dence. This development, evolution appellate review arrested whose reduce the effects if it is ever must allowed to continue 41 Tul.L.Rev. Note, facts”. up modern catch needs of with the appellate If kind of review society aspire to needs of and serve the uncon- in Louisiana is facts that exists man.” modern Supreme stitutional, then the at the consti- look should take a second Judge and E. Gordon West dissents tutionality Rules. of the Federal date. will file therefor at a later reasons V. CONCLUSION APPENDIX A long Supreme As as declines Although pre- cases the consolidated accept incorporation the total doc- situations, for ask sent varied all factual trine, no there is rational basis as- for injunctive enforce- to restrain the relief serting jury process requires that due statutory ment state officials state courts, in common law cases state but provisions. or constitutional jury dispensed that a equity, admiralty, (the types and numerous Nine- Melancon McKeithen statutory cases Court, based Parish causes of action. teenth Judicial District Historically, Rouge) plaintiff we have seen filed demise East Baton England against property owner, and the mod- real suit firm, jury many ification al- of the civil He states and their insurers. estate today leged so that only remotely at visitor an that while a business resembles un- “open a common beaten law case. The house” he was grant stranger. verdict, trial, of a new A returned directed identified summary judgment, plaintiff judgment in the a verdict in favor of notwith- judgment standing upon $15,000 verdict other federal amount sum, procedures, analogous defend- motion of the the was On entered. granted procedure ants, judge a new Louisiana the trial review of the facts. Louisi- rights Basic trial under Article 1972 substantive Procedure,90 eight first on the inseparably ana Code Civil amendments as- upon granted, Federalist, 88. The (Hamilton). No. shall A new party, contradictory motion of Cushman, Incorporation following : the Bill Rights, judgment appears (1) 51 Cornell L.Q. Where contrary clearly evi- the law and provides ; Article 1972 that: dence ground asking “con- three-judge court verdict for a court trary appellate law and the evidence”.91 order to the the state to rein court plaintiff brought plaintiff suit in fed- state the verdict. The asking alleged empaneling deprivation rights for the eral secured three-judge court an order rein- and Fourteenth Amend stating jury judgment. The Constitution, com- ments United States alleges broadly plaint challenged specifically the Constitu- 7 29 Art. § deprive allowing tion Louisiana and laws Louisiana Constitution plaintiff secured Sev- state factual review jury.93 Amendments to the enth Fourteenth determinations of a by derogat- United States Constitution Jones v. (First Aetna Judicial District ing allowing Court, Caddo) plaintiff, Parish of jury, re-examination of found facts child, ward for a minor sued an insur- might the same result reached company ance under Louisiana’s direct under Fed.R.Civ.Proc. 59. injuries action statute for incurred in (Nineteenth In Hill McKeithen Ju an auto A accident. trial resulted Court, dicial District Parish of East judgment in a verdict and in favor of Rouge), Baton a wife plaintiff sued her husband’s $6,500 in the amount bodily injuries insurer to recover for damages; liability the issue of was ad- sustained a result of her husband’s appeal, mitted. On the Louisiana Cir- alleged operation reckless of an automo Appeal cuit Court of for the Second Cir- juryA bile. resulted a verdict cuit $3,500 award reduced the judgment $4,000. The First judgment rendered its own the less- Appeal Circuit Court of for the State of granting er amount without trial. a new Louisiana, judgment.92 reversed application An for writ of certiorari plaintiff then filed suit in federal the Louisiana Court under Art. party discovered, purpose decision, Where L.Ed. of 147. For this trial, important however, arguendo since the evidence to the the ac- we assume cause, not, which he could with due tion involved facts. re-examination of diligence, have before obtained or dur- opinion pertinent reads, The court’s ing trial; the part: plaintiff “We failed find the jury cases, provided In in Arti- proving in- her the sustain burden of cle 1814. op- juries negligent were the caused was in which she eration of the vehicle judge’s “Judgment 91. The trial on Motion judgment riding. appealed must The from reads, pertinent part: for a New Trial” Therefore, for the . . be reversed. . Court, hearing motion, The after the assigned, judgment the of above reasons being opinion judgment reversed and there the trial court Jury and verdict of the rendered here- judgment defend- herein in favor of the contrary in is to the law and the evi- plaintiff rejecting against her ant demands, dence, orally assigned: for the reasons may The at her costs.” action ORDERED, IT IS ADJUDGED merely granting judgment not- of a be the AND DECREED that the verdict of the verdict, approved withstanding in fed- Jury Judgment and the of the Court 50(b). court, see Fed.R.Civ.Pro. eral therewith, accordance rendered arguendo However, we assume shall against day the defendants on the 15th of facts. it involved re-examination of December 1965 be and the same is died, appeals set aside am a new trial All of Section granted appel- appeal in the matter. interpreted grant- jurisdiction provided His action aas in this Sec- late ing insufficiency of a new trial for tion shall be on both law and appropriate except facts, appeal evidence. Such action is is lim- where the by any questions only federal court as consistent with the Sev- enth Amendment. See Fed.R.Civ.Pro. 59 of law ited to ' this Constitution. other Section (a) ; Montgomery Duncan, Ward v. & Co. 61 S.Ct. Art. 29.§ La.Constit. plication Mayes Constitution94 for Louisiana of certiorari. writs § McKeithen, application for La. was refused.95 After an 215 So.2d plaintiffs ask three- writ certiorari to the United The a judge Supreme denied, court order reinstatement Court 19 L.Ed.2d suit verdict for reasons similar plaintiff requests previous those asserted in The cases. followed. three-judge to order Louisiana court (Nine- In Moticheck v. McKeithen grant application Supreme Court District) teenth Judicial First Cir- for writ certiorari remand Appeal cuit Court of set aside a ver- Appeal for rein- case to the Court plaintiff $2,000 dict in favor of for verdict, or order statement of the according complaint, because “the to a remittitur as an alternative disagreed court with the facts as found plaintiff this case new trial. The jury”. again alleges Fourteenth Seventh and (Civil In Davis McKeithen District specifi- deprivations Orleans) Court for Parish of challenges cally Art. Art. 7 10 and § plaintiff, children, minor on behalf of Constitution. Louisiana § sued a landlord and insurer for dam- his footnotes 93 and 94. ages resulting sustained her children Long (Nineteenth In v. McKeithen ingesting paint premises from from the Court) plaintiff District ob- Judicial awarded defendant. The $6,400. tained The verdict of damages totaling $117,500.00. The Appeal First Circuit Court Lou- Appeal Circuit af- Fourth Court isiana, plaintiff’s in the com- words firmed. of Louisi- The Court plaint, judgment “set aside because ana, question however, reversed disagreed with the as found facts fact. jury”. complaint asks Finally, in Lewis v. Ford Motor Com- three-judge panel ap- order the state (Eleventh pany Judicial District pellate jury judg- to reinstate the Sabine) sued the Parish of a widow grounds alleged ment on similar those minor chil- behalf of herself and two previous cases. dren for in an the death of her husband Mayes (Nineteenth v. Ellis Judi- automobile accident. award- parents cial Court) District two sets of damages totalling $125,000.00. ed On brought wrongful similar for the suits Ap- appeal, the Third Circuit Court of daughters deaths their caused peal reviewed facts of the case single auto were accident. suits judgment reversed the- rendered on the trial, consolidated for and a jury’s verdict four defend- as to turned $100,000 a verdict of in favor plaintiff’s application for ants. parents of the first $50,000 set of Writ Review and Certiorari parents. favor of the other The First Supreme Louisiana refused. Court was Circuit Appeal Court of reversed and judgment entered the defendants APPENDIX B re-examining after Mayes facts. McKeithen, (1968). 213 So.2d 340 courts, following district rule Supreme Louisiana ap- Court denied an order, jurors or have fixed the number of Supreme 94. Section 10. The Court has 95. The Louisiana stated: of, general ju- supervisory control Writ refused. the facts found On risdiction over all Appeal, inferior courts. we find no error cases, appellate ju- . In civil judgment. its law its risdiction Casualty extends to both Surety the law and Jones v. Aetna & Com- matters, ap- the facts. pany, 930, criminal its 250 La. 199 So.2d 926 pellate jurisdiction questions extends to only. of law . . . 7, La.Constit. Art. 10. § Employers’ Act), Liability the tra- 46 U.S.C. civil cases at than some less (Jones Act), involv- twelve: cases § ditional ing personal of real and condemnation (November 1970) 12, 1. Minnesota property power under the of eminent cases, jurisdiction jury “In all civil under domain United the laws 1332, for which 28 U.S.C. is based on § States, jury shall consist of six 688, 51, 45 U.S.C. and 46 U.S.C. § § (6) jurors.” (Effective May 1, 1971) jury shall consist members.” six (Effective (March 8, 1971) 1, 1971) January California, 9. Central 10, jury Illinois, (December de- “In all 2. Eastern cases which cases, 1970) manded in civil the cause consisting jury shall be before jury jury “In shall all civil cases the (6) (Effective six March members.” (Effective consist of six members.” 15, 1971) 1, September 1971) (March Indiana, 10, 10. Northern 21, Illinois, (January Southern 1971) 1971) jury cases, jurisdiction “In all civil jury cases, may except all “In on 28 which based U.S.C. § required expressly law otherwise (diversity citizenship controlling rule, jury consist shall controversy), amount in U.S.C. (Effective § May of six members.” (Federal Liability Act), Employers’ 1971) (Jones Act), U.S.C. § (February Florida, Southern involving condemnation of real and 1971) personal property power under the jurisdic- jury cases, “. . all civil eminent domain under laws of the upon 28 tion for which is based U.S.C. States, jury United consist of shall 51, and 46 U.S.C. 45 U.S.C. § § (6) jurors.” (Effective May 1, six jury shall tried which § 1971) (Ef- shall of six members.” consist (March 11, 1971) 11. Kansas 1, 1971) fective March except all cases, “In civil Kentucky, (February Western required expressly be otherwise 1971) rule, controlling con- shall cases, jurisdiction “In all civil (Effective sist of six members.” June which is based 28 U.S.C. § 1971) 51, and U.S.C. jury 46 U.S.C. § § (March 19, California, Southern members.” consist six shall 1971) (Effective 22, 1971) February jury is de- “In all cases in which a 1971) (February 6. New Mexico manded in trial of civil “In shall all eases consisting cause shall be before (Effec- (6) consist of six members.” jurors.” (Effective April of six May 1, 1971) tive 15, 1971) 25, 1971) Wyoming (February 1971) (March 31, 13. Hawaii jury cases, jurisdiction “In all civil ju- cases for “In all upon for which is based 28 U.S.C. on 28 risdiction is based 51, and 46 45 U.S.C. U.S.C. § 1332, States Code, 45 United Section jury mem- six shall consist of Code, 51, and 46 United Section (Effective 1, 1971) May bers.” Code, 688, jury con- shall Section 26, (February Indiana, 8. Southern (Effective sist of six members.” 1971) 12, 1971) April cases, jury jurisdiction for “In all civil 1971) (April 9, Louisiana, 14. Western which based on 28 U.S.C. § jury eases, jurisdiction “In all civil (diversity citizenship and amount 1332, 45 on U.S.C. (Federal § which based controversy), 45 U.S.C. § 1971) 51, (April 21, 688, the 18. Colorado U.S.C. U.S.C. § § members, jury consist of six shall cases, may jury except “In as all civil challenges peremptory al- three expressly required be otherwise opposing party. One lowed each controlling jury rule, the shall law or cases, lengthy juror, will alternate (Effective consist of six members.” peremptory empanelled, with one be 1, 1971) June challenge oppos- allowed to each 1, 1971) Texas, (May Western 19. 15, ing (Effective April parties.” may cases, jury except “In as all civil 1971) expressly required otherwise 13, controlling rule, jury Pennsylvania, shall (April law or Eastern 15. (Effective 1971) consist of six members.” 1, 1, July July 1971) (as amended juries (b), “(a) Except provided 1971) initially, consist, cases shall in civil 1971) Illinois, (May 20. Northern eight (8) Trials such members. may jury except long least “In as at all cases shall continue so expressly required If (6) jurors in service. otherwise six remain rule, controlling jury con- jurors six shall falls below number (Effective Sep- upon (6), members.” sist of six a mistrial be declared shall any 1971) prompt application tember therefor party then on the record. 19, 1971) (May York, Eastern 21. New twelve, jury of a “In to obtain order consisting (b) jury a Trial jury pur- demanding party a (12) if may be had members twelve specify a must suant to F.R.C.P. 38 (with written demand notice therefor jury If a in his demand. twelve parties) to all is filed with the court spec- timely jury is without demanded thirty (30) than not more not less par- jury ifying twelve, other a sixty following (60) days than service jury ty trial of to a entitled pleading last directed is- jury twelve secure a trial right by jury. sue triable parties serving upon the other specifying of twelve jury (e) demand This rule shall become effective (a) later than later May 1, jury All cases 38(b), or provided in F.R.C.P. time pending in this court the effective (b), days of a the service ten after date hereof shall be tried accord- timely for a which demand (a) ance with sub-division de- unless (Ef- specified jury of twelve.” by jury consisting mand for trial 1, 1971) September fective (12) twelve members is within made (15) days following fifteen effec- 27, 1971) (May Florida, Middle (Effective tive date of this rule.” cases, jurisdiction for “All civil May 1, 1971) upon 28 U.S.C. § which based 46 U.S.C. § (April District U.S.C. § Columbia shall 1971) be tried shall (Effective members.” of six consist “In all civil cases tried in this Court July 1971) (6) shall of six mem- consist (May Pennsylvania, bers, except Western eminent do- cases of 1971) (Effective 1971) main.” June shall “In all civil Louisiana, (April Eastern Rule This consist of members. six 1971) applicable actions all civil shall be Sep- jury cases, on or after “In all shall tried District (Effective Septem- (Effec- consist of six members.” tember 1971.” May 1, 1971) 1, 1971) tive ber Jersey 1971) (May 28, (Filed July 14, 1971) 24. New 30. Montana jury actions, “(d) Jury except “In all civil as Trials may required expressly be otherwise (1) juryA for the trial of civil cases jury law, the shall consist six persons plus shall consist six such (Effective September members.” jurors may impan- as alternate be 1971) eled. Oregon (June 7, 1971) (Filed September Island Rhode “(a) In all civil tried cases 1971) jurors jury court to a the number of juries. jury “(a) In Six-man all civil shall be unless six otherwise ordered jury cases, the consist of six shall by the court. jury a criminal members. The (b) provision not alter the This shall members, case shall consist of twelve challenges number of to a available 23(b) except provided in as Rule party under 28 U.S.C. Sec. 1870 or Pro- the Federal Rules of Criminal 49(b) (Ef- Rule Civ.Proc.” Fed.Rules (Effective September cedure. July 1971) fective 1971) Maryland (June 10, 1971) Zeisel, And Then There . . jury “In civil cases in which trial were None: Diminution of Fed- pursuant Jury, (1971) been demanded F.R. eral 38 U.Chi.L.Rev. 710 jury C.P. shall consist six Judge WEST, E. GORDON District jurors, plus such of alternate number (dissenting): jurors, the court neces- deem result from These consolidated cases sary, action, party unless unique provision of law which Louisiana thirty (30) days less than before the gives right, appellate in civil courts the requests writing, date of trial cases, ques- of both unlimited review jury (Effective August twelve.” tion of fact and law. 10, 1971) VII, Art. 10 of the Constitution § Alabama, 12, 1971) (July Middle provides, Louisiana inter alia: jury “In all civil shall cases (cid:127) of, “The has control (Effec- (6) consist six members.” general jurisdiction supervisory August 15, 1971) tive * * * In over all inferior courts. case, jurisdiction appellate its ex- Wisconsin, (July 1971) Eastern and the facts. tends to both the law except may “In all be ju- matters, In criminal its expressly required by otherwise law or questions of law risdiction extends to controlling rule, shall consist only.” (Effective Septem- of six members.” VII, Constitution And Art. 29 of the § 1971) ber provides of Louisiana that: Hampshire 27, 1971) 29. New (July appeals “All of which the courts “(a) Number Jurors and Initial Se- appeal appellate jurisdiction as have lection provided shall this Section (1) cases, all facts, except the law and the both shall consist of members and the six appeal ques- is limited to where the clerk shall select lot names only by of law other Section tions persons initially. of six drawn of this Constitution.” cases, cases, In all criminal plaintiffs and in sev- in these proceedings shall twelve members consist of in eral other cases stayed and the clerk pending shall select lot the the outcome persons names of twelve to be contend that this unre- of these initially.” (Effective Sep- drawn Appellate Courts stricted 1, 1971) disregard completely tember Louisiana to findings through Amendment. of of the Fourteenth fact set aside the doing so, They in provisions that in each the observe the of Seventh violates case, Supreme Court has character- States Con- the Amendment the United guarantee contend, opera- particular question they in stitution, which, ized the through proc- in as with one the “fundamental” accordance due on the States tive They then or of definitions. Amendment. more those of Fourteenth clause the ess Supreme provides: Court that since conclude the Amendment The Seventh incorpora- adopted the “total never the at where suits “In common [automatically incorpo- principle tion” rating controversy exceed twen- in shall value ty eight the within all Amendments right by dollars, of the purview Amendment] of Fourteenth Supreme the preserved, no fact tried shall be has not Court since the jury, by reexam- shall otherwise be specifically Amend- included the Seventh States, any in of the United ined far has thus held ment those that it according com- rules of than the incorporated Fourteenth be mon law.” Amendment, so a civil trial is “not Amendment, Section The Fourteenth liberty implicit concept of ordered the says: cooperative in a federalism as to be “ * ** any deprive shall nor State process.” quired due of the States liberty, any life, property, person of or concludes, majority if The further as ” ** * law; process without due recognizing that their characterization rights background Despite as “non- Amendment the historical Seventh ground, shaky majority opinion, rests on fundamental” contained the “assuming expressions personal pref- that the to a civil the obvious process, non-jury required due erences for rather than destroy cases, fact Louisiana scheme does not trials civil remains right, question here modifies in accordance with involved but real many not, despite personal procedures, are fair ogous anal- whether judges, procedures preferences established mandates some should, Procedure.” in Federal Rules Civil the Seventh Amendment through fact, operative are fallacies in these conclusions. be on the There States process First, I secured the due clause of Fourteenth believe that indeed Amendment. The here is further the Seventh Amendment are issue light fact fundamental when narrowed because viewed majority agree, used of this Court indeed the definitions “fundamental” must, majority. they if the or alluded to fact to trial not, yet, Supreme cases is a so-called “funda- that the Court has Amendment, right,” then, either mental whatever included Seventh be Amendment, by otherwise, incorporation mandates of the Seventh total op- operative among are held to indeed those which it has the States through through Fourteenth Amendment. the Four- erative Amendment, exactly reason, is difficult to teenth determine what no itself, majority place upon of definition would for this Court to conclude that They the word “fundamental.” refer to Amendment does not involve meaning right. ques- system it as in our ultimate “basic fundamental passed jurisprudence”; “implicit concept tion involved here has never e., liberty”; upon by Court, [Anglo-American] Supreme i. ordered when does, laws, fact, its accord “fundamental to the American State justice.” majority its citizens the state scheme years Courts then over the State guarantees bound the Seventh has held “most of the mandate of Rights” eight prohibiting Bill of first Amend- [the reexamining proc- the facts found requirements court from by ments] due according ess, otherwise operative on than and thus the States proscriptions rules of common law? What Su- and the the mandates Sev- the done, preme has to date not can- enth a Amendment. It is matter of his- secondly, question. not answer this And torical the the fact that Constitution of fallacy originally is that Court’s conclusion United the States was ratified and provision adopted only understanding com- the of Louisiana law with the plaintiffs pro- plained by is a these that certain amendments made would be contrary directly protect vision of to which would believed what was by Federal Rules of Civil and Procedure to be the States certain fundamental “analogous procedures” rights. not to the estab- and inalienable result of The by example, understanding Rule lished those rules. For this first ten was the usually 38 of the Federal Rules of Civil Pro- Amendments referred to as the expressly Rights. provide: prominently cedure Bill in- Found among cluded these is Amendments right by jury “The of trial as declared guar- Seven, Amendment Number by the Seventh Amendment to right antees to trial in civil given by Constitution or as a statute of cases, specifically precludes, appellate preserved the United be States shall examining, from other than ac- parties to inviolate.” cording to the rules common facts right, together is same It by jury. majority found make right by Amend- secured the Seventh right by the assertion that to trial ment, by jury, that tried “no fact “intentionally in civil cases was left any shall reexamined be otherwise (the of the final out document” States, Court of the United than accord- Constitution). they States But fail ing the rules that of the common law” promise by add that of its inclusion plaintiffs “pre- here seek to have prerequisite adop- amendment awas by served inviolate” the courts of the tion of the Constitution itself. The con- State of Louisiana. importance principles stitutional of the questions present- The answers to the contained in the depend upon ed in these cases do not nor recognized by was the United States Su- by per- should be influenced preme Q. Chicago, R. Co. B. & preferences upon sonal called those City Chicago, 17 S.Ct. supply By answers. those the same (1897), 41 L.Ed. it when said: token, might fact that there objections of the juries “One made to been decline in the use acceptance it England of the constitution as really trials is no England came from the hands of the convention moment. What does her not, express did majority business that it aptly alone. As the so words,- right preserve states, quoting “unforgettable of trial jury, that, it, Marshall, under facts tried words” of Mr. Justice John forget could re-examined must “We never it is con- expounding.” fact, courts of otherwise stitution we the United States are according one, if than of the com- majority opin- rules it be stated in the England’s ion, mon law. The seventh amendment “Great did Charter” guarantee objections, was intended to meet those is also of no deprive the courts moment. of the United Our Constitution does. It authority.” expounding our such Constitution we are Magna England. that of Carta of my right belief reasoning conclude, by to trial To whatever by jury in civil cases should declared adopted, just to be as findings fundamental a in civil with the of fact State Courts jury being as the except United States Con- of the considered final stitution has declared provided by Fed- to be as common law otherwise Courts, jury trials, eral concepts, always is not and has not Courts, subject the State should be considered a fundamental defy his- and Thomas Jeffer- simply Dickinson people, John American July, 1775, listed one Resolves son tory. Declaration of signed Congress, on causes: First Continental “ * * * pro- 1774, had, its one of October depriving ac- us

visions : privilege of customed inestimable affecting both in cases respective colonies “5. That Eng- property;” life and Documents the common law entitled Edition, by great History, of American 8th land, especially to the more being Henry Commager, p. 93. Steele privilege of and inestimable vicinage, by peers the their of tried July 14, Ordi- 1787, the Northwest On according law.” of that course to the ordi- adopted. an This was was nance Brown, Hold Gerry “We See Stuart government of the terri- nance for the Truths,” 1941, p. 20. These of tory northwest of the and in “Declarations listed the This was ordi- of that the River Article Ohio. rights in- the of Resolves” one provided, part, in that: nance English in Colonies of habitants territory the said “The inhabitants of “by laws immutable America North always benefit to the entitled shall be English nature, principles of the of Constitution, corpus, and of habeas writ or charters the several * * * by man jury. No the trial * * compacts liberty prop- deprived his shall erty, be adopted Virginia Rights, The Bill of peers by judgment of his but Virginia on June Convention Docu- or the law land.” 1776, provided: supra, p. History, of American ments respecting “11. That controversies 130-131. property, man and in suits between “A Despite majority’s opinion that by jury man, the ancient trial can, course, drawn be- distinction ought preferable other right in crim- trial to a tween the Hold These be held sacred.” See “We cases,” right in civil and the inal cases Truths,” supra, p. 35. right jury in to trial we see Independence, The Declaration of being con- cases cases and civil criminal written Thomas between Jefferson right, see unitary as a we sidered reciting July 4, June 10 and right being apparent- the ly grievances against King George, in- right equal that of as a considered cludes : great corpus. It can the hardly writ habeas right disputed depriving many “For cases of the us Jury.” and civil both criminal benefits Trial See “We very Truths,” supra, p. Hold These to be considered right of and time fundamental at the Rights, Bill of Massachusetts following the formation of the Union. Adams, largely added work John expressions of fun- of these In view to the Massachusetts Constitution by jury, it is in- nature of damental 1780, provides: difficult for to understand deed me concerning majority In all reached “XV. controversies conclusion “Thus, presence of property, and in between two all suits this Court that jury * * * par- persons on an in common suits is based or more right by jury; history.” ties have a a trial accident procedure and this method shall be Story, speaking 1830, Mr. Justice Hold These held sacred.” See “We United States for the Truths,” supra, p. al., et Bedford Parsons v. case recognized in clear L.Ed. Declaration of the Causes Pet. Necessity Taking Arms, prepared Up nature terms fundamental by jury He to trial in civil cases. mon the natural conclusion is that present said: this distinction was minds of the framers of the amend- justly “The trial dear By ment. common law meant people. always the American has that the Constitution denominated object deep interest and ‘law;’ merely the third article every solicitude, and encroachment suits, recog- which the common law great upon been watched with among pro- nized ceedings, its old and settled jealousy. is, a trial to such legal but suits in which believed, incorporated it is into and rights to be de- were ascertained and every secured in State constitution termined, in contradistinction to those Union; and con- it is found equitable where ognized, alone were rec- stitution of Louisiana. One equitable were remedies strongest objections originally taken administered; where, as in the ad- against Constitution of the United miralty, public law, a mixture of express States, was the want of an equity maritime law and was often provision securing of trial Probably found the same suit. by jury in civil eases. As soon as few, any, there were if in the States adopted, Constitution was this the right Union, legal in which reme- some new by was secured the seventh differing dies from old common pro- amendment the Constitution use; law forms in were not in but posed by Congress; and which however, which, by jury in- gen- people ceived an assent of the so tervened, general regulations and the importance eral as to establish its as a respects according in other to were guarantee fundamental the course of the common Pro- law. people.” (Em- and liberties ceedings partition, in cases of and of phasis added.) Pet. foreign attachment, and domestic then, dispel idea, And to has which might examples variously be cited as majority opinion, beeh alluded to in the adopted sense, just and modified. In a that “common law” in as used the Sev- amendment, may then, well con- be enth Amendment means “the basic law strued to embrace all suits which are England,” Story Mr. Justice said: equity admiralty jurisdic- not of phrase law,’ “The ‘common found tion, peculiar whatever clause, this is used in contradistinc- they may form which settle assume to equity, admiralty, tion to legal rights.” 3 Pet. jurisdiction. maritime Constitu- The argument majority Thus, the of the article, tion has declared in the third here that Louisiana could be bound judicial power ‘that the shall extend by the Seventh Amendment her because arising all equity cases in law and un- basically law is France the civil law of Constitution, der this laws England rather than the common law of States, the United and treaties made specious. or which shall made under their au- thority,’ etc., majority and to all cases of ad- concludes because that miralty jurisdiction. and maritime rights, the trial courts such cer- causes, circumstances, grant trials, well known that tain new as to equity admiralty, juries courts of grant summary judgments, judg- or intervene, notwithstanding do not verdict, courts of ments that equity by jury only use the trial this somehow eliminates dilutes extraordinary cases to inform con- Amendment that mandate When, findings therefore, science of the court. of fact shall we requires by except find that appellate the amendment be reviewed courts according that the of trial shall be ar- to the common law. This * * * preserved gument suits at com- in Parsons. was also answered commenting Court, com- even on the where no manifest error is found facts, reviewing jury findings, exist and to reverse

mon law methods though the verdict of the even no said: error of law is found. com- to the “The modes known such facts mon law re-examine conclude, majority To of this granting of a new trial does, appellate review facts tried, toor the issue was where court under Louisiana law on the same is based properly return- which record was “manifest error” doctrine followed ; facias a venire able or the award simply the Federal Courts is to mis-state appellate for some court de novo the facts. Had the reversals the Lou- intervened error of law which Appellate many isiana cas- Courts Judiciary Act proceedings. being here es considered this Court given to all ch. sec. has upon the error” been based “manifest ‘power the courts doctrine, is little doubt these there where grant in cases new trials brought been never have would jury, rea- a trial been there has enough quote, before us. It is not usually which new trials have sons Judge does, majority Tate Albert granted of law.’ been (now Louisiana Justice of the jurisdiction also appellate And the Court) “[Louisiana] effect act, given same amply adhere to the set- courts must redress (sec. 22, 24) * * * jurisprudential tled rule law; errors such errors of a trial factual determinations court’s . trial, lawat in suits new award accepted appellate review should be jury. by a tried have been This in absence manifest error.” the of by Congress, of it the intention “Was may be, probably opinion as is his language of general the Act of the appellate to the courts Louisiana what jurisdiction appellate 1824, to alter the cold, required But the should to do. court, the on it to confer this of is what the hard fact is that by a granting power a new of do, it appellate Louisiana nor courts by facts tried of the re-examination they by required what are Louisiana by jury it, after the enable —to of v. Me- to the case Melaneon do. respect jury, the courts in to to do that Keithen, here under the cases one of sitting States, in Lou- of the United jury consideration, the Court reversed isiana, courts denied to such which is plaintiff verdict the terse for with the sitting the of in all other states explanation jury was that the verdict think not.” Union? We “contrary the evidence.” to the law and MeKeithen, the one of In Hill v. another Consequently, fact there are the that re- us, appellate court means, reviewing the law, cases before at common finding plain- jury’s for the way versed the findings fact, of in no diminishes the ground find “We right that tiff the the fundamental nature of to the burden plaintiff the sustain failed fact in civil cases. by injuries were caused proving her that of re- means that there exist such does negligent vehicle operation the the viewing circumstanc- facts under certain riding.” the But which she meaning language gives the simply es sug- no there is otherwise, and had found says it Amendment when the Seventh applied mani- gestion the the Court be oth- shall that no fact tried is that the fact error fest test. any the court erwise re-examined disagreed simply with Appellate Court according rules than per- findings they are and, as the “rules the common These law. they law, to do under Louisiana mitted rule, such do not include common law” interpretation simply substituted their permits has, an as Louisiana such jury. And so of the facts appellate its own substitute goes cases be- jury, finding each of several fact those ought finding Judge of manifest or the District fore us. There is no findings error, jury’s Pereira, of fact Jones 13 La. done. Appellate Ann. are 102.” re-examined according Courts of Louisiana the Regardless Appel- of the fact that some simple rules of common law. The Judges late in Louisiana adhere Judges Appel- fact if “manifestly the common law erroneous disagree late Court in Louisiana rule,” plain truth the Louisi- jury, they the conclusions reached grants power Appel- ana Constitution do, may, simply and often set freely findings late Courts to review regard aside verdict without to wheth- fact of the and to those reverse er or not error manifest was committed findings to fit conception their own jury. In Louisiana the facts they to be. And what believe facts passed upon are dea novo basis a review of the manner which the Appellate Courts, upon entirely based jury's findings were the sev- reversed record, having cold and without ever had eral involved here leaves doubt no opportunity any and hear see wit- many Judges Appellate nesses. Under Louisiana the find- Judge exactly feel late Louisiana as the ings quite of fact of the mean- Herget, Caldwell Louisiana First ingless because, whether manifest error Appeals, Circuit Court he felt when not, Appellate found Courts are said: jury’s findings. This, not bound I circumstances, any cannot, “I under believe, violates a fundamental by Judge rationalize, suggested contravention of the Seventh and Four- Tate, face of clear and un- teenth Amendments to the United States ambiguous verbiage of the Constitu- Constitution. change or in tion courts’ early As the case of Abat any way jurisdiction affect or the Doliolle, (O.S.) (La.1816), Mart. granted appeal to the liti- so Court of Louisiana an- gant Constitution; I nor can nounced no ap- uncertain terms that any my- persuade under circumstances pellate Louisiana could review court should not self the evidence taken at freely the trial and verse a factual decision of the trial reverse verdict saw fit. as in court the absence of manifest er- power Appellate This of the Louisiana ror; any nor am I imbued with im- by was reiterated the Courts Louisiana propriety in those instances wherein Supreme Wiggins Guier, Court might appellate the court have decided following (1858), in the La.Ann. by construing differently a case the language: contrary evidence to that of the trial doing doing may Supreme for in go court so it noth- this is “As case to the States, ing complying the with we take than Court other Explicitly occasion correct an erroneous im- Constitution the State. to grants litigant regard pression powers the a the Constitution appeal the on the facts. this Court over the case. both law facts the by Constitutionally, no is certified the there basis Where evidence is judge Clerk, appellate is re- view the a facts is made the statement by Judge, accept quired finding District Court does of fact of the the court, though not the a examine same as it differs from the Error, Likewise, passes upon in accord but truth of I not his own. am the (from Judge facts, disregards supposed Tate’s the with the testi- statement ‘For, belief, Page 612): mony unworthy supra. if Article witnesses evidence, gives given weighs weight is to the trial reviews and no at all might finding, preponderates, well effect that which then we as court’s and, fine, pronounces dispense upon as an the tes- with the below time-wasting timony empty precisely ceremonial. case as * * * appeals process, the does that due Louisiana scheme for the reason greater destroy right, that but it not modifies from far are not taken procedures, many with fair the trial accordance decisions number analogous however, conceding, granted procedures courts; of which are es- if explicitly tablished in the Federal of Civil Rules so the constitutional Constitution, ap- Procedure.” Neither United States more in our forth set peals litigant Constitution nor the if Federal Rules filed would be permitted a knowledge ap- Civil would have apprised Procedure were Appellate Federal Court to reverse peal on both would reviewed findings facts, here no au- the cases involved courts given by for the reasons thority appeals, Louisiana even to curtail such Appellate compelling in these cases. reasons. Courts under such have no basis for substitut- short, we majority say presump- “It that ing persuasive, views—however our argue tuous and chauvinistic to that the direc- and sound—for well founded Civil such countries France trials appearing Constitution tives Germany and the coun- Scandinavian Though in an bound. which we are tries are unfair.” But one no here assuage we our effort consciences arguing plaintiffs that at all. These may resort to subtle and tenuous reci- arguing cases are not even these views, can our how tations bolster that civil Russia or Cuba trials anyone clear, unequivocal read the They arguing are unfair. are not provisions explicit here- constitutional We simply immaterial. it because any de- in gree and attribute involved forget “It a constitu- must not meaning than other of reason plaintiffs expounding.” The tion we are is, litigant in Louisiana Constitution, argue simply our here ap- guaranteed appeal, review Russia, Germany, France, not laws of pellate the law court on both Cuba, prohibits absolutely ration- no facts? There is examining found from jury except the facts deny which the al basis according the rules litigant review on the facts common law. grant law. Such a review on the precise question presented here is upon be obtained sult could ac- must not even whether or a State deny spe- arbitrary decision court’s cifically person cord rights granted constitutional is, instead, whether or a not, civil case. litigant. to be I believe this accorded once denies, wrong without inasmuch proscriptions State reason, valid the vested constitution- apply. I be- should litigant and, di- until al they majority conclud- lieve should. rected otherwise because, in their ed that should State, I continue to review of this shall by jury right opinion, in to trial the appeal on the law and the record on right.” civil case not a “fundamental is question the of the facts and not on the the to is difficult for me understand It of erroneousness of determination the right to majority’s of the classification court, the and ex- the decision of press my opinion in as “non-fun- civil cases pre- the on issues ma- when the author of the damental” my the on own resolution of sented his jority opinion adamant in was so Fortenberry Scogin, 149 same.” v. Schmidt et al. Karr et al. dissent in 732, 737, 738, (La.App. 1st So.2d 1963). Cir. right (CA 1972) F.2d 609 the that boy his to wear hair of a school nothing I more need be length believe “funda- that such a wanted he it was the ma- right” of protected said show incorrectness both mental as “assuming pro- jority’s equal process conclusion that clause and the due right Con- required of United States tection to a civil trial is clause transposed stitution, (1964), and it was “fundamental” into our so consti- regulated system right in tutional as a that it could not be fundamental every way by (Emphasis is the school board. It individual.” add- Judge interesting ed.) Improvement See The to note that Ad- further of the Karr, Wisdom, Justice, Ass’n., ministration dissent of Am. Bar his said: 1971, p. Fifth Edition It was also un- “My differences the Court’s with judicial of conclusion the section on derstanding ‘fundamental’ administration the American Bar As- legal differences attitude are sociation that: Judge philosophy. Hand once Learned a word described ‘fundamental’ as person “Exclusion of a from consider- though usually, quite in- ‘whose office ation service disenfranchises disguise [judges] nocently, what is just surely excluding him as as him doing impute are to it a deriva- polls. DeTaqueville from the As ob- impressive far tion than their more ‘Democracy served in in a America’ personal preferences, all are which chapter by Jury entitled ‘Trial fact lie behind decision.’ Considered as a Political States Hand, Rights, L. The Bill Institution’: Judge agree I sure would am Hand “ system jury, ‘The it is applica- equally that his comments are America, appears understood judges' ble attach refusal me to be direct and as extreme label.” ‘fundamental’ consequence sovereignty suggest major- I of the the refusal suffrage. people as universal ity in case to the fundamen- “attach These institutions are two instru- meaningful tal to a label” equal power, ments of which contrib- by jury done, in civil is major- supremacy ute to the of the though quite perhaps innocently, to dis- ” ity.’ 1, “Democracy [Vol. guise doing they what are im- and to pute their America”, decision reason far more The World’s Clas- Great impressive personal preferenc- sics, than their Colonial Im- Press.] es, suspect I which is fact provement all Administration really majority lies behind decision. Justice, p. supra, If the to trial in civil Judge Irving Kaufman, R. of the United eases, pro- Seventh Amendment its First Appeals Circuit Court of tection, right, a fundamental then presently Chairman the Judicial suggest Congress I the Unit- Operation Conference Committee States, legal profession, ed Jury System, alluded to the funda- courts, taxpayers, being scan- jury system thusly: mental nature of the dalously Congress deluded. 1968 the respect can be no “[T]here universal passed Jury Selection and Service unless all Americans feel 90-274, Act P.L. Stat. their law —that have a stake seq. et It U.S.C.A. became ef- § making large it work. When classes fective December 1968. Prior people legal are denied a role in the passage Act, of that there much was process wholly if that denial —even juries criticism manner unintentional inadvertent —there selected. were observed that bound to a sense alienation from infirmity system obvious in the old legal Kaufman, order.” A Fair selecting jurors was that “It violated the principle Jury Justice, pro- basic that no man shall be Essence of Mar- —The against by prosecuted Apr. Lawyers ‘except ceeded 1968 Trial Forum judgment Improvement the peers,’ lawful of his a also of the Ad- phrase deriving Magna supra, p. from Justice, ministration of Carta (Chap. by Howard, Recognizing importance translated in A. the of trial as Magna Commentary system justice, Carta: Text to and the American provided Jury for in Amendment Congress, passing the Seventh the Selection in changes is sweeping in to the United Constitution as States made Act of right jurors, fundamental a contained selecting made- as those and the method eight give in the remainder of the to liti- first first that it intended it clear gants guaran- Amendments, thus, trial, secondly, that the right and and to a opportunity tees of the Amendment should give to Seventh citizens an to all operative thirdly, create an held be on the States juries, to be to and serve on obligation through ju- I the Fourteenth Amendment. on to serve all citizens on pro- Every believe that the Seventh Amendment ries when summoned. right granting country hibits from a was Court in the the States District States by jury prepare trial on one by to civil cases the compelled Act elabo- this to then, hand, hand, the is then and other as plans, the rate selection and Louisiana, nullifying ap- done the total and plans had to be submitted allowing by respective the by effect of the proved Circuit Coun- their Appellate Judges find- to set aside Conference Committee the Judicial cils. ings Jury System juries simply of the Operation because the of the personally agree continuing find- do not with those that devotes committee ings. majority judge opinion to the that hours states number of tremendous study jury sys- question applicability improvement of the the the and money provisions Seventh de- Amendment to the of time and tem. The amount through judges process operation im- the due clause voted to the squarely provement jury system Fourteenth incalcu- the was keeping Sauvinet, de- raised record Walker lable as is no there signed log time. In the 23 L.Ed. it was decided that contrary position juror to the the for Federal Courts taken cost fees the plaintiffs ap- $4,800,000. In these cases. further alone was propriation juror years payment for fees states that “For a hundred the Su- preme $15,930,000, from Court had not deviated the Federal was Courts figure it Walker Sauvinet.” is estimated that But issue $18,830,000. will I these which cite we are here concerned was increase figures presented simply illustrate fact Court in Walker. In declining Walker, jury system question instead of the importance, or not whether suggested judge could, by statute, permitted has be as majority Court, it has taken on direct of this a verdict when failed larger agree. now, much role since 1968 the ad- In the cases before us justice question Appellate ministration of Federal whether or not Courts, apparently been consid- Courts can re-examine the facts found enough Congress agreed upon by ered fundamental than other quadruple, according to more than since to the rules of common law. money appropriates ju- amount of that, long I would hold laws as short, ror fees I alone. cannot sub- people of Louisiana accord to its right view to a scribe by jury to trial in civil meaningful by jury in civil cases Appellate prohibited Courts are right. is not one a fundamental No Seventh Amendment to the United States seriously question could the fact that re-examining facts from Constitution by jury to trial in Federal Courts than accord- found ing otherwise protected by Amendment, to the rules the common seriously question no could one Lou- and all laws of the State holding system, fact that the federal conflict with facts isiana unconstitutional, null should declared jury may found re-exam- and void. except ined ac- cording I of common law. rules reasons, respectfully For I dis- these believe that the sent.

Case Details

Case Name: Melancon v. McKeithen

Court Name: District Court, E.D. Louisiana

Date Published: Mar 1, 1972

Citation: 345 F. Supp. 1025

Docket Number: Civ. A. 3390, 67-20, 68-2, 68-28, 68-110, 68-225, 70-1857 and 71-227

Court Abbreviation: E.D. La.