# The Seventh Amendment

## Video transcript

- [Kim] Hi, this is Kim from Khan Academy. Today we're learning more about the Seventh Amendment to the U.S. Constitution. The Seventh Amendment guarantees the right to juries in civil cases, when the value in controversy is greater than $20. To learn more about the Seventh Amendment, I talked with two experts. Renee Lerner is the Donald Philip Rothschild Research Professor of Law at George Washington University Law School. She specializes in U.S. and English legal history, and she's written extensively about the history of American juries. Suja Thomas is the Peer and Sarah Pederson Professor of Law at the Illinois College of Law. Her research interests include jury provisions in The Bill of Rights, civil procedure, and employment law. Professor Thomas, can you tell us a little bit about why the Framers were so interested in protecting this right in particular? - [Professor Thomas] Historically there were juries in England, and a lot of our Constitution is based on what occurred in England, because of course that was our historical origin, and so colonists were really familiar with juries. They knew that the jury restrained government and preserved liberty, and they also knew what could happen without juries. Because of this history, juries were really important to Americans and they put it in the Declaration of Independence. - [Professor Lerner] And the Framers in general were very enthusiastic about juries. One of the reasons was that juries had been important in helping to nullify British laws that the American colonists didn't like. An example of these laws is the customs taxes. These were taxes on shipping and were very unpopular, especially in New England. What would happen is merchants, the Boston merchants, were supposed to pay a customs tax on merchandise that they imported into Boston and also, in certain cases, exported. What would happen is these Boston merchants would try to import goods and not pay the tax. Sometimes they would get caught by customs inspectors. If a customs inspector caught one of these merchants trying to smuggle in goods, the customs collector would seize the ship and the cargo and hold it essentially for ransom. The customs inspector would then bring an action, a lawsuit, against the ship and the cargo in a court called the Court of Admiralty, which was a type of court that sat without a jury. The judge in the Court of Admiralty would ordinarily require the merchant to pay a large fine in order to get back his ship and his cargo. What the Boston merchants started to do, they were deeply unhappy about these fines, they would bring an action in a court that sat with a jury. It was an action for trespass against the customs inspector. - [Professor Thomas] They knew that juries could be really useful because, for example, there was concerns about protecting litigants from bad laws, also concerns about actions by the executive, and they were also concerned about corrupt and biased judges, so for all of these reasons there was a real value put on civil juries. - [Kim] Just for our general information, how exactly is a civil trial different from a criminal trial? - [Professor Thomas] In a civil trial, someone is suing and wants damages for something that went wrong. So if, for example, you're in an employment situation and you allege your employer discriminated against you, you can bring a civil case and you can try to get damages or money for the wrong that was committed against you. In that type of case, people who are trying to prove the case have to prove by a preponderance of the evidence that this is what happened to you, that discrimination occurred. Then in the criminal context, on the other hand, someone is accused of doing a crime and sometimes there's a grand jury that decides whether that case should proceed against you, and then a criminal jury decides whether or not you committed that crime and they have to decide by beyond a reasonable doubt. So the standard is different. For criminal cases it's beyond a reasonable doubt versus in a civil case by a preponderance of the evidence. So it's a higher standard to prove someone is guilty of a crime than in a civil case to actually win. You see this in the O.J. Simpson case, where he's not convicted but they actually sued him in a civil case and they actually won, and there were different standards. - [Kim] You kind of see throughout the fourth through eight amendments, which deal with the protection of the accused, quite an emphasis on juries. Why were the Framers so keen on juries? - [Professor Lerner] In the Revolutionary Era in particular, when tensions between the American colonies and Britain were very high, juries were one way that Americans could get popular representation in government. They were not allowed to elect members of the British Parliament. They did elect members of the colonial legislatures, but increasingly the British government was taking power from the colonial legislatures. So, this was a way that without an elected legislature the colonists could get representation. John Adams wrote a very interesting passage in his diary in 1771. He wrote that juries were like popularly elected legislatures. That they served that function in the American colonies. - [Professor Thomas] There were some concerns about protection for debtors, that was a big issue at the time, and there were arguments that juries could really protect litigants from bad laws that the legislature passed, from actions by the executive, and from potentially corrupt and biased judges. It wasn't the case that the Framers believed that the jury was actually perfect, but they thought that the jury was the best decision maker. - [Kim] It seems that the Seventh Amendment has a very specific origin in the history of the Revolutionary War and in some things that were very dear to the founders. What are some of the ways that it has grown and changed in the years since then? - [Professor Lerner] There is, as you see in the amendment, a$20 amount and controversy requirement is what we call it, and that remains in force today even though there has been considerable inflation, but still we've stuck with the \$20 limit. The difficulty is today that very, very few cases go to juries, and that is true of the federal courts and also the state courts. - [Professor Thomas] Yeah, that's one of the astounding things that many people don't know about. That less than 1% of civil cases, and we have the federal courts as well as the state courts, but in both of those venues, federal courts and state courts, less than 1% of civil cases are tried by juries. - [Kim] Wow, so what happened there? How did we get from a point where the majority of the cases went before a jury to less than 1%? - [Professor Lerner] One thing that's affected how many cases go to a jury is that judges now have more power to resolve disputes at an early stage. Parties can file a motion to dismiss the case, if they argue that the other side did not have a claim that would hold up under law. Judges can dismiss a case if they find that that's correct. - [Professor Thomas] Around the 1930 period of time, you actually see a number of decisions against jury authority where the Supreme Court actually had ruled in favor of jury authority on the exact same issue. So, something's going on in this time frame, around the 1930 period of time. It's not exactly easy to figure out what that is, but some of the things that I've seen in some of the public documents that are out there, you actually see comments including by a former Supreme Court Justice saying that judges are actually better than juries. A New York State judge stated around this time, "Yes, a judge should be preferred to a jury." That's certainly part of what's going on in the story, and then part of what was going on in the story may be to do with the juries getting more diverse around this period of time, and maybe there's an effort by other certain parts of society to not want diverse juries to decide their cases. These are just a couple of different ideas that I think are contributors to why juries decide few cases today. - [Kim] Interesting, and so by this diversity do you mean like diversity of people from different classes or different genders or different races? What kind of diversity is entering in that time period? - [Professor Thomas] Particularly we're talking about ... We'd be talking about sex and race, yeah, yeah, but I think class is definitely part of that today as well. Then another example that is something that I've spent a good amount of time in my career talking about is something called summary judgment. Summary judgment is a procedure where a judge can decide what a reasonable jury could find, and if the judge decides a reasonable jury could not find for the person who brought the case, the judge can dismiss the case. If someone brings a case for employment discrimination and there's discovery and that is documents being exchanged between the parties and depositions or questions being asked between different witnesses, and so then an employer can say, "Okay, you accused us "of employment discrimination, "but we think you don't have enough evidence, "and Judge, we think that no reasonable jury "could find for this employee. "You should order summary judgment for us "and throw this case out of court." What has actually happened is in over 70% of the cases where a employer makes a motion for summary judgment in an employment discrimination case, that case will be dismissed in whole or in part. - [Professor Lerner] So, judges can in certain cases end the case before it gets to a jury, but by far the most common way that a dispute ends is by settlement between the parties. What has encouraged settlement is that it's much more expensive to bring a case and go to jury verdict today than it was back at the time of the founding. One of the reasons it's so much more expensive is that we now have a system of what we call discovery. That is the parties can ask for information from each other before the trial. They can formally question witnesses, they can ask for documents, they can require questions to be answered. All of that goes on before the trial, and that's expensive to do and they want to save money. They want to save money that's involved in this pretrial discovery, and they want to save money at the trial, and so they go ahead and they settle. The reason it's so important for the parties to save money is that in our system each side in a dispute, in a case, has to pay its own legal fees, even if they win, and so the parties have an incentive to settle the case. That way they save expenses and also they get a predictable result. Many parties are afraid of going before a jury because they don't know what the result will be. For all these reasons, settlement has become very important. Much more so than it was at the time of the founding. - [Kim] So, we've learned that the Seventh Amendment's protections for jury trials in civil cases derives from the context of the Revolutionary War, when colonists felt that juries were perhaps the only way they could have a voice in the law. Despite this protection, fewer than 1% of civil cases go to trial today, since trials have become prohibitively expensive and their outcomes are unpredictable. To learn more about the Seventh Amendment, visit the National Constitution Center's Interactive Constitution and Khan Academy's resources on U.S. government and politics.