GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2025

Status

Accepted

Abstract

This essay discusses the origins, history, and current interpretation of the Re-examination Clause of the Seventh Amendment to the U.S. Constitution. As Justice Joseph Story declared, the Re-examination Clause is separate from the right to civil jury trial in the Amendment’s Preservation Clause. The Re-examination Clause states that no fact tried by a jury shall be “re-examined” in federal court except by the rules of “the common law.” This provision had no counterpart in the state constitutions. The essay explains the methods of review of jury verdicts in English common-law courts in the late eighteenth century, focusing on the remedy of a new trial. Technically, these methods were not called appeals, although they functioned as such. The delegates to the Philadelphia Convention of 1787 assigned broad appellate review of federal and state courts to the U.S. Supreme Court, “both as to law and fact.” Many of the delegates believed such broad appellate jurisdiction was necessary to ensure uniform interpretation of federal laws and to prevent state courts, and state juries, from subverting federal law. James Madison was especially concerned about the latter problem.

The Anti-Federalists, especially Brutus, were alarmed at this grant of far-reaching appellate review to the U.S. Supreme Court. They believed such appellate review would undermine civil jury trial. The essay describes in detail James Madison’s effort to mollify the Anti-Federalists by drafting what became the Re-examination Clause, together with the modifications made in the First Congress. It explains the origins of the historical test for the Seventh Amendment in a case involving the Re-examination Clause. The historical test requires the federal courts to adhere to the practices of re-examining jury verdicts according to the common law of England in 1791, the year the Seventh Amendment was ratified. The Supreme Court had maintained a fairly strict interpretation of the historical test. Judgment notwithstanding the verdict, now known as judgment as a matter of law, was eventually permitted because of the English common-law practice of receiving a verdict subject to the judge’s opinion on law. Federal courts permit remittitur, requiring a plaintiff to agree to reduced damages or face a new trial, but not additur, requiring a defendant to agree to additional damages or face a new trial. The Supreme Court moved away from the traditional strict historical test in Gasperini v. Center for Humanities (1996), a decision that drew a strong dissent from Justice Antonin Scalia.

GW Paper Series

2025-54

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