The Seventh Amendment and Louisiana

As I’m still going through the proofs of my book and trying to complete my reapportionment paper, let’s still with offbeat posts for the time being.

The Seventh Amendment is among the few that the Supreme Court has not extended to the states. Suppose, though, that at some point the Seventh Amendment is incorporated.  This provision refers twice to the common law (the only part of the Constitution does):

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Does this mean that the Seventh Amendment could not be extended to Louisiana? Louisiana, after all, has a civil law system.  (No state in 1791 used civil rather the common law.) Would Louisiana have to switch to common law?  Or would we undertake a more practical interpretation of common law to mean “certain types of actions” or “certain standards of appellate review of facts?”

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4 Responses

  1. Howard Wasserman says:

    We already do this with statutory claims, asking whether it is analogous to one at common law (usually based on the remedy sought).

  2. Brett Bellmore says:

    “Does this mean that the Seventh Amendment could not be extended to Louisiana?”

    I honestly don’t see how you could arrive at a conclusion like that, what the reasoning would be. “Supreme law of the land”, “anything in the constitution or laws of any state to the contrary notwithstanding.”; The argument isn’t just weak, but explicitly prohibited.

    If the 7th amendment is properly incorporated by the 14th amendment, Louisiana has to abandon its current Napoleonic system, period, end of story. That this might be inconvenient is as irrelevant as the inconvenience of Reynolds v. Sims.

    The only real question here is whether ther is actually a good case for incorporating the 7th amendment. And, I suppose, whether the majority on the Court would care if there was a good case; They didn’t much care in Sims.

  3. Joe says:

    This seems like one of those questions that try to make things more interesting than they are.

    The Seventh Amendment provides a limited right to jury in a certain range of cases that were traditionally acted upon in common law courts and a limited rule involving re-examining facts again is set forth.

    If LA courts were required to follow the amendment, they would basically have to apply common law in the relevant cases, but that is not atypical. Courts repeatedly have to apply “foreign” laws in certain cases, and this would be one of them. And, the Constitution sets forth certain things that a state might not itself use.

    Finally, it is not like Louisiana is not part of the matter now from what I can tell. The “reexamination” limit (quoting one summary) covers “a case tried before a jury in a state court and brought to the Supreme Court on appeal.” This would apply to LA and I found this that seems to be a case involving LA itself —

    • Joe says:

      The way to make this more complicated is to focus on that little two letter word.

      Does “at” mean that ONLY when common law cases on involved does the amendment apply? Or, does it mean that in each case we have to judge IF such a case would have traditionally have been a common law case?

      If that is the dispute, yes, things get more complicated in Louisiana.