The English Fire Courts and the American Right to Civil Jury Trial
This Article uncovers the history of a long-forgotten English court system, the “fire courts,” which Parliament established to resolve disputes between landlords and tenants in urban areas destroyed in catastrophic fires. One of the fire courts’ remarkable features was the delegation of authority to judges to adjudicate disputes without juries. Because the Seventh Amendment’s right to a federal civil jury trial depends in part on the historical practice of English courts in 1791, this delegation bears directly on the present power of Congress to abrogate the use of juries in federal civil litigation.
Parliament enacted fire-courts legislation on eight occasions between the mid-seventeenth century and the nineteenth century. This Article particularly emphasizes the first and largest of these courts, established after the Great Fire of London in 1666. Archival research into 1,585 cases resolved by the London Fire Court reveals that the Fire Court never employed juries to resolve contested factual matters. This Article argues that the history of these courts provides a limited but clear power for Congress to strike the right to civil juries in federal court.
England was plagued by disastrous urban fires from the seventeenth through the nineteenth centuries. Speedy rebuilding of devastated communities was essential to their revitalization. In a world largely devoid of fire insurance, a common roadblock to the necessary rebuilding was the existence of disputes between landlords and tenants about their respective obligations to rebuild damaged homes and buildings. Establishing a structure to resolve these disputes was critical. Out of this felt need Parliament developed the fire courts. The first such court, the London Fire Court, created the template used for later courts. This template left the use of juries to each fire court’s discretion, and the judges sitting on these fire courts routinely exercised their discretion by choosing not to impanel juries.
The Great Fire of London began shortly after midnight on September 2, 1666, and burned uncontrolled for more than three days.47 The summer had been hot and dry, and a strong wind was blowing.48 Most of London’s streets, lanes, and alleys were narrow. Its buildings were timber. The upper floors of houses were often cantilevered over the pathways below, so that the top floors on one side nearly touched those on the other.49 It was a recipe for disaster—a recipe perfected when the fire started near, and quickly spread to, one of London’s main waterworks, depriving the few willing to fight the fire of a ready source of water.50
Rebuilding London was a political and economic priority. At the time, England’s prospects in the Second Dutch War were uncertain, and the spendthrift King Charles II was relying on loans from the City of London and its wealthiest citizens to finance the war and prepare defenses against an expected Dutch invasion.51 The City’s own finances were precarious even before the Fire; and with a considerable portion of its revenues tied up in leases of City property to tenants, the Fire and the royal demand for money pushed the City to the brink of bankruptcy.52 Because Charles II also obtained substantial money from customs and excise taxes and from a hearth tax (levied on fireplaces), the destruction of the customshouse, wharves, and more than thirteen thousand buildings caused another significant drop in royal revenue.53 The catastrophe also had a great impact on charities, churches, civic groups, and private persons, including widows and children, many of whom relied on income from leased property for their operations or subsistence.54 Others used leases as investment vehicles to raise capital;55 they potentially faced ruin unless their interests were restored. In short, rebuilding London quickly was essential on numerous fronts, from the geopolitical to the financial to the familial.
But rebuilding posed enormous political obstacles (both local and national), as well as financial, social, aesthetic, and legal challenges.56 Legal issues arose on two fronts. First, law was needed to impose a framework on the rebuilding process. It was necessary to establish building regulations that limited the risk of future catastrophic fire: buildings must be made of brick, they must not exceed a certain height, and they must not overhang the streets. Streets themselves would be widened, with private ground taken for the purpose. With these changes came others: a survey system to determine boundaries and settle disputes among neighbors; a mechanism to value property taken for public purposes or made worthless by widened streets; a tax on coal to finance both this eminent domain system and the reconstruction of public buildings; a sanction (escheat of the property to the City of London) if a property owner refused to rebuild within a reasonable time; provisions requiring owners to share rebuilding costs (such as party walls) that benefited multiple properties; regulations on the price and quality of raw materials used in rebuilding; and incentives to encourage skilled craftsmen to come to London, despite the sometimes onerous burdens of the City’s creaking guild system.57 With significant prodding from the City and Charles II, Parliament passed legislation in February 1667 that covered most of these matters;58 the more mundane were left to London’s Court of Common Council and Court of Aldermen.59
Law was also relevant in a second way that was less socially beneficial. The leases, mortgages, and annuities that defined the obligations of owners, landlords, tenants, and financiers were, of course, contracts. At the time of the Great Fire, the institution of fire insurance had not yet developed,60 meaning that losses were allocable among the contracting parties. As a general rule, that fact spelled disaster for tenants. A covenant in most leases obligated the tenant to repair or rebuild the premises in case of fire—even if the tenant was without fault and even if the fire started elsewhere.61 The tenant was also required to continue to pay rent during the time that the premises were damaged.62
The common-law courts were unlikely to relieve tenants of these agreements. In Paradine v Jane,63 a tenant who had failed to pay rent for a period of three years defended himself by claiming that he had been forced from occupation by royalist forces during the English Civil War; because these forces allegedly included a foreign soldier fighting for King Charles I, the tenant argued that the willful act of a foreign enemy excused his payment.64 Paradine rejected the plea on three grounds,65 the third and most extensively reasoned of which was that, while a court of law would excuse a tenant who was unable to act because of a foreign enemy from a “duty or charge” created by law, “the party [who] by his own contract creates a duty or charge upon himself [ ] is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.”66 In language that anticipated the Great Fire, the court continued: “And therefore if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it.”67
But there was also contrary thinking that tenants would find relief in the courts. Albeit in a most unsatisfactory way, a hapless Frenchman, Robert Hubert, had confessed to starting the Great Fire; he was convicted with celerity and hanged for the crime on October 29, 1666.68 Samuel Pepys reported on a dinner conversation with the noted lawyer Lord John Crew, in which Crew indicated that “the Judges ha[d] determined” that tenants were not required to bear the loss of fire when it was started by an enemy; and France, Hubert’s native land, was allied with the Dutch in the ongoing war.69 Although Paradine seems decisively to support the opposite view,70 Pepys thought that this argument was “an excellent Salvo for the Tenants.”71
Parliament had no similar illusions. The preamble to the act creating the Fire Court recited that “Many of the Tennants Under tennants or late Occupiers [ ] are lyeable unto Suites and Actions to compell them to repaire and rebuild [their houses] and to pay their Rents as if the same had not beene burned and are not releiveable therein in any ordinary course of Law.”72 But neither was the situation entirely happy for landlords. Not only did they face the prospect of long delays and expense in bringing cases in the common-law courts,73 but they were also liable at law to the tenants if they prematurely sought to reenter or relet the leased premises in order to facilitate reconstruction.74 Moreover, even if they were successful in the law courts, landlords faced the prospect of tenants bringing suit in equity to obtain relief from the terms of their leases;75 and regardless of the likelihood of success, equity’s process was notoriously long and expensive.76
These legal realities intersected with cultural realities in a way that was particularly unhelpful to efforts to rebuild. During the seventeenth century, London’s property owners almost invariably preferred not to put their own capital into building proj-
ects. Instead, they sought out developers for their properties, giving the developers sufficiently favorable and lengthy lease terms that the developers could recover the cost of construction (plus a profit) during the lease period. Owners took their profits on subsequent leases.77 Thus, a tenant who had only a short time left on a lease had little incentive to rebuild a house, which (given the new building codes requiring construction in brick) would likely be an expensive and substantial improvement over the burned-down timber house. The tenant needed a sufficiently long lease, and favorable lease terms, to be induced to undertake the construction. The law, however, did not permit judges to calibrate the parties’ legal rights to achieve the best incentives to rebuild.78
The solution that emerged was to establish a court with a specific charge and unique remedial powers. This court was composed of England’s twelve common-law judges.79 Its task was “to heare and to determine all Differences and Demands whatsoever which have arisen or may any way arise betweene Landlords Proprietors Tennants Lessees Under Tennants or late Occupiers of any the said Houses or Buildings.”80 This broad mandate included disputes concerning “the payment defalcation apportioning or abatement of any Rent or Rents” that arose after September 1, 1666; disputes “touching any Covenant Condition or Penalty”; and disputes “touching or concerning the prefixing or limitting of any time for such Repaires or new Building Rebuilding or any Rate or Contribution to be borne or paid thereunto by any person or persons Bodyes pollitique or corporate interessed in the Premisses.”81 Due to the variety of property arrangements, Parliament recognized that “noe certaine generall rule can be prescribed.”82 It did establish, however, a principle to govern the court’s work: “it is just that every one concerned should beare a proportionable share of the losse according to their severall Interests.”83
To give this principle practical effect, Parliament granted the court the authority “where they shall thinke it convenient to order the surrendring, increasing abridgeing ceasing determining or charging of any Estates in the Premisses,” including the power “to order new or longer Leases or Estates not exceeding Forty yeares . . . at such Rents and Fines or without any Rent or Fine as they shall thinke fitt.”84 The court’s decisions bound not only “all persons concerned” with the property but also their “Heirs Successors Executors Administrators and Assignes”; and if that preclusive effect were somehow unclear, Parliament further provided that even those under a legal disability (such as infancy or insanity), ecclesiastical persons and corporations, and “all other person or persons Bodyes Naturall and Pollitique their Heires and Successors and their respective Interests shall be bound and concluded by such respective Order or Orders.”85 The primary limit on the court’s power was temporal: the legislation contained a sunset provision that terminated the court on December 31, 1668.86
The judges of the Fire Court had not, however, finished the backlog of cases by the end of 1668. Although it took two years for Parliament to pass legislation reconstituting the court, ultimately Parliament thrice revived or extended the court’s sunset date. With each of these enactments, Parliament expanded the power of the Fire Court over its existing caseload or extended its jurisdiction to hear cases arising from other fires.87
As the extensions and expansions of its jurisdiction show, the Fire Court came to be regarded as an indispensable institution in the rebuilding of London.88 Case by case, over the course of nine years and nearly sixteen hundred decrees, it reconfigured parties’ legal rights, either reducing rents and extending lease terms to give tenants willing to rebuild the financial incentive to do so or commanding tenants unwilling to rebuild to surrender their leases to willing landlords (sometimes on payment of money to help the landlord finance the rebuilding).89 The court’s influence extended beyond the cases it decided; other cases settled in the shadow of the Fire Court’s decrees.90
B. Critical Features of the London Fire Court
For present purposes, two features of this remarkable court stand out. First, the Fire Court’s procedure was so simple and efficient that it would be the envy even of modern times. There was certainly nothing like it in the seventeenth century. The common-law courts had become places in which pleading was rigid, draconian, and filled with unforgiving traps for the unwary; their justice was increasingly slow and expensive.91 Equity was already laboriously slow and obscenely expensive, and it was developing the rigidity of doctrine associated with common law.92 The Fire Court, in contrast, was to proceed “sine forma et figura judicii and without the formalities of proceedings in Courts of Law or Equity.”93 The Fire Court could summon the parties to attend through the simple expedient of a note or warrant served after the filing of a petition.94 The next step was the hearing on the merits; there were no motions to derail the case on technical issues.95 Three judges heard the case, which was almost always concluded on the same day that it commenced; the court typically decided three or four cases per day.96 Litigants could, and often did, appear without counsel.97 There was a right of appeal, but only to a larger body of seven or more judges of the same court;98 as might therefore be expected, appeals were rare and uniformly unsuccessful.99 The judges were barred from accepting fees for their services, at a time when fees were a major source of judicial income.100
Second, Parliament generally left the decision to use juries to the discretion of the court.101 Out of the 1,585 cases that the London Fire Court decided, the records reflect only 1 case in which the Fire Court referred a matter to a jury. Drewry v FitzGerrald102 involved a dispute over the value of a scrap of land that was too small to build on and that a neighbor, John Drewry, had used to build a bigger house for himself.103 While the court could adjust lease terms, its enabling statute gave it no authority to determine the value of land taken in such circumstances; Parliament required that task to be performed by a jury impaneled by the lord mayor of London and the Court of Aldermen.104 After the jury returned its verdict on the value of the land taken by Drewry, the case went back to the Fire Court, which confirmed the jury’s verdict and ordered transfer of the neighbor’s lease to Drewry on Drewry’s payment of the jury’s award.105
Even when a jury impaneled by the mayor and Court of Aldermen rendered a property valuation, the Fire Court was not required to accept its findings. In Ford v Salter,106 a jury had previously valued land taken for an expansion of the Navy Office.107 Different parties held interests in the property, and one party dissatisfied with the amount that the jury awarded for his share filed a petition in the Fire Court to increase his award. The court accepted the jury’s finding on the value of the taken land (£3,023 13s).108 On intricate facts, it then held that the value of the petitioner’s interest was £400 rather than the £300 that the jury awarded.109
So far as the records show, in no case did the Fire Court impanel a jury to aid in its decisionmaking on matters within the Fire Court’s jurisdiction. Of course, it is possible that juries were employed in cases before the Fire Court without the fact being noted in the court’s records. But this scenario is unlikely. The scribe recording the court’s decrees spelled out in detail the procedural aspects of each case: the allegations in the petition, the service on the defendants, the appearances of counsel, prior hearings, the appearances of witnesses, the evidence adduced, and the orders that the court issued. Failing to mention a critical element like a jury verdict would not have been in keeping with this level of detail, especially given the scribe’s painstaking, one-and-one-half-page rendering of the jury’s verdict in Drewry.110
Certain realities temper the striking lack of juries. In most of the cases heard by the Fire Court, the parties came to a settlement, with the court either mediating the parties’ dispute or approving the parties’ prepackaged deal.111 Most contested cases involved limited factual disputes: the terms of the leases and the ownership interests in the property were usually undisputed, and often the only issues were who would rebuild and on what terms. When factual disputes arose, they often occurred in cases that we would regard as equitable rather than legal: the Fire Court’s principal task was not to award damages for past arrears of rent but to adjust the terms of the lease going forward.112 Despite these limits, however, the court almost invariably excused past arrearages. Moreover, it sometimes made factual determinations in cases that would have been heard at common law—and performed the task without a jury. For instance, in Lamot v Major of London,113 the parties negotiated a new lease for fifty-one years. The tenant believed that the new agreement absolved him from paying all arrears of rent; the City claimed that he had agreed to pay arrears. The Fire Court received evidence and heard the parties. The court credited the plaintiff, but still split the difference: it required the tenant to pay arrears up to the Great Fire, and discharged the tenant for postfire arrears.114
The Fire Court’s failure to use juries is understandable. The court’s powers to reduce rents and extend leases went far beyond the authority of common-law courts to order ejectment or to award damages for arrearages or breaches of the covenant of repair. The Fire Court was also not a court of equity: it operated not according to principles of equity, but according to Parliament’s command to distribute losses proportionally and to craft leasing arrangements that financed the speedy rebuilding of London.115 Although equity could relieve a tenant from the harshness of a legal remedy by canceling a lease and forgiving back rent,116 it did not have the Fire Court’s power to force the parties to accept a new lease of a different length and for a different rent. In modern parlance, we might say that the Fire Court operated in the spirit of equity, merging elements of law and equity; but this description would have meant little to judges operating in a world of distinct court systems and few enforceable statutory rights. One thing, however, was clear: the Fire Court was not a common-law court.117 And jury trial was confined to common-law courts.118
The London Fire Court was no flash in the pan. Large urban fires continued to plague England into the nineteenth century. Parliament established courts of judicature to deal with the Northampton fire in 1675, the Southwark fire in 1676, the Warwick fire in 1694, the Tiverton and Blandford fires in 1731, the Wareham fire in 1762, and the Chudleigh fire in 1807.119 Although built on the London model, later fire legislation differed from the London legislation in important details. First, the later legislation tended to construct a single court with vaster powers: in some ways the latter fire courts took a mien of an administrative agency performing both rulemaking and adjudicatory functions. For instance, the later courts had the ability to establish regulations for new buildings, a power that Parliament had exercised for London.120 Later courts also had the power both to determine landlord-tenant disputes and to impanel juries to determine proper compensation for landowners whose property was taken or reduced in value as a result of rebuilding—tasks that, as we have seen, Parliament had divided between the judges of the London Fire Court on the one hand and London’s lord mayor and Court of Aldermen on the other.121 Second, the common-law judges essentially dropped out of the picture with subsequent fire courts. The legislation for Northampton and Southwark included the common-law judges among those who could hear cases, but added local judges and dignitaries to the list of eligible court members.122 The records of the Southwark Fire Court reflect that, while at least one justice sat on each of the fifty-two cases heard, only seven of the twelve common-law justices ever sat to hear a case, and only three of these sat with regularity.123 By the time of the Chudleigh fire in 1807, local dignitaries constituted the court; no mention was made of the common-law judges.124
With these alterations in form, Parliament relied on the fire courts to resolve legal disputes arising from urban fires.125 With various formulations, each of the statutes gave the courts the discretion to use juries,126 with mandatory impaneling of juries required only for issues of property valuation.127 Not all of the records of these courts survive, but those that do suggest that the courts did not generally employ juries. The records of the Southwark Fire Court reveal that, like the London Fire Court, the Southwark court never relied on juries to determine disputed factual matters.128 According to a historian who examined the records of the Northampton Fire Court, juries were impaneled only to value land taken from its owner in the rebuilding process129 —exactly the same purpose for which they had been used in London.130 The one and only counterexample that I have found occurred when the Warwick Fire Court impaneled a jury to determine who had pulled down a house to stop the progress of the fire (unnecessarily, as it turned out) and what the amount of the homeowner’s damage was; but even in this case the court weighed the evidence and jury verdict before determining these facts for itself.131 As a rule (to which land-valuation issues were the exception), Parliament and the fire-court judges saw juries as a dispensable feature in the resolution of legal problems arising from these urban catastrophes.
II. Interpreting the Seventh Amendment in Light of the Fire Courts
As we have seen, the Seventh Amendment’s jury trial right hinges substantially on the allocation of fact-finding between judge and jury in late eighteenth-century England.132 If the Parliament of that era could grant judges the discretion not to impanel juries, and if judges in the exercise of that discretion chose not to impanel juries, then federal judges today may enjoy some power under the Seventh Amendment not to impanel civil juries. Whether such a power exists, however, depends on two issues. The first is one of scope: Assuming that the history of the fire courts determines the question, how much license does this history give to federal judges to strike civil juries? The second issue is normative: Assuming that the history of the fire courts gives some license to strike juries, may judges employ this power given our settled understanding of the breadth of the Seventh Amendment’s jury trial right? This Part addresses the first issue; the Conclusion addresses the second.
A. The Breadth of the Exception to the Right to Jury Trial
On the assumption that history determines (or at least strongly influences) the scope of the modern jury trial right, the history of the fire courts lends itself to three interpretations: a broad reading, in which judges can suspend jury trial whenever it is expedient to do so; a narrow reading, in which the history of the fire courts has no influence on the modern use of jury trials; and an intermediate reading, in which the power to strike civil juries is confined to circumstances of the kind that led Parliament to create the fire courts. The historical record best supports the intermediate position.
To begin, the broad interpretation of the fire-court history—that the existence of the fire courts provides a power for judges to suspend jury trial whenever in their discretion it seems proper to do so—is too extravagant a theory to maintain in view of the scope of the fire courts’ operation. Unlike many lawsuits, the fire-court cases had a limited need for fact-finding, which is the grist of a jury’s mill. Although the courts had factual findings to make (for instance, determining the terms of the lease(s) involved in the dispute), in most cases they had very few (if any) factual disputes to resolve. Relatedly, most of the fire-court cases for which records exist in accessible form (London, Southwark, and Warwick) were arbitrated or voluntarily settled. Even when these disputes were litigated and factual disputes resolved, the remedies were predominantly equitable in nature (or, perhaps more accurately, were unavailable at common law): when the tenant was willing to rebuild, the London Fire Court usually forgave rent in arrears, excused the nonperformance of the covenant to rebuild, and extended and modified lease terms. None of these remedies was available at law, which would have enforced contracts and covenants according to their letter.133 Moreover, the fire courts were ad hoc tribunals, legislatively constructed for a specific purpose and applying law tailored to the situation. Finally, fire courts constructed after the London Fire Court were not purely adjudicatory bodies, but also had administrative responsibilities of a kind to which a right to jury trial has never extended.134 In short, to erect a broad theory of jury abrogation from the history of a unique, constrained, and occasional court would let a small tail wag a large dog.
The opposing theory—that the history of the fire courts should not influence the present interpretation of the Seventh Amendment at all—presents a more substantial hurdle. The argument runs along these lines. The right to a civil jury is determined principally by two factors: historical practice in 1791 and the nature of the relief sought.135 In some cases, however, a third factor comes into play: “the practical abilities and limitations of juries.”136 The Supreme Court has explained that this third factor applies to cases in which “Congress has permissibly entrusted the resolution of certain disputes to an administrative agency or specialized court of equity, and [in which] jury trials would impair the functioning of the legislative scheme.”137 Congress’s power to abrogate jury trial for these disputes extends only to cases involving “public rights.”138 “Public rights” are implicated in two narrow categories: claims against the government and claims in which “Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, [has] create[d] a seemingly ‘private’ right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.”139 The fire courts fell into the latter bucket of “public rights”: they were closely integrated into public regulatory schemes for rebuilding burned cities. Thus, the argument concludes, the existing analytical structure for the Seventh Amendment already accounts for entities such as the fire courts, and no new exception or alteration in doctrine needs to be made.
But this argument fails. The fire courts were not courts of equity,140 nor were they administrative agencies, when they adjudicated the rights of landlords and tenants. Even granting that later fire courts had regulatory as well as adjudicatory responsibilities and that these courts included local dignitaries in addition to judges,141 the London Fire Court could in no way be seen as an administrative agency. The judges of the London Fire Court were the common-law judges—as close a parallel to Article III judges as could be found in seventeenth-century England. Moreover, insofar as they adjudicated the rights of private parties, none of the fire courts was an administrative agency: on the contrary, Parliament constituted the London Fire Court, and each later fire court, as “a Court of Record.”142 Although some features of these later fire courts, seen in retrospect, make them look like proto–administrative agencies,143 a nonanachronistic view must acknowledge that they were—and were understood at the time to be—judicial bodies when they adjudicated the contractual rights of landlords and tenants. Any effort to cabin the fire courts within the “public rights” corner of Seventh Amendment doctrine fails to come to terms with the courts’ true nature.
Another reason that the fire courts cannot be swept into the “public rights” corner of Seventh Amendment jurisprudence is that the “practical abilities and limitations” factor limits jury trial only when the first two factors—the scope of jury trial in 1791 and the nature of the relief sought—point toward jury trial. As the history of the fire courts shows, Parliament’s ability to suspend jury trial for disputes arising from catastrophic harm was an established practice in 1791.144 Because the fire courts’ influence on the Seventh Amendment inquiry does not travel through the Amendment’s “practical abilities and limitations” prong, the “public rights” analysis of that prong does not control the extent of the fire courts’ influence on the right to jury trial.145
In steering between the Charybdis of “broad influence” and the Scylla of “no influence,” however, the impact of the fire courts on the scope of the modern power to suspend civil juries in federal court remains an open question. Does this history allow Congress to suspend juries only for landlord-tenant disputes arising from catastrophic urban fires (which, given the dearth of such fires today, would effectively render the history irrelevant)? This stingy reading is unduly narrow. Cases interpreting the Seventh Amendment look to history not for a precise matching of factual and legal circumstances but for the best historical analogue; in the process, there is some abstraction from the particular setting under which jury trial did, or did not, occur in 1791.146 On the other hand, abstracting too much from the particulars of the fire-court history—for example, by saying that because the fire courts resolved civil rather than criminal disputes, the fire-court history allows abrogation of jury trial in all civil cases—fails to respect the unique circumstances that led Parliament to create a limited discretion to abrogate jury trial.147
History, structure, and precedent are useful aids in finding the right level of abstraction.148 With respect to history, the salient features of an exception to jury trial must account for Parliament’s motivation in establishing the fire courts as well as the episodic nature of these courts in English practice. These features should be stated in a general enough fashion that they remain applicable in modern times149 but are nonetheless fairly specific.150 With respect to structural considerations, juries are a check against overreaching by government;151 therefore, any limitations on the right should be narrow and necessary,152 and ideally should require the assent of multiple branches of government.153 With respect to precedent, the Court’s Seventh Amendment jurisprudence is rich and stable; any exception to jury trial should fit generally within the Court’s framework, which examines not only history but also “the remedy sought” and the narrow “public rights” exception to jury trial.154 These latter two factors can also help to identify features of the fire-court history out of which a fact-specific exception to jury trial can be built.
In light of these considerations, the history of the fire courts suggests that jury trial in federal court may be limited when four features are present: (1) a significant political, economic, or social crisis; (2) legal disputes arising out of this crisis that, if adjudicated under the legal system’s ordinary rules of substantive, procedural, and remedial law, impose an obstacle to a socially desirable activity necessary to resolve the crisis expeditiously; (3) an act of Congress that creates a tailored substantive, procedural, and remedial scheme that is intended to resolve disputes in a way that promotes the desired activity; and (4) statutory delegation to Article III judges of the power to strike juries when jury trial would thwart the effective administration of this scheme.155
The first factor—a significant crisis—acknowledges the national or regional catastrophes that urban fires once created. It also recognizes the episodic nature of the fire courts; abrogating jury trial should not be a permissible option under the Seventh Amendment for common or recurring types of legal disputes. The second factor—the unresponsiveness of ordinary legal rules to the crisis—also keys into the historical circumstances that gave rise to the fire courts. The common law of the period would have rigidly allocated the entire loss to one side or the other (likely the tenants); and, assuming that the chancellor was sympathetic to the plight of the losing tenants, all that equity could have done would have been to throw the entirety of the loss onto the landlords.156 Neither result would have addressed the fundamental social need—to rebuild a city as quickly as possible. Given the way in which land development was financed (favorable lease terms to tenants to induce them to build),157 the only way to spur the rebuilding of burned areas was to lower rents and extend lease terms to the point that tenants found it profitable to rebuild. But the rigid substantive and remedial law of the time could not accommodate this Solomonic solution; and in any event the procedural law would have kept the cases tied up in litigation for years.
The existence of legal obstacles in the wake of a crisis should not, however, be a sufficient reason to suspend jury trial; otherwise, jury trial rights would always be subject to suspension in times of emergency. Hence the third and fourth factors: Congress must craft a legal regime designed to foster activity that aids recovery from the crisis; and jury trial must be incompatible with this regulatory regime—an incompatibility that the legislation resolves by giving judges the discretion to suspend jury trial if necessary to implement the regime effectively.
Like the first two factors, the third and fourth factors draw substantially on the historical circumstances that gave rise to the fire courts. The legislation for London established a unique standard—available in neither law nor equity—that shared loss proportionally.158 Every fire-court statute, after reciting the deficiencies of ordinary procedure in aiding expeditious rebuilding,159 authorized the fire courts to adopt summary, streamlined procedures unlike anything available in traditional courts, then or since.160 The remedies that Parliament authorized were also unavailable in ordinary litigation. Forgiving arrears and overlooking covenants to repair were not remedies within the ambit of the common-law courts; and while equity may have enjoyed the capacity to do both, neither equity nor common law could have taken the next step necessary to rebuild the towns: ordering the parties to accept longer leases on different terms from those originally negotiated.161 Rather than tailoring the remedy to the parties’ legal rights, which is the standard remedial approach in law and equity,162 Parliament ordered the fire courts to tailor their remedies to the social objective of rebuilding devastated communities.163
Finally, history shows that the fire-court judges did not have license on their own to suspend the use of juries: Parliament delegated to the judges the discretion to do so.164 This discretion was confined to the adjudication of landlord-tenant disputes.165 The judges obeyed the terms of this delegation precisely; when required by statute to refer certain matters for jury trial, they followed Parliament’s command without hesitation.166 We do not know the reason that they generally failed to employ juries, but it seems likely that they saw juries as an impediment to the operation of the fire-court scheme. Uniformity in outcome among similarly situated landlords and tenants was critical to speedy rebuilding;167 in London many cases settled or were mediated against the backdrop of the Fire Court’s decisions,168 and the prospect of the jury trial might otherwise have led some optimistic parties to hold out. Impaneling juries in view of the mass dispersion of London residents after the Great Fire would also have presented significant logistical problems, and would have burdened returning citizens who were eligible for jury service with public duties that would have distracted them from the task of rebuilding their own fortunes.
While the third and fourth factors remain close to the historical circumstances of the fire courts, they also rely on structural and precedential insights. Structurally, the requirement that Congress erect a unique statutory regime, one feature of which is the delegation of the power to suspend jury trial to judges, ensures that all three branches of government (Congress and the president through the requirements of bicameralism and presentment and the judiciary in its exercise of delegated discretion) agree on the necessity of suspending jury trial. In terms of precedent, the Supreme Court has acknowledged that “the remedy sought” is a critical determinant in the right to jury trial;169 requiring that the statutory regime be constructed to induce socially beneficial behavior that existing law frustrates aligns such legislation with the historical range of equity, which tended to act only when existing legal remedies were inadequate and which tended to award injunctive relief that induced future lawful behavior.170 The third and fourth factors also nod in the direction of the Court’s more recently developed “public rights” limitation on the right to jury trial, which authorizes delegation of fact-finding to nonjury tribunals as a component of a “public regulatory scheme,”171 but only when “jury trials would impair the functioning of the legislative scheme.”172
B. Applying the Abrogation Power in Modern Times
These four factors provide a narrow path to suspension of the right to civil jury trial in federal court. Although some courts and commentators have argued for a broad judicial power to strike juries in complex litigation,173 fidelity to the historical record suggests greater caution. A multimillion dollar securities-fraud suit174 stumbles on the first factor: in view of the size of our economy, a single company’s alleged fraud does not present a national crisis. A massive antitrust dispute in a sensitive and economically vital industry175 arguably might clear the first factor, but it would trip over the remaining factors: antitrust law and procedure do not themselves impose an obstacle to the activity necessary to overcome the crisis, nor has Congress established a unique regulatory scheme to spur activity necessary to overcome the arguable crisis or delegated to judges the decision whether jury trial would be incompatible with this scheme.
Nonetheless, it is possible to imagine cases that might fit within these four parameters. Recent disasters analogous to the Great Fire of London are the BP oil spill in the Gulf of Mexico in 2010, the destruction of sections of New Orleans in Hurricane Katrina in 2005, and al Qaeda’s attack on the World Trade Center on September 11, 2001. A different example is the mortgage foreclosure crisis that exploded in 2008. Each event spurred substantial litigation.176 Of course, for none of these disasters did Congress create a special court analogous to the London Fire Court, and it certainly never granted federal judges the discretion to strike a jury. But it is easy to imagine legislation that could have done so.
To use the September 11th attack as an example, Congress created exclusive jurisdiction and venue in one federal court (the United States District Court for the Southern District of New York) for all legal claims arising from the attack; it also created a compensation fund to induce victims not to sue.177 This legislation applied ordinary rules of substantive, procedural, and remedial law to the claims filed in court,178 and it did not give judges of the Southern District the discretion to strike juries. Assume, however, that Congress had given these judges the ability to order the airlines to compensate victims based not on the airlines’ legal fault but rather “based on the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant.”179 Further assume that Congress authorized the judges of the Southern District to strike juries if they might interfere with the administration of this scheme. Such hypothetical legislation has many elements of the legislation creating the London Fire Court: a significant political, social, and economic catastrophe; changes in the substantive rules of liability; and procedural and remedial law uniquely crafted to resolve the consequences of the catastrophe.
Despite these similarities, this statute would not pass muster under a test derived from the history of the fire courts. Lacking is the critical element that drove the establishment of the fire courts: the sense that existing law imposed obstacles that frustrated activities necessary to alleviate the crisis. True, after September 11th the financial health of the airline industry was threatened as a result of lost aircraft and declining passenger revenue.180 But existing law was not itself the obstacle that kept passengers from flying. Nor was the portion of the statute providing compensation to victims designed to create incentives for passengers to fly (thereby reviving the industry); its sole purpose was compensation.181 If we assume that liability from existing and potential lawsuits was itself threatening the financial health of the airline industry, then legislation permitting judges to decide September 11th lawsuits on a “loss apportioned among the parties” standard—under which judges could set damages with an eye toward avoiding crushing liability—would fit within the parameters of the fire-court legislation. There would be a crisis (the potential collapse of the airline industry), and existing law would impose an obstacle (massive liability) that made resolution of the crisis difficult. Creating tailored law that allocated losses between victims and the airlines would encourage prospective activity (keeping the airlines operational) to alleviate the crisis, and the variability of jury trial would frustrate awards of damages calibrated to ensure the airlines’ financial health.
A less far-fetched example arises from the recent mortgage foreclosure crisis, which parallels the problems of urban fires in many ways. The collapse of the housing market in 2008 created an economic crisis. Existing law, which required home owners to make agreed-on payments and gave lenders the right to foreclose for nonpayment, created an obstacle to the activity necessary to overcome the crisis: continued payment of mortgages on an extended and reduced basis that reflected income levels and property values. Legislation that would have given a “mortgage court” the ability to forgive arrears and adjust mortgage payments in light of income and value would have altered the traditional legal rights of home owners and lenders, and would have done so in a way that encouraged prospective activity (continuing payments on loans and continued home occupation) that might overcome the crisis.182 If Congress allowed this hypothetical “mortgage court” to suspend jury trial for the monetary claims of lenders whenever the prospective variability of jury trial might threaten the uniformity of result necessary to induce home owners and lenders to settle in the shadow of the court’s justice,183 then the analogy to the fire courts would be complete.
In recent years, scholars have noted the trend toward agency or executive-branch settlement or adjudication of broad social disputes, many of which contain both backward-looking (compensatory) and forward-looking (injunctive) elements.184 Although administrative or executive resolution of such disputes holds the promise of swift, inexpensive, and consistent justice, the practice also creates substantial concerns about capture, loyalty, and accuracy.185 A common theme that has emerged in this literature is to import into these administrative or executive-branch solutions some of the protections that litigants receive in court; but doing so is not without problems—including sticky separation-of-powers issues that surround attempts by Congress or the judiciary to regulate the actions of the executive when it refuses to adopt these protections voluntarily.186
An evident solution is to return these disputes to the courts, which already have in place numerous protections for individuals caught up in large-scale catastrophes. It is often thought that jury trial stands in the way of this solution: parties often balk at the notion that twelve people “good and true” should determine the fate of an industry, and juries make more difficult the use of novel techniques to bifurcate or segment cases.187 Congress’s power to give judges the discretion to abrogate jury trial creates another option to resolve at least some of these large-scale disputes. Of course, many considerations will ultimately bear on the choice of forum, but the constraints imposed by jury trial do not always need to be among them.
The history of the fire courts supports a narrow exception to the right to a civil jury in federal court. To be faithful to this history, the exception requires that Congress design a legal regime removing obstacles that existing legal rules place in the way of an activity necessary for recovery from a crisis; in addition, any valid suspension of jury trial also requires Congress to delegate the power to Article III judges to suspend jury trial only if jury trial would threaten the effectiveness of the regulatory regime. Not every disaster fits within these parameters, and Congress must thread the needle carefully for those disasters that do.
Even if history gives Congress the license to suspend the right to civil jury trial in unique circumstances, the issue remains whether history should change the settled interpretation of the Seventh Amendment. Knowledge of the fire courts has been lost to time,188 and the modern understanding of the scope of jury trial has formed in ignorance of the fire courts’ existence. In this regard, the fire courts raise an issue of more general significance to constitutional interpretation and construction. Knowledge of history will always be imperfect. Albeit infrequently, unexpected historical revelations may fundamentally alter our understanding of the meaning of a constitutional text. The question is to determine the better course: stick with the settled meaning of a text or conform the Constitution more closely to the fuller understanding that the historical record provides.189 The issue is most salient for those who adhere to originalist methodologies of constitutional interpretation and construction, but it matters for any methodology that gives credence to history—as virtually all methods do.190
Whatever the answer in other constitutional contexts, the answer under the Seventh Amendment is clear: the history of the fire courts must be incorporated into our understanding of the right to a civil jury. Unlike other constitutional texts, the Seventh Amendment bakes the importance of history into its very words (“the right of trial by jury shall be preserved”).191 Unlike other constitutional texts, the Amendment has generated broad agreement across time and across ideological and methodological spectrums that history matters in the Amendment’s interpretation and construction.192 Unlike the use of history in other constitutional contexts, the historical issue in the Seventh Amendment context does not require a value-laden construction of the Framers’ intent or the original public meaning of a text.193 Uniquely among constitutional provisions, the Seventh Amendment requires an inquiry into objective historical fact—English practice in 1791—rather than subjective intent or meaning.
Therefore, the history of eighteenth-century English practice must bear on the shape of the modern right to civil jury trial in federal court. One aspect of English practice in 1791 was the system of fire courts—ad hoc tribunals created by Parliament to respond to urban crises and given discretion to resolve disputes without the aid of juries. In a comparable modern crisis, history tells us that Congress and federal judges should have comparable powers.
Of course, history is only one factor affecting the scope of the Seventh Amendment.194 But a limited power to suspend the right to jury trial in crises comparable to those that gave rise to the fire courts is consistent not only with history but also with the nonhistorical factors—“the nature of the relief sought” and “public rights” litigation—that the Supreme Court uses to shape the Seventh Amendment.195 Present-day situations equivalent to those that led to the fire courts—situations in which existing legal remedies are inadequate to spur the activity necessary to overcome a crisis—are equivalent to the circumstances in which equity traditionally intervened. Thus, suspending the right to a civil jury during certain crises fits nicely within the Amendment’s analytical framework.
This conclusion does not require acceptance of the broad claim that the Seventh Amendment contains a “complexity exception” under which federal courts may suspend civil jury trial when cases are too complicated for ordinary citizens to understand.196 Debate over the existence of this “exception” has raged for years.197 The exception is on shaky ground for a number of reasons,198 not the least of which is the lack of clear historical antecedents. Although fire-court lawsuits contained one element of modern complex litigation—a mass number of claims199 —a careful, cautious, and faithful reading of the fire-court history does not permit its extrapolation to all complex cases.
Nor does this conclusion require acceptance of the general claim that emergencies reshape the meaning of the Constitution.200 The fire courts show that the right to a civil jury had been subject to suspension in a time of crisis long before the ratification of the Seventh Amendment. In the circumstances that this Article has described, suspension of civil jury trial during a crisis was built into the right from the beginning.
As limited as the power is, the idea that Congress has any power to suspend the right to civil jury trial in federal court nonetheless sounds novel and radical. One of the standard arguments made for originalism is the damper that its historical method places on novel (and presumably undesirable) constitutional interpretations and constructions.201 This argument assumes that the history of every constitutional provision is fully known. Occasionally, however, history holds a surprise. That is perhaps the ultimate lesson of the fire courts. History can sometimes act as a destabilizing force in constitutional interpretation and construction.
- 47For a day-by-day—indeed, street-by-street—description of the progress of the fire, see John Bedford, London’s Burning 37–132 (Abelard-Schuman 1966). The fire was so intense that Samuel Pepys reported seeing cellars still smoldering from the fire the following March. See 8 The Diary of Samuel Pepys 114 (California 1974) (Robert Latham and William Matthews, eds) (entry for Mar 16, 1667). See also 7 The Diary of Samuel Pepys 393 (California 1972) (Robert Latham and William Matthews, eds) (entry for Dec 1, 1666) (describing a fire being rekindled in a cellar by strong winds).
- 48See Porter, The Great Fire of London at 33–34 (cited in note 38).
- 49See Bell, The Great Fire of London in 1666 at 11 (cited in note 37); Porter, The Great Fire of London at 11–19 (cited in note 38).
- 50See Bell, The Great Fire of London in 1666 at 28–30 (cited in note 37). Finding a way to encourage the rebuilding of the waterworks while satisfying the divergent interests of its beneficial and legal owners presented the Fire Court with one of its greatest challenges, and was one of its greatest accomplishments; by tackling and resolving the issue early in its existence, the court assured prospective builders of a reliable source of water. See generally Morris v Morris, A 199 (London Fire Ct Apr 27, 1667). See also Reddaway, The Rebuilding of London at 98–99 (cited in note 37).
- 51See 72 Repertories Ct Aldermen 9 (Nov 13, 1666) (appointing a committee to advise the lord chancellor of the exchequer of the “backwardnes” of Charles II in his repayment of “the great sumes of money” lent by the City); id at 117v (June 11, 1667) (providing Charles II with £105,000 to supply regiments that were to resist the attacks of the Dutch in the River Thames); Reddaway, The Rebuilding of London at 41 (cited in note 37) (noting that “London was almost indispensable to [England’s] chances of success” in the war). To allay fears that he would not repay his creditors, Charles II took the unusual step of assuring them that he would do so. Declaration of Charles II on June 18, 1667, reprinted in 166 London Gazette 2 (June 17–20, 1667). Less than five years later, he reneged on the promise, ruining some wealthy financiers. See J. Keith Horsefield, The “Stop of the Exchequer” Revisited, 35 Econ Hist Rev 511, 513–16 (1982).
Aside from war, Charles II needed money to fund an extravagant lifestyle. He was once described as a man “who liked his fun, thought Puritanism no religion for a gentleman, and acted accordingly.” M.M. Knappen, Constitutional and Legal History of England 443–44 (Harcourt Brace 1942).
- 52See Reddaway, The Rebuilding of London at 42, 68–71 (cited in note 37). See also id at 74 (noting that the City was a considerable landlord, deriving one-quarter of its operating revenue from leases).
- 53See id at 41–42 (noting that London’s “actual share of the total taxes [paid to the Crown] was large,” that money could not be obtained from creditors who lent on the security of the customs and excise duties that had been collected in London, and that “[c]himney money . . . stopped coming in”). “Chimney money” was another name for the hearth tax. It had first been imposed by Parliament in 1662 to supplement Charles II’s annual royal revenue. See 14 Car II, ch 10 (1662), in 5 Statutes of the Realm 390, 390–93; Paul F. Figley and Jay Tidmarsh, The Appropriations Power and Sovereign Immunity, 107 Mich L Rev 1207, 1225 n 141 (2009) (describing the importance of the hearth tax to the century-long struggle over parliamentary sovereignty in matters of the purse).
- 54See Reddaway, The Rebuilding of London at 76 (cited in note 37). For instance, the widow of Peter Morris, whose grandfather had built the Thames waterworks, alleged that the £300 per year that she was granted under the terms of a trust established on her husband’s death were “her whole subsistance.” Morris, A at 200, 202. For a particularly complex familial arrangement, involving rents from the leases of “three mesuages or tenements,” distributed among two children and six grandchildren, see Babington v Beake, C 22v, 22v (London Fire Ct Nov 22, 1667).
- 55See Philip E. Jones, 1 The Fire Court: Calendar to the Judgments and Decrees of the Court of Judicature Appointed to Determine Differences between Landlords and Tenants as to Rebuilding after the Great Fire. v (Clowes 1966) (“The apparent frequency with which leases were assigned might suggest that at times it was a form of investment, a quick profit being taken through an increased fine [a lump-sum payment made on execution of the lease].”); Reddaway, The Rebuilding of London at 75 (cited in note 37) (noting that the Great Fire “had destroyed a substantial part of the accumulated savings of generations and had wiped out most of the security behind a highly complicated system of investment”); Baer, 76 Bus Hist Rev at 518–19 (cited in note 39) (describing the ways in which London property could be used as an investment). For instance, in Clerke v Chapman, A 4 (London Fire Ct Mar 7, 1667), a tenant had obtained from a third party an unspecified sum of money, and in return agreed to pay the third party an annuity of £40 per year for a term of years; £150 was still owing at the time of the Great Fire. The sense of the transaction was that the tenant had sublet the premises to others, using the rents to pay the annuity. Clerke, A at 13.
- 56The discussion in this paragraph derives from Professor T.F. Reddaway’s classic history of the rebuilding process, see Reddaway, The Rebuilding of London at 68–170 (cited in note 37), as well as from my reading of the records of London’s Court of Aldermen and its Court of Common Council.
- 57See id at 79–85, 113–20, 150–67.
- 5818 & 19 Car II, ch 8 (1667), in 5 Statutes of the Realm 603, 603–12. The Common Council worked to draft the rebuilding legislation. See 46 J Ct Common Council 132–34 (Nov 30, 1666). The Court of Aldermen drafted other proposals and sent delegates to lobby Charles II and influential figures in Parliament and at the royal court. See 72 Repertories Ct Aldermen 6v (Nov 8, 1666), 21–21v (Dec 4, 1666), 26v (Dec 8, 1666), 29v (Dec 16, 1666), 32–32v (Jan 8, 1667), 43v (Jan 22, 1667). The Court of Aldermen even provided gifts that today may be less charitably described as bribes: £100 to the Speaker of the House of Commons, Edward Turnor, as a “loving remembrance from this Court for his many kind offices,” id at 21 (Dec 4, 1666) (rendering Turnor’s name as “Turner”), and “halfe a ton” of the best claret to the attorney general as a similar “loving remembrance,” id at 29v (Dec 21, 1666). In the end, Parliament passed legislation only after Charles II exerted “firm pressure,” refusing to end the Parliament until it passed rebuilding legislation. Reddaway, The Rebuilding of London at 86, 88 (cited in note 37). See also 8 HC J 684 (Jan 26, 1667) (reporting on a message from Charles II expressing his concern for “the Desolation of the City” and urging the House of Commons to “apply themselves to the Dispatch of those Bills which concerned the City”).
- 59See, for example, 72 Repertories Ct Aldermen 6v (Nov 7, 1666) (granting a City tenant the right to dig up five acres of leased land to make bricks).
- 60Jones, 1 The Fire Court at vi (cited in note 55) (“[The tenant] would have no insurance to soften the blow.”). The Great Fire “stimulated the development of fire insurance.” Id at v. See also Porter, The Great Fire of London at 153–54 (cited in note 38) (describing the rise of the first fire insurance companies in the late seventeenth century).
- 61See Jones, 1 The Fire Court at vi (cited in note 55). The Fire Court decrees often recited the substance of the covenant. See, for example, Franke v Deane and Chapter of the Collegiate Church of St. Peter of Westminster, H 190, 190v (London Fire Ct July 2, 1672) (describing “a covenant on the Tenants part to repaire and uphold the premisses and soe to leave the same at the end of the said terme”). On rare occasions a lease omitted such a term. See, for example, Sing v Woodcock, E 60, 61 (London Fire Ct Dec 10, 1668).
- 62See Jones, 1 The Fire Court at vi (cited in note 55). Leases of twenty-one years were common, but many exceeded that length. Baer, 76 Bus Hist Rev at 538 (cited in note 39). A typical lease required a tenant to pay a combination of a “fine,” which was a lump sum due on execution of the lease, and rent in annual or quarterly installments. This system allowed a lessor to extract capital for immediate consumption or investment, albeit with a reduction in rental income in future years. Some leases, however, involved “rack rent[s],” in which no fine was due and the rent reflected full market value. See id at 519 n 11, 538–39 (describing the frequency and purpose of fines). Three cases suffice to show the array of leasing arrangements. In deCayne v Harding, A 25 (London Fire Ct Mar 28, 1667), the tenant paid a fine of £30 and an annual rent of £22 for a thirteen-year lease on a messuage. Id at 25. In Bathurst v Wardens and Comonalty of the Mistery of Skinners London, E 18v (London Fire Ct Nov 17, 1668), the tenant paid a fine of £300 and £6 per year (in quarterly payments) for a lease of twenty-three years on a messuage; two months later, the tenant subleased the property “without ffine” for £50 per year. Id at 19. In Rosewell v Thomas, G 1 (London Fire Ct Jan 17, 1671), a tenant leased from the Cathedral of St. Paul’s, for an unstated duration and for a £200 fine, two messuages and some ground, and then sublet the premises for twenty-four years at a rent of £20 for the first three-and-one-half years and £60 thereafter. Id at 1. Eleven years later the subtenant relet one of the messuages for most of the remaining lease term, receiving only a “competent ffine” and a yearly rent of £20 in view of the “great charges to bee layd out in repairatons” by the sub-subtenant. Id.
- 6382 Eng Rep 897 (KB 1647).
- 64Id at 897.
- 65The first ground held that the tenant had pleaded that the enemies held the leased premises for about two-and-three-quarters years, thus failing to plead an excuse for nonpayment of the entire three years. Id. The second ground held that the tenant had failed to plead that the entire army was foreign. Id. The foreign soldier was alleged to be Prince Rupert, see id, a German-born nephew of Charles I who had received titles of English nobility and was at the time leading the English forces fighting for Charles I. Prince Rupert (Encyclopædia Britannica, July 20, 2014), archived at http://perma.cc/735G-G4N6.
- 66Paradine, 82 Eng Rep at 897.
- 67Id. In case the point were not already clear, the court further observed that even if the leased land had been “made barren by wildfire, yet the lessor shall have his whole rent.” Id at 898.
- 68For a copy of Hubert’s indictment, see Bell, The Great Fire of London in 1666 at 353–54 (cited in note 37). No one in authority, including the judge who sentenced him to hang, believed that Hubert had committed the crime. See id at 191–95, 200–08.
- 69See 7 The Diary of Samuel Pepys at 357 (cited in note 47) (entry for Nov 5, 1666); Anglo-Dutch Wars (Encyclopædia Britannica, July 4, 2014), archived at http://perma.cc/QC5G-DE75.
- 70The language in Paradine was perhaps ambiguous enough to create room for the tenants’ argument, but Pepys likely misunderstood the import of Crew’s comments. Pepys’s desire to do so was understandable, given that his own father would have benefited from such a ruling. See 7 The Diary of Samuel Pepys at 357 (cited in note 47) (entry for Nov 5, 1666). It is also possible that Crew misunderstood Paradine, or thought it wrong (because it had been rendered by the King’s Bench after the arrest of Charles I and implicated the actions of forces loyal to the Crown). See note 65.
- 71See 7 The Diary of Samuel Pepys at 357 (cited in note 47) (entry for Nov 5, 1666).
- 7218 & 19 Car II, ch 7, § 1 (1667), in 5 Statutes of the Realm 601, 601.
- 73See 18 & 19 Car II, ch 7, § 1 (1667), in 5 Statutes of the Realm 601, 601 (noting that “great Differences are like to arise concerning the said Repaires and new Building of the said Houses and payment of Rents which if they should not be determined with all speede and without charge would much obstruct the rebuilding of the said Citty”).
- 74Depending on the circumstances, the tenant had a variety of potential actions against the landlord, including a writ of covenant, a writ of ejection, and a writ of trespass. See William Blackstone, 3 Commentaries on the Laws of England 156–57, 199–212 (Chicago 1979).
- 75For a contemporary case in which a tenant turned to equity to obtain relief from the payment of rent and to force the landlord to accept a surrender of a lease, see Harrison v North, 22 Eng Rep 706, 706 (Ch 1667). See also 2 A General Abridgment of Cases in Equity, Argued and Adjudged in the High Court of Chancery, Etc.: Vol. II. [1667–1744] 245 (undated), in 22 Eng Rep 1, 208 (discussing cases in which equity granted relief against a forfeiture for nonpayment of rent after the common-law courts had granted the landlord’s request for ejectment).
- 76For a scathing critique of the dilatoriness and extravagance of seventeenth-century equity practice, see Holdsworth, 1 A History of English Law at 423–42 (cited in note 12).
- 77See Lawrence Stone, The Crisis of the Aristocracy: 1558–1641 357–63 (Clarendon 1965) (describing seventeenth-century practices for developing the suburbs in the West End). Having been leveled to the ground, London was likely to require similar real estate investment practices if it were to rebuild successfully.
- 78In light of the reality that many inhabitants had abandoned London and taken up long-term leases in its suburbs or elsewhere, property owners were also finding it difficult to induce new developers to take up the task of rebuilding. Indeed, in taking stock of the past year on the last day of 1666, Pepys wrote despairingly that “[t]he City [is] less and less likely to be built again, everybody settling elsewhere, and nobody encouraged to trade.” 7 The Diary of Samuel Pepys at 426 (cited in note 47) (entry for Dec 31, 1666). The pace of rebuilding remained slow for the following two years. See Reddaway, The Rebuilding of London at 244–83 (cited in note 37) (describing the progress of reconstruction for houses, halls, and churches).
- 79At the time, there were three common-law courts—Common Pleas, Kings Bench, and the Exchequer—with four justices appointed to each court. See Holdsworth, 1 A History of English Law at 195 (cited in note 12); Blackstone, 3 Commentaries at 40 & nn 41, 44 (cited in note 74) (noting that there were generally four judges in each court, although a fifth was on occasion appointed).
- 8018 & 19 Car II, ch 7, § 1 (1667), in 5 Statutes of the Realm 601, 601.
- 8118 & 19 Car II, ch 7, § 1 (1667), in 5 Statutes of the Realm 601, 602.
- 8218 & 19 Car II, ch 7, § 1 (1667), in 5 Statutes of the Realm 601, 601.
- 8318 & 19 Car II, ch 7, § 1 (1667), in 5 Statutes of the Realm 601, 601.
- 8418 & 19 Car II, ch 7, § 2 (1667), in 5 Statutes of the Realm 601, 602. Parliament placed one limit on this power: the court could not diminish “auntient [ancient] and accustomable Rents” when the “Lawes of this Realme doe forbid” such diminishment. 18 & 19 Car II, ch 7, § 2 (1667), in 5 Statutes of the Realm 601, 602. Numerous ecclesiastical, charitable, and educational entities, such as the Cathedral of St. Paul, St. Bartholomew Hospital, and Christchurch College in Oxford, held land in the City under ancient grants. See Jones, 1 The Fire Court at xviii–xix (cited in note 55).
- 8518 & 19 Car II, ch 7, § 2 (1667), in 5 Statutes of the Realm 601, 602.
- 8618 & 19 Car II, ch 7, § 5 (1667), in 5 Statutes of the Realm 601, 602.
- 87For instance, in the first reauthorization statute, Parliament expanded the Fire Court’s jurisdiction to determine disputes arising from other London fires that preceded the Great Fire. See 22 Car II, ch 11, § 31 (1670), in 5 Statutes of the Realm 665, 671. The same act expanded the Fire Court’s authority in other ways; for instance, the court could now extend leases by as many as sixty years (fifty-one years in certain cases in which an infant held title through an inheritance), see 22 Car II, ch 11, §§ 18, 25 (1670), in 5 Statutes of the Realm 665, 669–70, and it could transfer ownership when street widening rendered a parcel of land too small to be buildable, see 22 Car II, ch 11, § 32 (1670), in 5 Statutes of the Realm 665, 672. This act established a new sunset date of September 29, 1671. 22 Car II, ch 11, § 17 (1670), in 5 Statutes of the Realm 665, 669. Parliament subsequently extended the court’s sitting until September 29, 1672, adding to the court’s docket cases arising from fires in the borough of Southwark. 22 & 23 Car II, ch 14, §§ 1–2 (1671), in 5 Statutes of the Realm 724, 724. The court was again unable to conclude its work by the deadline; and Parliament revived the Fire Court in 1673 for a final time, in the process again extending the jurisdiction to encompass a recent fire that had burned houses left standing after the Great Fire. 25 Car II, ch 10 (1673), in 5 Statutes of the Realm 795, 795–96. The court’s new sunset date was February 25, 1676. 25 Car II, ch 10, § 1 (1673), in 5 Statutes of the Realm 795, 796. The court heard its last case on February 18, 1676. See generally Rookes v Maior of London, I 171 (London Fire Ct Feb 18, 1676). Of the 1,585 decrees by the Fire Court, 16 involved fires other than the Great Fire.
- 88See Bell, The Great Fire of London in 1666 at 248 (cited in note 37) (“The Fire Judges’ Court, by its practice and example, alone made the speedy restoration of London possible.”); Reddaway, The Rebuilding of London at 94 (cited in note 37) (“[The Fire Court] had the greatest possible success.”). Curiously, despite the Fire Court’s importance, none of the standard texts on English legal history mentions the court. See generally Baker, An Introduction to English Legal History (cited in note 28); Holdsworth, 1 A History of English Law (cited in note 12); Maitland, Equity: Also the Forms of Action at Common Law (cited in note 26); S.F.C. Milsom, Historical Foundations of the Common Law (Butterworths 2d ed 1981); Theodore F.T. Plucknett, A Concise History of the Common Law (Butterworth 5th ed 1956).
- 89For representative cases, see Hickman v Gourney, C 42v, 43–44 (London Fire Ct Jan 14, 1668) (forgiving the rental payments from the date of the fire until March 1669, extending the lease, originally for thirty-one years at an annual rent of £25, by thirty-five years at an annual rent of £12, and further noting the tenant’s argument that the combination of a widened street and the tenant’s inability to build a jetty over the street made it impossible to rebuild a house of the same rental value); Thurlby v Dodsworth, C 38, 38v–39 (London Fire Ct Jan 8, 1668) (forgiving the tenant’s rental payments from the date of the fire until August 1669, extending the lease, originally for twenty-one years at an annual rent of £50 and a fine of £120, by fifty-one years at an annual rent of £62, and further requiring the landlord to contribute £400 toward rebuilding); Jeans v Peake, A 341, 341–42 (London Fire Ct July 18, 1667) (ordering a subtenant to surrender the lease upon the landlord’s payment of £30 to the subtenant and noting that, shortly before the fire, the subtenant had agreed to pay the prior tenant £300 for the remaining thirty-three years on the lease, of which the subtenant had already paid £90); Coates v Withers, A 1, 1 (London Fire Ct Feb 27, 1667) (ordering a subtenant to surrender a sublease for a messuage and warehouse on the condition that the owner pay £25 to the subtenant, who had recently paid £30 to the estate of a prior subtenant for the remaining three-plus years on the sublease). On some occasions, both parties wished to rebuild, and the court needed to determine which party’s rebuilding plan was more advantageous. The preference was to grant the tenant the right. See Jones, 1 The Fire Court at xv (cited in note 55) (noting that the Fire Court “gave preference to the person in occupation at the time of the Fire”); Kemp v Mils, E 127, 127v (London Fire Ct Dec 15, 1668) (holding that “it was not reasonable to turne out an old tenant for the benefit of a new contractor”). Sometimes, however, the court gave possession to the landlord or owner. See, for example, Altham v Lenthall, A 246, 247 (London Fire Ct Oct 28, 1667) (holding that, “although a Tenant who desires to build and to returne to the place of his habitaton and trade if hee bee a shoppkeeper who lives by his Customers resorting to his shopp ought to be preferred,” the landlord should be given the right to rebuild under the unique circumstances of the case).
- 90See Jones, 1 The Fire Court at xix (cited in note 55) (“The decisions of the Court . . . influenced other owners of property in the City in dealing with their lessees.”). For example, in one case, a tenant who ran a tavern had begun rebuilding pursuant to a prior order of the court; his new petition claimed that the landlord and thirteen tenants who ran shops beneath the tavern had not joined in the rebuilding or contributed to the cost. At the hearing the landlord informed the court that it had already negotiated new terms with several of the tenants; the court ordered that it provide like terms to the other tenants who wished to rebuild. Sayer v Humble, C 143v, 143v–44v (London Fire Ct Nov 13, 1667).
- 91See Baker, An Introduction to English Legal History at 74–77 (cited in note 28) (critiquing the technicalities that kept common-law courts from reaching the merits); Donald Veall, The Popular Movement for Law Reform 1640–1660 30–32, 184–93 (Clarendon 1970) (same; also discussing reform proposals to reduce delay and expense).
- 92See notes 75–76 and accompanying text; Baker, An Introduction to English Legal History at 95 (cited in note 28) (noting that, since the seventeenth century, “the word ‘Chancery’ had been synonymous with expense, delay and despair”); Plucknett, A Concise History of the Common Law at 692 (cited in note 88) (describing the increasing rigidity of equity doctrine).
- 9318 & 19 Car II, ch 7, § 1 (1667), in 5 Statutes of the Realm 601, 602. A literal translation of “sine forma et figura judicii” is “without the form and shape of a judicial proceeding.” A looser translation is “in a summary way” or “summarily.” In separate rebuilding legislation for London enacted contemporaneously with the Fire Court legislation, Parliament authorized three common-law judges to determine the value of each person’s interest in property once a jury had determined the overall value of property taken for a public purpose. In granting this power, Parliament eschewed the “sine forma et figura judicii” language, instead instructing the judges to determine the interests “in a summary way of proceeding and without the formalities or ordinary course of proceedings used in” the common-law courts. See 18 & 19 Car II, ch 8, § 25 (1667), in 5 Statutes of the Realm 603, 608. Likewise, the fire-court legislation arising from the Northampton fire in 1675 and the Southwark fire in 1676 copied much of the language of the London Fire Court act, but substituted the word “summarily” for the phrase “sine forma et figura judicii.” 27 Car II, § 1 (1675), in 5 Statutes of the Realm 798, 798; 29 Car II, ch 4, § 1 (1677), in 5 Statutes of the Realm 842, 843.
- 9418 & 19 Car II, ch 7, § 3 (1667), in 5 Statutes of the Realm 601, 602.
- 95On rare occasion, a party contested the court’s jurisdiction at the hearing on the merits. See Jones, 1 The Fire Court at xiii (cited in note 55). For instance, in Vandermarsh v Godschall, A 141 (London Fire Ct July 5, 1667), the defendant argued that the petitioner, who wished to obtain an extension of his lease in return for rebuilding, was a citizen of an enemy nation (Holland), and thus unable to hold a lease; he further argued that the damage done to the leased premises did not result from the Great Fire, thus putting the dispute beyond the jurisdiction of the court. Id at 142–44. The court rejected both arguments, after which the defendant grudgingly consented to an extension of the lease. Id at 145–46. See also Fish v Maior of London, I 27v, 28 (London Fire Ct Dec 5, 1673) (holding that the court had jurisdiction to hear a dispute involving a stairway, to be built on a public easement, that gave access to rebuilt premises).
- 96Jones, 1 The Fire Court at xi–xii (cited in note 55). Additional judges might attend the hearing. See, for example, Coates, A at 1 (four judges present, with all signing the decree); Altham, A at 246–47 (seven judges present, but with only three signing the decree). In the first year, the Fire Court sat on 120 days, and decided 374 cases, averaging slightly more than 3 cases per day. See Jones, 1 The Fire Court at xi (cited in note 55). See also id at xii (“The majority of cases were completed on the day they were called.”). Sometimes the court could not determine the case at the first hearing, and would continue the matter. See, for example, Blake v Boulton, A 135, 136 (London Fire Ct May 30, 1667) (detailing two preliminary hearings before the final hearing on the merits).
- 97The record of each case noted appearances of counsel, if any. In the first case heard by the Fire Court, no lawyers were mentioned, see Coates, A at 1; the fifth case was the first to mention counsel, who appeared for each side. See Taylor v Brewster, A 8, 8 (London Fire Ct May 13, 1667). As might be expected, institutional property owners, such as the Cathedral of St. Paul, appeared through lawyers or other agents. See, for example, Kelynge v Deane and Chapter of the Cathedrall Church of St. Paul, A 479, 480 (London Fire Ct Apr 18, 1668) (noting appearances on behalf of both parties). The small cadre of lawyers who handled these cases performed a valuable function. See Philip E. Jones, 2 The Fire Court: Calendar to the Judgments and Decrees of the Court of Judicature Appointed to Determine Differences between Landlords and Tenants as to Rebuilding after the Great Fire. ii (Clowes 1970) (noting that the number of settlements increased as parties became “aware, or more likely were advised by counsel with long experience of the Court[’]s procedure, of the terms that would be acceptable to the Court”).
- 9818 & 19 Car II, ch 7, §§ 1, 6 (1667), in 5 Statutes of the Realm 601, 601–03. The lack of any right of appeal, and in particular of appeal to the House of Lords, was a significant sticking point that nearly scuttled passage of the Fire Court act. It passed the House of Lords after an attempt to include a right of appeal was defeated on a vote of 36–29. After passage, three lords specifically registered a formal protest against “the unlimited and unbounded Power given to the Judges in this Bill without any Appeal.” See 12 HL J 86–87 (Jan 23, 1667). The act had no comparable difficulty in the House of Commons, passing without significant debate. See 8 HC J 687 (Jan 31, 1667).
- 99Of the Fire Court’s 1,585 decrees, 8 were appeals from prior decisions of the court. No appeal was successful. See generally Master List of Fire Court Decrees (cited in note 40). See also note 40.
- 100Compare 18 & 19 Car II, ch 7, § 4 (1667), in 5 Statutes of the Realm 601, 602 (“[N]one of the said Justices And Barons shall take any Fee or Reward whatsoever directly or indirectly for any thing to be done by them by vertue or colour of this present Act.”), with Holdsworth, 1 A History of English Law at 252–55 (cited in note 12) (discussing fees typically received by common-law judges).
- 10118 & 19 Car II, ch 7, § 1 (1667), in 5 Statutes of the Realm 601, 602 (stating that the court “may upon the verdict or inquisition of Jurors testimony of witnesses upon oath, Examination of partyes interessed, or by all or any of the said wayes or otherwise according to their Discretions proceede to the hearing and determining of the Demands or Differences betweene the said Partyes”). The lack of a comma after “Jurors” is either a drafting error or a drafting convention of the time. Legislation that created some of the other fire courts recited a comparable formula but included the comma. See 27 Car II, § 1 (1675), in 5 Statutes of the Realm 798, 798 (allowing the Northampton Fire Court to proceed “by Verdict, Testimony of Wittnesses upon Oath, Examination of Parties interested or by all or any of the said wayes or otherwise at their discretions”); 5 Geo II, ch 16 (1731) (on file with author) (allowing the Blandford Fire Court to proceed “either by Verdict or Inquisition of Jurors, Testimony of Witnesses upon Oath, Examination of Parties interested, or by all or any of the said Ways, or otherwise, at their Discretions”). The formulation for the Wareham Fire Court act was identical to that of the Blandford Fire Court act, see 3 Geo III, ch 54 (1762) (on file with author), and the Chudleigh Fire Court act was essentially identical, see 48 Geo III, ch 89 (1808) (on file with author). On the other hand, the Southwark Fire Court act had no comma after “Verdict” and did not mention “jurors” at all in the equivalent clause. See 29 Car II, ch 4, § 1 (1677), in 5 Statutes of the Realm 842, 843 (allowing the court to proceed “by Verdict Testimony of Wittnesses upon Oath Examination of partyes interessed or by all or any of the said wayes or otherwise at their discretions”). The Tiverton Fire Court act followed the Southwark formula, but inserted a comma after “Verdict” and made other inconsequential changes. See 5 Geo II, ch 14 (1731) (on file with author). The Warwick statute followed the London Fire Court act formula, but it had no commas between any of its clauses and modernized the spelling of “Interested.” See 6 & 7 Wm & Mary (1694) (private act) (on file with author).
- 102 value="102">I 76 (London Fire Ct May 12 and July 14, 1674).
- 103Id at 76–76v. Drewry held a fifty-year lease on property on Fleet Lane, while Richard FitzGerrald held the adjoining scrap of ground under a lease that lasted another twenty-seven years. Claiming a half-interest in Drewry’s house, FitzGerrald brought an action of ejectment; in response Drewry petitioned the Fire Court to transfer possession of the land to Drewry for the remainder of his lease. The court referred two questions to a jury impaneled by the lord mayor of London and the Court of Aldermen: first, whether FitzGerrald’s scrap of land was too small to build on; and second, if it was, what the value of the land was. The jury found that the land was too small to support a building, that the value of FitzGerrald’s interest for the remainder of his twenty-seven-year lease was £33, and that the value of the interest of FitzGerrald’s landlord (between the expiration of FitzGerrald’s lease and the expiration of Drewry’s lease) was £9. Id at 76–78v.
- 104The power of the Fire Court to order these transfers of land, as well as the requirement that the value of transferred land be determined by a jury impaneled by the mayor and aldermen, were both added in the 1670 statute reauthorizing the Fire Court. 22 Car II, ch 11, § 32 (1670), in 5 Statutes of the Realm 665, 672. Before the 1670 reauthorization, Parliament had kept the function of the Fire Court in adjusting lease terms and the just compensation function more distinct; other rebuilding legislation allocated responsibility over the latter function exclusively to the lord mayor and the Court of Aldermen. See 18 & 19 Car II, ch 8, § 23 (1667), in 5 Statutes of the Realm 603, 608.
- 105Drewry, I at 78–79v.
- 106I 137 (London Fire Ct Feb 2, May 1, and Nov 13, 1675). In the statute for rebuilding London, which was a statute distinct from the legislation erecting the Fire Court, Parliament gave “three or more” of the common-law judges the power to resolve disputes over different interests in property taken for public use and to distribute a jury award among those interests. See 18 & 19 Car II, ch 8, § 25 (1667), in 5 Statutes of the Realm 603, 608. Ford was a rare case invoking this power. See generally Ford, I 137.
- 107Ford, I at 137v–38.
- 108Id at 138.
- 109Id at 140v.
- 110See Drewry, I at 78–78v.
- 111See Jones, 1 The Fire Court at xvi (cited in note 55) (“The Court continually mediated between the parties to settle terms upon which one of them would rebuild.”); Jones, 2 The Fire Court at ii (cited in note 97) (“The principal difference between the cases recorded in the present Calendar and [earlier cases] is the frequency with which the parties reported that they had reached agreement prior to the hearing.”).
- 112For instance, Vandermarsh involved factual disputes about the citizenship of the petitioner and the extent of damage to his property, but the petitioner was seeking only an extension of his present lease. See Vandermarsh, A at 142 (praying that the Fire Court grant “[such] releife as should seeme meet and to stand with just right equity and good Conscience”). On occasion the court referred to the possibility that the parties might resort to common-law courts either to litigate issues not decided in the case or to enforce their legal rights if a party failed to abide by the terms of the court’s decree. See, for example, Altham, A at 247 (permitting an owner to demand arrears “according to Law” from a tenant whose proposal to rebuild was rejected in favor of the owner’s).
- 113H 241 (London Fire Ct Sept 26, 1672).
- 114Id at 242. See also 18 & 19 Car II, ch 7, § 1 (1667), in 5 Statutes of the Realm 601, 602 (limiting the Fire Court’s power to apportion or abate arrearages in rents to those that arose after the Great Fire).
- 115See notes 87–89 and accompanying text; Bell, The Great Fire of London in 1666 at 245 (cited in note 37) (describing the Fire Court act as “daringly conceived, undermining all those sacred rights with which lawyers during past centuries had invested property, accepted and passed by a Parliament in which property alone was represented”).
- 116See note 75 and accompanying text.
- 117See Jones, 1 The Fire Court at vi (cited in note 55) (stating that, although the judges came from the common-law courts, the Fire Court’s “procedure and jurisdiction [were] akin to a court of Equity”). Walter George Bell may have put the matter best:
The Court sat in equity, but differed from all known courts in this, that in addition to the parties before it there was a third party, whose interests were confided to the safekeeping of the Judges themselves. This was the public, and in case after case the public interest in the speedy rebuilding of [ ] the City decided the issue.
Bell, The Great Fire of London in 1666 at 246 (cited in note 37).
- 118In addition, juries were under attack in the mid-1660s due to concerns about bribery and delay. See William Holdsworth, 6 A History of English Law 408–09 (Methuen 2d ed 1977) (describing reforms to the jury system in the mid- to late seventeenth century to prevent corrupt and dilatory practices). The common-law justices serving on the Fire Court would have been intimately aware of the failings of jury trial.
- 119See note 42. Despite pressure to do so, Parliament failed to enact a statute to deal with a fire in Buckingham in 1724, much to the detriment of the town. See Sharman, The Northampton Fire Court at 125 (cited in note 42).
- 120See note 58 and accompanying text.
- 121See note 104 and accompanying text. For the rebuilding of London, Parliament had initially enacted two statutes: one to erect the Fire Court and another to establish regulations for rebuilding. See 18 & 19 Car II, ch 7 (1667), in 5 Statutes of the Realm 601, 601–03 (Fire Court legislation); 18 & 19 Car II, ch 8 (1667), in 5 Statutes of the Realm 603, 603–12 (rebuilding legislation). The rebuilding legislation required London’s lord mayor and Court of Aldermen to impanel juries: (1) to determine the value of land that was seized because no one was willing to rebuild on it after a period of three years, see 18 & 19 Car II, ch 8, § 13 (1667), in 5 Statutes of the Realm 603, 605; (2) to determine the value of land taken for street widening if the owner would not agree to a price, 18 & 19 Car II, ch 8, § 23 (1667), in 5 Statutes of the Realm 603, 605; and (3) to determine the amounts that owners whose land was improved by rebuilding should pay to the City of London as a result of their new advantage, see 18 & 19 Car II, ch 8, § 24 (1667), in 5 Statutes of the Realm 603, 608. In the later fire legislation, Parliament combined all the tasks in one statute, and then concentrated all the regulatory and adjudicatory powers in one body: the fire court. When land valuation was in issue, Parliament required these courts to use juries. See, for example, 27 Car II, § 4 (1675), in 5 Statutes of the Realm 798, 799 (requiring a jury to assess the value of any land that the Northampton Fire Court ordered taken from a landowner for rebuilding purposes); 29 Car II, ch 4, § 4 (1677), in 5 Statutes of the Realm 842, 843–44 (requiring a jury to determine the value of land taken when the Southwark Fire Court ordered the confiscation of land due to a landowner’s failure to rebuild); 48 Geo III, ch 89, §§ 7, 15 (1808) (on file with author) (requiring the Chudleigh Fire Court to impanel a jury to determine the value of land taken for street widening and further requiring a jury to determine the value of the interest in land that was seized when a person was unwilling to pay an appropriate share of rebuilding expenses incurred by other parties).
- 122See 27 Car II, § 1 (1675), in 5 Statutes of the Realm 798, 798 (Northampton); 29 Car II, ch 4, § 1 (1677), in 5 Statutes of the Realm 842, 842–43 (Southwark).
- 123See generally Court of Judicature Decrees, Fire of Southwark (1677) (copy from the London Metropolitan Archives on file with author). See also Sharman, The Northampton Fire Court at 121 (cited in note 42) (noting that “[n]one of the judges of the royal courts ever sat” on the Northampton Fire Court).
- 124See 48 Geo III, ch 89, § 1 (1808) (on file with author) (noting also that the officials charged with resolving disputes in the Chudleigh fire were called “[c]ommissioners”).
- 125Sometimes Parliament required the later fire courts to resolve disputes under a proportional-share-of-the-loss standard equivalent to the London Fire Court’s standard, see note 87 and accompanying text; sometimes it did not. Compare 29 Car II, ch 4, § 1 (1677), in 5 Statutes of the Realm 842, 842 (specifying the London Fire Court’s standard of “proportionable share in the losse according to their severall Interests” for the Southwark fire), with 27 Car II (1675), in 5 Statutes of the Realm 798, 798–801 (not specifying a standard for the Northampton Fire Court), and 48 Geo III, ch 89, § 1 (1808) (on file with author) (not specifying a standard for the Chudleigh Fire Court). Nonetheless, every fire court received the powers to modify the length and terms of leases and to excuse covenants and postfire arrearages of rent—powers that were the means by which the courts achieved proportional sharing. Indeed, the Chudleigh court’s power to settle disputes concerning rents, covenants, or “any Rate or Contribution to be borne or paid for and towards the repairing and rebuilding of said Houses, by any Person or Persons,” 48 Geo III, ch 89, § 1 (1808) (on file with author), and to adjust the terms of leases was in some ways more open-ended than that of the London Fire Court: the Chudleigh court was unrestricted in the length of a new lease that it could establish. Compare Geo III, ch 89, § 3 (1808) (on file with author) (empowering the Chudleigh court to order “the granting, enlarging, charging, abridging, exchanging, surrendering, or determining of any Estates in the Premises”), with 18 & 19 Car II, ch 7, § 2 (1667), in 5 Statutes of the Realm 601, 602 (limiting the power of the London Fire Court to extend a lease to forty years), and 22 Car II, ch 11, § 18 (1670), in 5 Statutes of the Realm 665, 669 (increasing the London Fire Court’s power to extend leases to sixty years).
- 126See note 101.
- 127With later statutes, the juries were impaneled directly by the fire court, not by other officials such as the town’s mayor or aldermen. See, for example, 27 Car II, § 4 (1675), in 5 Statutes of the Realm 798, 799 (Northampton); 6 & 7 Wm & Mary, 4 (1694) (private act) (Warwick) (on file with author).
- 128As with the London Fire Court, see note 112 and accompanying text, not every case before the Southwark Fire Court involved factual disputes. When such disputes arose, however, the court resolved them without the aid of a jury. See, for example, Bankes v Wight (Southwark Fire Ct June 8, 1677), in Court of Judicature Decrees, Fire of Southwark 6, 7–8 (1677) (copy from the London Metropolitan Archives on file with author) (describing testimony given under oath about the terms and covenants of a lease).
- 129See Sharman, The Northampton Fire Court at 123 (cited in note 42).
- 130See notes 104, 121, and accompanying text.
- 131See Decree for Edward Heath (Warwick Fire Ct), in Farr, ed, The Great Fire of Warwick 1694 374, 374–76 (cited in note 42). The court’s judgment in Heath agreed with the jury’s verdict. The Warwick court also impaneled a jury in a second case involving the valuation of a life interest when the court transferred possession of the land to a third party. See Decree for Edward Clopton of Bridgetown, Esq (Warwick Fire Ct), in Farr, ed, The Great Fire of Warwick 1694 396, 396–97 (cited in note 42).
- 132See notes 8–36 and accompanying text.
- 133See notes 63–72 and accompanying text.
- 134See note 121 and accompanying text (describing the rulemaking responsibilities of the later fire courts). The Seventh Amendment does not apply to administrative rulemaking. See Thomas S. Ulen, The Growing Pains of Behavioral Law and Economics, 51 Vand L Rev 1747, 1756–57 (1998) (contrasting administrative rulemaking with jury trial as a means to determine liability).
- 135See notes 10–14 and accompanying text.
- 136Ross v Bernhard, 396 US 531, 538 n 10 (1970).
- 137Granfinanciera, SA v Nordberg, 492 US 33, 42 n 4 (1989).
- 138Id at 51 (“Congress may devise novel causes of action involving public rights free from the strictures of the Seventh Amendment if it assigns their adjudication to tribunals without statutory authority to employ juries as factfinders.”). See also Atlas Roofing Co v Occupational Safety and Health Review Commission, 430 US 442, 455 (1977) (“[W]hen Congress creates new statutory ‘public rights,’ it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the Seventh Amendment’s injunction that jury trial is to be ‘preserved’ in ‘suits at common law.’”).
- 139Granfinanciera, 492 US at 54, quoting Thomas v Union Carbide Agricultural Products Co, 473 US 568, 593–94 (1985) (brackets in original).
- 140See notes 115–17 and accompanying text.
- 141See notes 120–24 and accompanying text. The very last fire court took on the mien of an administrative agency in another way: the right of appeal. For the London Fire Court in 1666, Parliament had permitted an appeal from the court’s “Judgments and Determinations” only to a larger body of the same court. See 18 & 19 Car II, ch 7, § 4 (1667), in 5 Statutes of the Realm 601, 602. See also note 98 and accompanying text. For the Chudleigh Fire Court in 1808, Parliament provided a right of appeal to the court of assize for the County of Devon. See 48 Geo III, ch 89, § 26 (1808) (on file with author). The right to judicial review of agency action is a common feature of modern administrative law. See Administrative Procedure Act § 10, 60 Stat 237, 243 (1946), codified as amended at 5 USC § 702 (“Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.”).
- 142See 18 & 19 Car II, ch 7, § 4 (1667), in 5 Statutes of the Realm 601, 602 (stating that “the said Justices and Barons or any three of them for the matters and according to the powers herein before mentioned shall be, and shall be taken to be a Court of Record”). The same language was used in later fire-court statutes. See, for example, 27 Car II, § 1 (1675), in 5 Statutes of the Realm 798, 798 (constituting the Northampton Fire Court as a “Court of Record”); 48 Geo III, ch 89, § 1 (1808) (on file with author) (constituting the Chudleigh Fire Court as a “Court of Record”). A “court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony: which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question.” Blackstone, 3 Commentaries at 24 (cited in note 74). See also id (“All courts of record are the king’s courts, in right of his crown and royal dignity.”). There were numerous courts of record in seventeenth-century England, including the common-law courts and a number of minor courts, such as the Court of Oyer and Terminer, the Court of Gaol Delivery, and the Court of Sewers. See Gregory’s Case, 77 Eng Rep 282, 284 (KB 1595). Nineteenth-century reforms consolidated many of these courts into the High Court of Justice. See Holdsworth, 1 A History of English Law at 639 (cited in note 12).
- 143See, for example, Frank A. Sharman, Planning Law after the Great Fire of London, J Planning & Envir L 24, 26 (1982) (noting that the power given by Parliament to the City of London for rebuilding the City was “a very complete system of planning law containing forerunners of many modern planning law provisions”).
- 144It is unclear whether the fire courts were in Alexander Hamilton’s mind when he wrote Federalist 83, which defended the Constitution’s failure to include a right to civil jury trial. In the course of arguing that any attempt to delineate the scope of civil jury trial by constitutional provision would be unwise because of unforeseeable developments in the law, Hamilton observed:
It is conceded by all reasonable men, that [jury trial] ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these states as in Great-Britain, afford a strong presumption that its former extent has been found inconvenient; and give room to suppose that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing, to fix the salutary point at which the operation of the institution ought to stop; and this is with me a strong argument for leaving the matter to the discretion of the legislature.
This is now clearly understood to be the case in Great-Britain, and it is equally so in the state of Connecticut.
Federalist 83 (Hamilton), in The Federalist 558, 573–74 (Wesleyan 1961) (Jacob E. Cooke, ed). See also Bruce A. Ragsdale, ed, 1 Debates on the Federal Judiciary: A Documentary History 45 (Federal Judicial Center 2013) (suggesting the Hamilton was referring to “experiments in Great Britain and in some states that allowed other court procedures for settling property disputes”).
- 145At the same time, this exception can help to shape the breadth of the limitation on jury trial. See notes 144, 172, 195, and accompanying text.
- 146For instance, in Chauffeurs, which involved whether a jury should hear a case involving a union’s alleged breach of its duty of fair representation, the majority and dissenting opinions examined the best available analogues from 1791—an attorney malpractice action and a breach of fiduciary duty suit—in exploring the jury trial right, even though the factual and legal circumstances of a fair representation case varied from both analogues. See note 31. The Supreme Court also abstracts from historical practice in other constitutional contexts. See, for example, District of Columbia v Heller, 554 US 570, 582 (2008) (characterizing as “bordering on the frivolous” the argument that the only arms protected by the Second Amendment were those in existence at the time of the Amendment’s ratification).
- 147See notes 133–34 and accompanying text.
- 148See, for example, Alden v Maine, 527 US 706, 713 (1999) (interpreting the Eleventh Amendment in accordance with “the Constitution’s structure, its history, and the authoritative interpretations by this Court”).
- 149See Heller, 554 US at 582, 627, quoting United States v Miller, 307 US 174, 179 (1939) (refusing to limit the Second Amendment’s “right to keep and carry arms” to the exact weapons available at the time of the Amendment’s ratification and holding instead that the right was limited to “the sorts of weapons . . . ‘in common use at the time’”).
- 150The level-of-generality problem is common in constitutional analysis, and is often resolved by tailoring constitutional arguments at a more specific level. For example, in Anderson v Creighton, 483 US 635 (1987), the plaintiffs alleged that government officials violated their constitutional rights. To prevail, they needed to show that the constitutional right that the officials allegedly violated was a clearly established rule of constitutional law. Id at 639. As the Court observed:
The operation of this standard [ ] depends substantially upon the level of generality at which the relevant “legal rule” is to be identified. . . . [O]ur cases establish that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.
Id at 639–40. See also R.A.V. v City of St Paul, Minnesota, 505 US 377, 383 (1992) (stating that the Court has adopted a “limited categorical approach” to exempt some speech from First Amendment protection, and noting that recent decisions “have narrowed the scope of the traditional categorical exceptions”); id at 428 (Stevens concurring in the judgment) (stating that “we have consistently construed the ‘fighting words’ exception . . . narrowly”).
- 151See Federalist 83 at 562 (cited in note 144) (describing two views held by supporters and opponents of the Constitution about jury trial, with “the former regard[ing] it as a valuable safeguard to liberty, the latter represent[ing] it as the very palladium of free government”). See also Wellness International Network, Ltd v Sharif, 135 S Ct 1932, 1961 n 1 (2015) (Thomas dissenting), quoting Blakely v Washington, 542 US 296, 306 (2004) (“There is some dispute whether the guarantee of a jury trial protects an individual right, a structural right, or both. . . . My view . . . leaves no doubt: It is a ‘fundamental reservation of power in our constitutional structure.’”).
- 152See Granfinanciera, 492 US at 42 n 4, 54 (noting that Congress may abrogate the right to jury trial in private cases by enacting legislation that establishes a regulatory regime, but only when jury trial would frustrate the objectives of this regime). See also Heller, 554 US at 626 (“Like most rights, the right secured by the Second Amendment is not unlimited.”).
- 153See Bruce Ackerman, The Emergency Constitution, 113 Yale L J 1029, 1030, 1045–56 (2004) (arguing for “a more hard-headed doctrine—one that allows short-term emergency measures but draws the line against permanent restrictions” on civil liberties and further arguing that any emergency measures should contain political checks and balances).
- 154See Chauffeurs, 494 US at 565 & n 4 (describing history, remedy, and the “public rights” exception as the three factors in the Seventh Amendment analysis); Granfinanciera, 492 US at 42 & n 4 (same).
- 155I assume that Congress has authority under Article I to enact such legislation and that Article III courts have subject-matter jurisdiction over the disputes and personal jurisdiction over the parties.
- 156See notes 60–75, 91–92, 116, and accompanying text.
- 157See notes 77–78 and accompanying text.
- 158See note 87 and accompanying text. See also note 128 (discussing comparable grants to the Southwark Fire Court).
- 159See, for example, 18 & 19 Car II, c 7, § 1 (1667), in 5 Statutes of the Realm 601, 601 (stating that tenants affected by the London Fire would likely be “lyeable unto Suites and Actions to compell them to repaire and rebuild,” that the tenants “are not releiveable therein in any ordinary course of Law,” and that legal disputes “if they should not be determined with all speede and without charge would much obstruct the rebuilding of the said Citty”); 48 Geo III, ch 89, § 1 (1808) (on file with author) (stating that “divers Suits and Controversies are likely to arise between the Proprietors of and Persons interested in Houses and Lands [in Chudleigh], tending (if not prevented) to their great Vexation and Damage, and hindering the rebuilding of [Chudleigh]”).
- 160See notes 93–100 and accompanying text.
- 161See note 75 and accompanying text.
- 162See Douglas Laycock, Modern American Remedies: Cases and Materials 14–15, 265 (Aspen 4th ed 2010) (stating that the purpose of remedial law is to restore the plaintiff to the position she would have been in but for the wrong).
- 163In this sense, the fire courts adopted an approach to remedies that sometimes goes under the name of “do good” relief, which attempts to improve society according to a general notion of fairness rather than one of legal entitlement. See id at 307. See also Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv L Rev 1281, 1293, 1302 (1976) (describing how, in public law litigation, “right and remedy are pretty thoroughly disconnected,” so that “[r]elief is not conceived as compensation for past wrong in a form logically derived from the substantive liability . . . ; instead, it is forward looking, fashioned ad hoc on flexible and broadly remedial lines, often having important consequences for many persons”).
- 164See note 101 and accompanying text.
- 165In particular, Parliament required the later fire courts to use juries to establish the value of property taken by the courts for public or rebuilding purposes. For the Great Fire, the Court of Aldermen, rather than the Fire Court, had responsibility for this task. See note 121 and accompanying text.
- 166See notes 104–05, 128–31, and accompanying text.
- 167Indeed, shortly after the London Fire Court was established, a lawyer wrote a text designed, in part, to help landlords and tenants determine the value of property and leases in the wake of the Great Fire. In his dedication of the book to the Fire Court judges, the author stated his hope that the book would help parties to adjust differences in valuation between themselves without resorting to the Fire Court, thus aiding “the Speedy Rebuilding” of London. See Stephen Primatt, The City & Country: Purchaser & Builder A2–A3 (London 1903) (originally published 1667).
- 168See note 90 and accompanying text.
- 169See Chauffeurs, 494 US at 565, quoting Tull v United States, 481 US 412, 417 (1987) (stating that “‘the remedy sought’ . . . is the more important [inquiry] in our analysis”).
- 170See Aetna Health Inc v Davila, 542 US 200, 222 (2004) (Ginsburg concurring), quoting Mertens v Hewitt Associates, 508 US 248, 256 (1993) (stating that “those categories of relief that were typically available in equity . . . [included] injunction, mandamus, and restitution, but not compensatory damages”); Laycock, Modern American Remedies at 380 (cited in note 162) (“It is hornbook law that equity will not act if there is an adequate remedy at law.”); id at 265 (“The injunction is a preventive remedy, because it seeks to prevent harm.”).
- 171Thomas, 473 US at 594.
- 172See Granfinanciera, 492 US at 42 n 4, 54; text accompanying note 139. Indeed, Congress could almost certainly authorize nonjury administrative adjudication in circumstances that meet the four factors outlined in the text. Thus, the principal effect of this narrow exception to the right to civil jury trial is to provide Congress with the option of investing federal judges, rather than agencies, with fact-finding authority.
- 173See notes 32–33 and accompanying text.
- 174See, for example, In re Boise Cascade Securities Litigation, 420 F Supp 99, 103, 105 (WD Wash 1976) (striking a jury demand in a securities fraud case that had already resulted in $50 million in settlements).
- 175See, for example, In re Japanese Electronic Products Antitrust Litigation, 631 F2d 1069, 1074, 1079–89 (3d Cir 1980) (affirming the district court’s refusal to strike a jury under the Seventh Amendment in a case alleging a massive antitrust conspiracy among leading foreign manufacturers of electronics, but holding that the Due Process Clause may require a court to strike a jury “when a jury will not be able to perform its task of rational decisionmaking with a reasonable understanding of the evidence and the relevant legal standards”).
- 176The September 11th attack generated significant litigation among the airlines, the developer of the World Trade Center, victims of the attack, and those who suffered injuries in responding to the attack. See generally In re September 11 Litigation, 751 F3d 86 (2d Cir 2014); In re September 11 Property Damage Litigation, 650 F3d 145 (2d Cir 2011); In re World Trade Center Lower Manhattan Disaster Site Litigation, 66 F Supp 3d 477 (SDNY 2015); In re September 11th Litigation, 590 F Supp 2d 535 (SDNY 2008). For a small slice of the Hurricane Katrina litigation, see In re FEMA Trailer Formaldehyde Products Liability Litigation (Louisiana Plaintiffs), 713 F3d 807, 810–11 (5th Cir 2013) (holding that the government was immune from damages resulting from temporary housing that it provided to victims); In re Katrina Canal Breaches Litigation, 696 F3d 436, 444–48 (5th Cir 2012) (finding that the United States was immune from suit when damage had resulted from waters released by flood-control activity); In re Katrina Canal Breaches Litigation, 628 F3d 185, 189 (5th Cir 2010) (reversing the certification of a class action for victims of Hurricane Katrina). On the BP oil spill, see, for example, In re Deepwater Horizon, 772 F3d 350, 353 (5th Cir 2014) (holding that entry of partial summary judgment against the owners of a leaking well did not violate their Seventh Amendment rights); In re Deepwater Horizon, 744 F3d 370, 374–78 (5th Cir 2014) (affirming the district court’s interpretation of the parties’ settlement agreement, which permitted compensation on a broader basis than the defendant believed proper). The mortgage-crisis litigation was spread across the entire nation, and included both thousands upon thousands of individual foreclosure cases as well as litigation against major institutional players whose actions allegedly precipitated the crisis. See Lydia Nussbaum, ADR’s Place in Foreclosure: Remedying the Flaws of a Securitized Housing Market, 34 Cardozo L Rev 1889, 1903–08 (2013) (describing the breadth of the foreclosure crisis); Matthew Goldstein, Bank of America to Pay $6.3 Billion to Settle Mortgage Securities Suit (NY Times, Mar 26, 2014), archived at http://perma.cc/F748
-CGKT (describing a $6.3 billion settlement against Bank of America for its role in selling mortgage-backed securities).
- 177See Air Transportation Safety and System Stabilization Act, Pub L No 107-42, 115 Stat 230 (2001).
- 178Air Transportation Safety and System Stabilization Act § 408(b)(2), 115 Stat at 241:
The substantive law for decision in any such suit [seeking damages against airlines as a result of the September 11th crashes] shall be derived from the law, including choice of law principles, of the State in which the crash occurred unless such law is inconsistent with or preempted by Federal law.
- 179This direction was given to the special master who ran the September 11th Compensation Fund. Air Transportation Safety and System Stabilization Act § 405(b)(1)(B)(ii), 115 Stat at 238.
- 180See Air Transportation Safety and System Stabilization Act § 101(a)(2), 115 Stat at 230.
- 181Air Transportation Safety and System Stabilization Act § 403, 115 Stat at 237 (“It is the purpose of this title to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the terrorist-related aircraft crashes of September 11, 2001.”).
- 182In the wake of the 2008 mortgage foreclosure crisis, Congress and the president responded with legislation and executive actions that made it easier for home owners to secure refinancing or modification of existing mortgages based on property values and income levels. See, for example, Mortgage Reform and Anti-Predatory Lending Act § 1482, Pub L No 111-203, 124 Stat 2136, 2203 (2010), codified at 12 USC § 5219a (authorizing the secretary of the treasury to enact Home Affordable Modification Program guidelines); Emergency Economic Stabilization Act of 2008 § 110, Pub L No 110-343, 122 Stat 3765, 3775, codified at 12 USC § 5220 (requiring federal agencies that hold mortgages to assist home owners); Nussbaum, 34 Cardozo L Rev at 1909–12 (cited in note 176) (discussing federal programs that permitted home owners to refinance or modify mortgages).
- 183Express congressional delegation of this power is required. Congress often fails to state whether jury trial is available, thus leaving courts to determine the question under the Seventh Amendment. See Tull, 481 US at 425 (noting that the statute in question “did not explicitly state whether juries or trial judges were to fix the civil penalties”); Lehman v Nakshian, 453 US 156, 162 (1981) (stating that Congress “failed explicitly to” provide for jury trial in the relevant statute). Congressional silence would be insufficient to trigger a federal court’s capacity to suspend jury trial.
- 184See, for example, Michael D. Sant’Ambrogio and Adam S. Zimmerman, The Agency Class Action, 112 Colum L Rev 1992, 2002–07 (2012); Margaret H. Lemos, Aggregate Litigation Goes Public: Representative Suits by State Attorneys General, 126 Harv L Rev 486, 492–510 (2012); Adam S. Zimmerman, Presidential Settlements, 163 U Pa L Rev 1393, 1403–07, 1421–35 (2015).
- 185See Zimmerman, 163 U Pa L Rev at 1442–52 (cited in note 184).
- 186Id at 1453–61; Lemos, 126 Harv L Rev at 542–46 (cited in note 184).
- 187For a general discussion of these concerns in the context of a class action, see In the Matter of Rhone–Poulenc Rorer Inc, 51 F3d 1293, 1298–304 (7th Cir 1995).
- 188There are only two substantive mentions of the fire courts in American law reviews—one in 1891 and one in 2012—and both were brief. See Marc L. Roark, Disease, War, and Waste: A Consideration of External Factors on the Trade Fixtures Doctrine between 1324-1850, 43 Cumb L Rev 1, 4 (2012) (mentioning the London Fire Court in the context of developing a thesis that “disruptive events” sometimes “have little to no impact on the ongoing legal regimes”); Ezra R. Thayer, Note, Judicial Legislation: Its Legitimate Function in the Development of the Common Law, 5 Harv L Rev 172, 180 & n 6 (1891) (citing the fire courts as an example of “judges sent out to decide controversies according to their own judgment in each particular case, the mere abitrium boni viri”). Ezra R. Thayer, the son of noted constitutional scholar and Harvard Law School Professor James Bradley Thayer, was a student when he wrote his note; he later became dean of Harvard Law School. See William H. Dunbar, Ezra Ripley Thayer, 29 Harv L Rev 1, 1–2 (1915). There was a passing, nonsubstantive reference to the London Fire Court in another note. See Erik Stock, Note, “We Were All Born on It. And Some of Us Was Killed on It”: Adopting a Transformative Model in Eminent Domain Mediation, 23 Ohio St J Disp Res 687, 692 n 36 (2008) (mentioning a surveyor, Robert Hooke, whose postfire surveys were used by the London Fire Court). While Hooke made rare appearances in the Fire Court, the note confuses the Fire Court with the Court of Aldermen and Court of Common Council, which routinely called on Hooke’s services to determine property lines. See P.E. Jones and T.F. Reddaway, Introduction, in Peter Mills and John Oliver, 1 The Survey of Building Sites in the City of London after the Great Fire of 1666 x, xiii–xxii (London Topographical Society 1967).
- 189See Randy J. Kozel, Settled versus Right: Constitutional Method and the Path of Precedent, 91 Tex L Rev 1843, 1896 (2013) (“[T]he doctrine of stare decisis is founded on the premise that the value of leaving the law settled must ultimately be weighed against the value of getting the law right. Negotiating that tension . . . requires the integration of interpretive methodology as informed by underlying normative premises.”) (citation omitted).
- 190See notes 1–7 and accompanying text.
- 191US Const Amend VII (emphasis added).
- 192See notes 8–36 and accompanying text.
- 193See text accompanying note 6; Jeffrey M. Shaman, The End of Originalism, 47 San Diego L Rev 83, 93 (2010) (arguing that judges who “engage in originalist interpretation [ ] recreate the past according to their own visions, including, it should be said, their own values”).
- 194See notes 10, 22, and accompanying text.
- 195See notes 169–72 and accompanying text.
- 196See notes 32–33 and accompanying text.
- 197For a recent appraisal of the issue, see Oldham, 71 Ohio St L J at 1051–53 (cited in note 34).
- 198See note 34 and accompanying text.
- 199See Complex Litigation: Statutory Recommendations and Analysis 7 (American Law Institute 1994) (noting that, although “‘[c]omplex litigation’ has no fixed definition,” one meaning is “multiparty, multiforum litigation” involving “[r]epeated relitigation of the common issues . . . [that] unduly expends the resources of attorney and client, burdens already overcrowded dockets, . . . [and] results in disparate treatment for persons harmed by essentially identical or similar conduct”).
- 200See Ackerman, 113 Yale L J at 1030–32 (cited in note 153) (arguing that national crises may in some circumstances allow temporary alterations in constitutional liberties).
- 201See Solum, Book Review, 91 Tex L Rev at 154–56 (cited in note 4) (arguing that a common core of all originalist approaches is the claim that history binds or constrains judges in constitutional interpretation).