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.


In constitutional adjudication, history matters.1 Although agreement on this point is widespread, debates rage around two subsidiary questions: How much does history matter, and which history matters?2 “How much does history matter” concerns the weight that historical evidence should receive in relation to other interpretive or constructive guides such as the Constitution’s text, purpose, and structure; precedent; moral norms; and present-day political, social, and economic realities.3 Originalists, for instance, give history near-conclusive weight, at least for ambiguous constitutional texts;4 but living constitutionalists are likely to value historical evidence less than modern realities in determining constitutional boundaries.5 “Which history matters” encompasses issues of time frame (what is the relevant historical period?), scope (what evidence from this period is relevant?), and indeterminacy (what happens when the relevant evidence from the relevant period is conflicting or absent?). For example, all originalists agree that the relevant time frame is the point of a constitutional provision’s ratification, but they diverge on the question of scope; “old originalists” limit the scope of historical inquiry to the evidence of the drafters’ intent, while “new originalists” shift the inquiry to the evidence of the original public meaning.6 For living constitutionalists, the time frame expands to include the nation’s history subsequent to ratification, with the scope of the inquiry as broad as all past events that help to shape a constitutional provision for modern needs.7

Almost uniquely among constitutional provisions, the Seventh Amendment’s guarantee of civil jury trial engenders few debates about weight, time frame, scope, or indeterminacy.8 On the issue of weight, the Supreme Court has broken the Seventh Amendment’s analysis into two principal components. The first is to determine whether the Amendment requires a jury to try a particular claim.9 To answer this question, the Court turns to three factors: “first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries.”10

 Today, the third factor is rarely in play.11 The first factor (the custom before the merger of law and equity) requires a historical inquiry. The second factor (the remedy sought) is historically inspired, given that damages were generally awarded at common law, which used juries, and injunctions were generally awarded in equity, which did not.12

In weighing the pure historical inquiry of the first factor in relation to the rough-and-ready historical inquiry of the second factor, the Court has wobbled a bit over time. In 1990, in Chauffeurs, Teamsters and Helpers Local No 391 v Terry,13 the Court identified the second factor as “more important in our analysis.”14 More recent cases, however, suggest that the importance of the first factor’s pure historical inquiry is on the rise. In Feltner v Columbia Pictures Television, Inc,15 which involved a claim by a copyright holder seeking jury trial on the issue of statutory damages, the Court stated that it would “examine both the nature of the statutory action and the remedy sought”16—without indicating, as it had eight years earlier in Chauffeurs, that the “remedy sought” factor was more important.17 Likewise, City of Monterey v Del Monte Dunes at Monterey, Ltd18 held that a jury was properly impaneled in a § 1983 action akin to an inverse-condemnation proceeding.19 In examining whether a § 1983 claim was jury triable, the justices’ opinions focused almost exclusively on the proper historical analogue in English practice.20

The second step in the Seventh Amendment’s analysis asks whether a jury must determine specific factual issues within a jury-triable claim.21 In answering this question, the Court has identified four factors: the “common-law practice at the time of the framing” of the Seventh Amendment, “precedent,” “the relative interpretive skills of judges and juries,” and “the statutory policies that ought to be furthered by the allocation” of the fact-finding function.22 As with the first step, the weight given to the historical inquiry is considerable: “when possible, ‘ . . . the historical method’” should be used, and precedential or functional considerations should be employed “[w]here history does not provide a clear answer.”23

On issues of time frame and scope, there is no dispute: the Seventh Amendment preserves “[t]he right of trial by jury . . . which existed under the English common law when the Amendment was adopted.”24 Thus, the relevant time frame is 1791, when the Seventh Amendment was ratified. The relevant scope of evidence from 1791 is the English common-law courts: English common-law courts employed juries, while equity did not.25

On the issue of indeterminacy, information about the English legal system in the late eighteenth century is plentiful, so that the problem of conflicting or absent evidence has tended to arise in only three limited, overlapping situations. First, because the boundary between common law and equity was ever shifting and the jurisdiction of the two systems sometimes extended over the same matters, an approach that picks an exact point in time (1791) and then sifts the evidence at that point for an exact answer (jury triable or not) sometimes fails to capture the fluidity of jury trial practices in eighteenth-century England.26 Second, in rare instances, the historical evidence is so lacking that no conclusion about the proper analogue between a modern jury-triable question and eighteenth-century English practice can be drawn.27

Finally, the historical inquiry often requires reasoning by anachronism. When a present-day claim has a precise analogue to an action at common law, the jury trial question is easy.28 But many modern American claims—especially those alleging statutory or regulatory violations—have no precise analogue in the common-law forms of action or in equity, thus requiring courts to ask whether a modern claim or factual issue, had it existed back in 1791, would have been tried to a jury or determined by the chancellor. The problem was already evident in 1830, when Justice Joseph Story argued that the Seventh Amendment’s right to civil jury trial extended to claims of statutory violations that neither existed at common law nor were available in 1791.29 A modern example is Chauffeurs, in which the claimed violation—breach of a union’s duty of fair representation—was not cognizable at common law in 1791.30 The plurality, one of the concurrences, and the dissent split over whether the best analogy to such a duty was a common-law action for legal malpractice or an equitable suit for breach of a trustee’s fiduciary duty.31

Perhaps the most vexing issue of indeterminacy arises from the technical nature or massive scope of some modern civil lawsuits. Such complexity in litigation was unknown at common law. As a result, some courts32 and many scholars33 have explored whether the Seventh Amendment contains a “complexity exception” that allows courts to substitute judicial fact-finding for jury fact-finding in complex litigation.34

When the historical record is indeterminate, all is not lost. In the face of conflicting or absent evidence of eighteenth-century English practice, the Court has tended to rely more heavily on the remaining factors that bear on the right to jury trial.35 These occasional failings in the historical record have not led to general dissatisfaction with the Seventh Amendment’s focus on Founding-era English practice.36 On the contrary, the text of the Seventh Amendment (that the right to jury trial “shall be preserved”) invites a historical analysis. And the relevant evidence (English legal practice) is bounded in scope, has been methodically analyzed by generations of historians, and avoids the value-laden inquiries into “intent” or “public meaning” that often plague historically grounded interpretive or constructive inquiries into other constitutional texts.

But history sometimes holds a surprise. Part I of this Article uncovers evidence that unsettles the traditional understanding of jury trials in seventeenth- and eighteenth-century English practice. Although their workings have since been lost to history, Parliament established special “courts of judicature” to resolve disputes arising out of fires that ravaged urban areas in England from the middle of the seventeenth century until the early nineteenth century. The most famous of the fires—the Great Fire of London in 1666—destroyed five-sixths of the City of London, including 13,200 homes and shops, 87 churches, and 44 guildhalls, along with wharves, warehouses, jails, and public buildings.37 As devastating as the social dislocation resulting from the Great Fire was,38 the threatened economic devastation was greater, for in a world of limited investment opportunities, a great deal of London’s wealth was tied up in the leases and subleases of buildings turned to ash.39 The “Fire Court” established in the wake of the Great Fire issued 1,585 decrees;40 its mission was not only to resolve legal disputes over ownership, possession, and rents, but also to encourage London’s expeditious rebuilding.41 Later fire courts resolved fewer cases (because the damage was less extensive than it had been in London) but carried the same mission.42

For Seventh Amendment purposes, these courts contained one critical feature. In the act establishing London’s Fire Court, Parliament gave the common-law judges who composed the court the discretion to employ—or not to employ—juries.43 The records of the Fire Court reveal that in no case did the judges impanel a jury.44 Later acts contained equivalent provisions regarding juries.45

Parliament’s power to suspend the right to a civil jury trial in the fire cases was established well before 1791 and continued to be exercised into the nineteenth century. In light of this history, Part II argues that Congress enjoys the historical license to delegate to federal judges a comparable authority to resolve disputes without civil juries. While the history does not give Congress an all-purpose writ to suspend the right to jury trial in complex cases, the history of the fire courts permits Congress to delegate to federal judges the authority to dispense with civil juries when suspension is a necessary and tailored component of legislation validly enacted to foster recovery from a national crisis.

This fact has important implications. Whether responding to an economic collapse like the mortgage crisis in the late 2000s or a catastrophe like September 11th, Congress has often turned to administrative solutions to award or limit damages arising from disaster.46 The history of the fire courts shows that, under certain conditions, Congress has another streamlined option for distributing monetary relief that is integral to fostering national recovery: Article III courts, which can blend equitable (injunctive) and common-law (compensatory) powers without needing to impanel a jury.

The Conclusion explores a final question: whether this history should alter understandings about the Seventh Amendment’s right to jury trial that became settled in the absence of such evidence. From a variety of interpretive standpoints, the answer is yes. History matters.

  • 1. See, 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”). See also Mitchell N. Berman, Originalism Is Bunk, 84 NYU L Rev 1, 21 (2009) (noting that the belief that “the original character of the U.S. Constitution . . . ‘matters’ or ‘is relevant’ to proper constitutional interpretation . . . [is] a trivial thesis without dissenters”); Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Georgetown L J 1765, 1766 (1997) (“[V]irtually all practitioners of and commentators on constitutional law accept that original meaning has some relevance to constitutional interpretation.”); H. Jefferson Powell, Rules for Originalists, 73 Va L Rev 659, 695 (1987) (“Responsible, intellectually respectable history in my opinion is an inextricable and essential element in our discussions of the Republic’s fundamental law.”).
  • 2. Professor Darrell A.H. Miller has posed similar questions, trained specifically on the interpretations of the Second and Seventh Amendments. See Darrell A.H. Miller, Text, History, and Tradition: What the Seventh Amendment Can Teach Us about the Second, 122 Yale L J 852, 876–86, 907–17 (2013) (positing three questions: “[w]hose history,” “[h]ow much history,” and “[w]hat [about] . . . conflicting or indeterminate history?”).
  • 3. See Philip Bobbitt, Constitutional Fate: Theory of the Constitution 7–8 (Oxford 1982) (describing “historical, textual, structural, prudential, and doctrinal” typologies of constitutional interpretation and construction); Randy J. Kozel, The Scope of Precedent, 113 Mich L Rev 179, 212–22 (2014) (discussing common-law constitutionalism, originalism, pragmatism, conventionalism, and normativity as methods of constitutional interpretation). See also generally James E. Fleming, Fidelity to Our Imperfect Constitution, 65 Fordham L Rev 1335 (1997) (arguing for a “moral reading” of the Constitution).
  • 4. See Lawrence B. Solum, Book Review, Faith and Fidelity: Originalism and the Possibility of Constitutional Redemption, 91 Tex L Rev 147, 154 (2012) (stating that originalists agree that “the original meaning of each provision of the Constitution was fixed at the time of its framing and ratification” and that “original meaning should have binding or constraining force”).
  • 5. See David A. Strauss, The Living Constitution 1 (Oxford 2010) (“A ‘living constitution’ is one that evolves, changes over time, and adapts to new circumstances, without being formally amended.”).
  • 6. See Randy E. Barnett, The Gravitational Force of Originalism, 82 Fordham L Rev 411, 412–15 (2013) (comparing “old originalism” with “[n]ew [o]riginalism”).
  • 7. Dorf, 85 Georgetown L J at 1811 (cited in note 1) (arguing that postenactment “historical events often inform constitutional interpretation more directly and in a way that reinforces” originalist modes of constitutional interpretation).
  • 8. The Seventh Amendment provides in full:

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

    US Const Amend VII. The first clause guarantees the right to civil jury trial; the second clause, known as the Reexamination Clause, concerns matters beyond the scope of this Article.

    The Seventh Amendment is one of the few guarantees in the Bill of Rights that has not—or at least not yet—been incorporated through the Fourteenth Amendment and made applicable to the states. See González–Oyarzun v Caribbean City Builders, Inc, 798 F3d 26, 29 (1st Cir 2015) (per curiam) (“The Supreme Court has consistently held that states are not constitutionally required to provide a jury trial in civil cases.”). Incorporation of the Seventh Amendment has never been a burning issue, because forty-eight states (Louisiana and Wyoming being the exceptions) have comparable jury trial guarantees in their constitutions. See Robert Wilson, Free Speech v. Trial by Jury: The Role of the Jury in the Application of the Pickering Test, 18 Geo Mason U CR L J 389, 401 & n 116 (2008). This Article examines only the scope of the jury trial right under the Seventh Amendment—in other words, in federal court.

  • 9. See, for example, Chauffeurs, Teamsters and Helpers Local No 391 v Terry, 494 US 558, 561 (1990) (holding that the Seventh Amendment required a jury trial of a claim that a union violated its duty of fair representation); Granfinanciera, SA v Nordberg, 492 US 33, 36 (1989) (holding that a jury trial was required for a trustee’s claim that a debtor had fraudulently transferred money to a defendant who had not submitted a claim against the bankruptcy estate).
  • 10. Ross v Bernhard, 396 US 531, 538 n 10 (1970).
  • 11. Before Ross, the Court had used only the first two factors to decide if a claim was jury triable. See, for example, Parsons v Bedford, 28 US (3 Pet) 433, 446–47 (1830). Ross introduced the third “practical abilities and limitations of juries” factor. Ross, 396 US at 538 n 10. See also In re Japanese Electronic Products Antitrust Litigation, 631 F2d 1069, 1079–80 (3d Cir 1980). Although this third factor sparked a twenty-year debate among courts and commentators about courts’ ability to strike a jury demand whenever a case was complex, see notes 32–33 and accompanying text, the Supreme Court ultimately confined the third factor 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.” Granfinanciera, 492 US at 42 n 4. See also note 34 and accompanying text.
  • 12. See Chauffeurs, 494 US at 570, quoting Curtis v Loether, 415 US 189, 196 (1974) (“Generally, an action for money damages was ‘the traditional form of relief offered in the courts of law.’”); Tull v United States, 481 US 412, 417 (1987) (“Prior to the Amendment’s adoption, a jury trial was customary in suits brought in the English law courts. In contrast, those actions that are analogous to 18th-century cases tried in courts of equity or admiralty do not require a jury trial.”); William Holdsworth, 1 A History of English Law 458, 466 (Methuen 7th ed 1956) (A.L. Goodhart and H.G. Hanbury, eds) (describing equity’s ability to issue injunctive relief that common-law courts could not).
  • 13. 494 US 558 (1990).
  • 14. Id at 565. See also Curtis, 415 US at 195–96 (noting that, although a claim’s analogy to “tort actions recognized at common law” was relevant, the “[m]ore important” consideration was that “the relief sought here—actual and punitive damages—is the traditional form of relief offered in the courts of law”).
  • 15. 523 US 340 (1998).
  • 16. Id at 342, 348.
  • 17. The bulk of the Court’s analysis in Feltner focused on historical English practice, see id at 347–52, although the Court buttressed that evidence with the argument that, as a general rule, “monetary relief is legal.” Id at 352.
  • 18. 526 US 687 (1999).
  • 19. Id at 694.
  • 20. See id at 715–18 (Kennedy) (plurality):

    [A]s a matter of historical practice, when the government has taken property without providing an adequate means for obtaining redress, suits to recover just compensation have been framed as common-law tort actions. . . . [A]nd in these actions, as in other suits at common law, there was a right to trial by jury.

    See also id at 724 (Scalia concurring in part and concurring in the judgment), citing Feltner, 523 US at 348 (“The Seventh Amendment inquiry looks first to the ‘nature of the statutory action.’ . . . The question before us, therefore, is . . . what common-law action is most analogous to a § 1983 claim.”); City of Monterey, 526 US at 734 (Souter concurring in part and dissenting in part) (“Like the Court, I am accordingly remitted to a search for any analogy that may exist and a consideration of any implication going to the substance of the jury right that the results of that enquiry may raise.”). The nature of the relief requested (damages) did not bear significantly on any of the opinions, although it entered briefly into the majority’s analysis. See id at 711 (“Because Del Monte Dunes’ statutory suit sounded in tort and sought legal relief, it was an action at law.”).

  • 21. See, for example, Markman v Westview Instruments, Inc, 517 US 370, 391 (1996) (holding that a judge, not a jury, should decide the proper construction of a patent, even when a jury would decide other issues regarding patent infringement).

    Beyond these two analytical steps, the Amendment influences certain other issues relevant to the allocation of decisionmaking power between judges and juries. For instance, if a factual issue is relevant to both a claim that would be tried by a jury and a claim that would be tried by a judge, the Supreme Court has held that the jury should decide the overlapping facts. Beacon Theatres, Inc v Westover, 359 US 500, 510–11 (1959) (“[O]nly under the most imperative circumstances . . . can the right to a jury trial of legal issues be lost through prior determination of equitable claims.”). Likewise, in determining whether a disputed issue is a question of law (which a judge decides) or a question of fact (which a jury may decide), functional considerations about a jury’s capacity are often relevant. See Hana Financial, Inc v Hana Bank, 135 S Ct 907, 911 (2015) (“[W]e have long recognized across a variety of doctrinal contexts that, when the relevant question is how an ordinary person or community would make an assessment, the jury is generally the decisionmaker that ought to provide the fact-intensive answer.”).

  • 22. Markman, 517 US at 384. In its only case applying Markman’s jury trial analysis, the Court applied three of these factors: “history,” “precedent,” and “functional considerations.” City of Monterey, 526 US at 718.
  • 23. City of Monterey, 526 US at 718, quoting Markman, 517 US at 378, 384. Moreover, in City of Monterey, the majority’s treatment of functional considerations was to some extent a rehash of its historical and precedential arguments. See City of Monterey, 526 US at 720–21.
  • 24. Baltimore & Carolina Line, Inc v Redman, 295 US 654, 657 (1935). See also Curtis, 415 US at 193 (“[T]he thrust of the [Seventh] Amendment was to preserve the right to jury trial as it existed in 1791.”); Dimick v Schiedt, 293 US 474, 476 (1935) (“In order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of adoption of that constitutional provision in 1791.”). The relevant scope (English practice) was established in United States v Wonson, 28 F Cases 745, 750 (CC D Mass 1812). Although Wonson was a circuit court opinion that concerned the Reexamination Clause, Justice Joseph Story’s opinion that the “common law” to which the Seventh Amendment refers was English common law effectively settled the question. See id (“Beyond all question, the common law [ ] alluded to [in the Seventh Amendment] is not the common law of any individual state, (for it probably differs in all), but it is the common law of England, the grand reservoir of all our jurisprudence.”). See also Dimick, 293 US at 477 (examining English precedents to determine the scope of the Seventh Amendment’s jury trial provision). Wonson did not, however, establish the proper time frame; Dimick and Redman established 1791 as the relevant date. See Margaret L. Moses, What the Jury Must Hear: The Supreme Court’s Evolving Seventh Amendment Jurisprudence, 68 Geo Wash L Rev 183, 187–92 (2000) (showing that the resort to England’s common law as of 1791 was “a twentieth-century development”). See also Thompson v Utah, 170 US 343, 349–50 (1898) (holding that the criminal jury trial provision in Article III should be interpreted “with reference to the meaning affixed to [the words ‘jury’ and ‘trial by jury’] in the law as it was in this country and in England at the time of the adoption of that instrument”).
  • 25. See Patrick Devlin, Jury Trial of Complex Cases: English Practice at the Time of the Seventh Amendment, 80 Colum L Rev 43, 44 (1980) (“[I]f the case could not be tried by jury, it could not in 1791 be tried at common law in any other way: until 1854 trial by jury was the only mode of trial known to the common law.”).
  • 26. See Chauffeurs, 494 US at 577 (Brennan concurring in part and concurring in the judgment), quoting Fleming James Jr, Right to a Jury Trial in Civil Actions, 72 Yale L J 655, 658 (1963) (“[T]he line between law and equity (and therefore between jury and non-jury trial) was not a fixed and static one.”) (brackets in original); Holdsworth, 1 A History of English Law at 445–76 (cited in note 12) (describing the evolution of equity jurisdiction from medieval to modern times and the “increase of [equity’s] business” over the course of the eighteenth century); F.W. Maitland, Equity: Also the Forms of Action at Common Law; Two Courses of Lectures 14 (Cambridge 1910) (A.H. Chaytor and W.J. Whittaker, eds) (“[I]n no general terms can we describe either the field of [English] equity or the distinctive character of equitable rules.”); David L. Shapiro and Daniel R. Coquillette, The Fetish of Jury Trial in Civil Cases: A Comment on Rachal v. Hill, 85 Harv L Rev 442, 449 (1971) (noting that, during the late eighteenth century, “significant changes in the relationship between law and equity were in process” in the English system); Galloway v United States, 319 US 372, 392 (1943) (noting “the uncertainty and the variety of conclusion which follows from an effort at purely historical accuracy”).

    An excellent example of conflicting signals in the historical record is the intensive analysis done on two seventeenth-century Chancery suits, Clench v Tomley, 21 Eng Rep 13 (Ch 1603), and Blad v Bamfield, 36 Eng Rep 992 (Ch 1674), from which scholars drew opposing conclusions about the general willingness of the Chancery to remove a case from a common-law jury. Compare Devlin, 80 Colum L Rev at 74–76 (cited in note 25) (arguing that Clench and Blad were “clear example[s] of the Chancellor’s willingness and ability to intervene in a common law action when he felt a jury unfit to decide a case”), with Morris S. Arnold, A Historical Inquiry into the Right to Trial by Jury in Complex Civil Litigation, 128 U Pa L Rev 829, 840–46 (1980) (describing why these cases do not suggest a power to strike juries in complex cases), and James S. Campbell and Nicholas Le Poidevin, Complex Cases and Jury Trials: A Reply to Professor Arnold, 128 U Pa L Rev 965, 974–85 (1980) (arguing in response to then-Professor Morris Arnold that the substantive issues in Clench “would [ ] have taxed the mind of a seventeenth-century juror” and therefore justified the chancellor’s intervention in the case).

  • 27. The classic example of absent evidence is Markman, in which the issue was the historical practice of juries construing patent claims. Markman, 517 US at 378–84. Because patent litigation was nascent at the end of the eighteenth century, no clear historical practice had emerged. Id at 380 (describing the “absence of an established practice [on using juries for patent claim construction] . . . , given the primitive state of jury patent practice at the end of the 18th century, when juries were still new to the field”). One reason that historical evidence was lacking in Markman is that its analysis was entirely ahistorical; in 1791, when a case was tried to a jury, the jury determined all the facts. See The Supreme Court 1995 Term: Leading Cases, 110 Harv L Rev 1, 272 (1996) (noting that Markman developed a “novel inquiry of its own design” and was an “extension of the historical method . . . [that] is not quite as consistent with precedent as the Court implied”). See also James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries 9–15 (NYU 2006) (stating that “[i]t was customary to send ‘the whole matter’ to the jury,” but describing devices through which a judge could overturn the jury’s finding on a particular fact after trial).
  • 28. For instance, a modern breach of contract claim seeking damages requires jury fact-finding because in 1791 the predecessors of a breach of contract claim—the writs of assumpsit and debt—were common-law actions. See J.H. Baker, An Introduction to English Legal History 282–90 (Butterworths 2d ed 1979) (describing the evolution from the common-law forms of action to modern contract law).
  • 29. Parsons, 28 US (3 Pet) at 446–47 (holding that the Seventh Amendment applied to “suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered”).
  • 30. Chauffeurs, 494 US at 565–66 (Marshall) (plurality) (“An action for breach of a union’s duty of fair representation was unknown in 18th-century England; in fact, collective bargaining was unlawful.”).
  • 31. Compare id at 569–70 (Marshall) (plurality) (finding “the malpractice analogy less convincing than the trust analogy” but ultimately stating that the historical inquiry “leaves us in equipoise”), with id at 582 (Stevens concurring in part and concurring in the judgment) (“I believe the duty of fair representation action resembles a common-law action against an attorney for malpractice more closely than it does any other form of action.”), and id at 586 (Kennedy dissenting) (“[T]he trust analogy is the controlling one here.”).
  • 32. For federal decisions striking a jury trial, see ILC Peripherals Leasing Corp v International Business Machines Corp, 458 F Supp 423, 444–49 (ND Cal 1978); Bernstein v Universal Pictures, Inc, 79 FRD 59, 65–71 (SDNY 1978); In re Boise Cascade Securities Litigation, 420 F Supp 99, 101–05 (WD Wash 1976). See also Towers v Titus, 5 Bankr 786, 789–97 (ND Cal 1979) (applying the three Ross factors and finding that, under each factor, the issues were equitable, and noting on the third factor that “the size of the litigation and, more important[ly], the complexity of the relationships among the parties” made a rational jury decision impossible). Another district court struck a jury, but was reversed on appeal. Cotten v Witco Chemical Corp, 651 F2d 274, 276 (5th Cir 1981) (leaving open the possibility of a complexity exception on extraordinary facts). The Third Circuit refused to find a complexity exception in the Seventh Amendment, but held that a jury might be struck on Fifth Amendment due process grounds. See Japanese Electronic Products, 631 F2d at 1079–89. For federal cases refusing to strike a jury demand despite the complexity of the case, see Brisk v City of Miami Beach, Florida, 726 F Supp 1305, 1314–15 (SD Fla 1989); Kian v Mirro Aluminum Co, 88 FRD 351, 354–56 (ED Mich 1980); Davis–Watkins Co v Service Merchandise Co, 500 F Supp 1244, 1251–52 (MD Tenn 1980); In re U.S. Financial Securities Litigation, 609 F2d 411, 431 (9th Cir 1979). See also Loral Corp v McDonnell Douglas Corp, 558 F2d 1130, 1132–33 (2d Cir 1977) (affirming the striking of a jury demand when the case would have exposed a jury to classified information and the parties arguably waived the right to jury trial by contract).

    Although not bound by the Seventh Amendment, see note 8, a few state courts have also examined the same issue under the comparable jury trial provisions in their state constitutions. See, for example, Kenney v Scientific, Inc, 512 A2d 1142, 1144–51 (NJ Super 1986) (striking the jury demand), revd, 517 A2d 484 (NJ App 1986) (reinstating the jury demand); S.P.C.S., Inc v Lockheed Shipbuilding and Construction Co, 631 P2d 999, 1002 (Wash App 1981) (giving discretion to the trial court to try some issues to the bench and some to the jury).

  • 33. During the 1970s and 1980s, the possibility of a “complexity exception” to the Seventh Amendment was one of the most hotly debated issues in American law reviews. For a sliver of the debate, see generally Arnold, 128 U Pa L Rev 829 (cited in note 26); Campbell and Le Poidevin, 128 U Pa L Rev 965 (cited in note 26); Devlin, 80 Colum L Rev 43 (cited in note 25); Roger W. Kirst, The Jury’s Historic Domain in Complex Cases, 58 Wash L Rev 1 (1982); Richard O. Lempert, Civil Juries and Complex Cases: Let’s Not Rush to Judgment, 80 Mich L Rev 68 (1981); Douglas King, Comment, Complex Civil Litigation and the Seventh Amendment Right to a Jury Trial, 51 U Chi L Rev 581 (1984); Note, The Case for Special Juries in Complex Civil Litigation, 89 Yale L J 1155 (1980); Montgomery Kersten, Note, Preserving the Right to Jury Trial in Complex Civil Cases, 32 Stan L Rev 99 (1979); Note, The Right to a Jury Trial in Complex Civil Litigation, 92 Harv L Rev 898 (1979).
  • 34. Although the Court has never addressed the matter directly, its recent opinions provide little hope for a “complexity exception.” For instance, in Tull, the Court relied exclusively on the first two factors from Ross (historical practice and the nature of the relief requested) to determine the scope of a jury trial right; it noted that the third factor—the “practical abilities and limitations of juries” factor that had sparked the debate over the existence of a complexity exception—had been used only to justify the elimination of juries in administrative proceedings, and had never been used “as an independent basis for extending the right to a jury trial under the Seventh Amendment.” Tull, 481 US at 418 n 4. See also Granfinanciera, 492 US at 42 n 4. Despite this discouraging tone, some scholars continue to press for such an exception. See, for example, James Oldham, On the Question of a Complexity Exception to the Seventh Amendment Guarantee of Trial by Jury, 71 Ohio St L J 1031, 1051–53 (2010) (advocating for a complexity exception in light of eighteenth-century procedural devices through which judges controlled juries in major commercial disputes).
  • 35. See notes 11, 17, and accompanying text.
  • 36. Justice William Brennan demonstrated the greatest disagreement with the historical test, ultimately concluding that the historical inquiry should be abandoned in favor of an analysis principally focused on whether the relief sought in the case was historically available from the common-law courts. See Chauffeurs, 494 US at 574–75 (Brennan concurring in part and concurring in the judgment) (arguing that the Court “has repeatedly discounted the significance of” English practice in 1791, so that it is “not equal in weight” to the “nature of the remedy” factor and should be “dispense[d] with [ ] altogether”). Even this approach, which no other justice adopted, is inspired by historical English practice.
  • 37. See Walter George Bell, The Great Fire of London in 1666 174, 210, 223–24 (John Lane 2d ed 1920); T.F. Reddaway, The Rebuilding of London after the Great Fire 26 (Jonathan Cape 1940). The fire also consumed considerable property beyond the walls of the City. See Bell, The Great Fire of London in 1666 at 174 (cited in note 37).
  • 38. Because the population of London was unknown, estimates about the number of people left homeless by the fire vary widely. John Evelyn, a contemporary diarist, thought that 200,000 had fled into Islington and Highgate, two of London’s near suburbs. See 2 The Diary of John Evelyn 258 (MacMillan 1906) (entry for Sept 7, 1666). Given that the population of the City in 1666 was likely less than 100,000, a figure of 75,000 displaced residents is more reasonable. See Stephen Porter, The Great Fire of London 71 (Sutton 1998) (giving a range of 65,000 to 80,000 residents left homeless, with 76,500 being a likely estimate).
  • 39. See William C. Baer, The Institution of Residential Investment in Seventeenth-Century London, 76 Bus Hist Rev 515, 516–20 (2002). The cost of the fire in terms of destroyed real and personal property, lost rents, and the like was on the order of £10 million. See Bell, The Great Fire of London in 1666 at 223–24 (cited in note 37); Porter, The Great Fire of London at 71–73 (cited in note 38). At the time, the median annual income in London was probably less than £60. See William C. Baer, Stuart London’s Standard of Living: Re-examining the Settlement of Tithes of 1638 for Rents, Income, and Poverty, 63 Econ Hist Rev 612, 629 (2010).
  • 40. Of these decrees, eight were appeals from prior decisions of the Fire Court. See generally Master List of Fire Court Decrees (on file with author). The total of 1,585 decrees understates the Fire Court’s work, for the Fire Court sometimes resolved between 2 and 4 petitions in a single decree. See generally id. A single decree might also cover multiple properties. See, for example, Clerke v Chapman, A 4, 4 (London Fire Ct Mar 7, 1667) (adjudicating claims to “severall peices of ground and Messuages [that is, houses]”). As in the example above, when referring to a specific decree, I provide the case name, followed by the volume, the first page of the decree, and the particular page referenced (for example, “A 4, 4”), and finally the name of the court and the date of the decree. The letters indicating the volumes in which the fire-court cases may be found correspond to the nine volumes of fire-court cases (A–I) housed in the London Metropolitan Archives.
  • 41. In the preamble to the act establishing the Fire Court, Parliament noted that the harshness of the common law both thwarted any attempt to justly spread “a proportionable share of the losse according to [the parties’] severall Interests” and threatened delays that “would much obstruct the rebuilding of the [ ] Citty.” 18 & 19 Car II, ch 7, § 1 (1667), in 5 Statutes of the Realm 601, 601. On January 31, 1667, the House of Commons assented to this bill, which had passed in the House of Lords on January 23, 1667. See 12 HL J 87 (Jan 23, 1667); 8 HC J 687 (Jan 31, 1667). According to the calendar then in use, in which the new year began on Lady Day (March 25), the date of the statute’s enactment was 1666. This Article follows modern dating conventions.
  • 42. In addition to the Fire Court established for London, Parliament constituted fire courts to handle the legal ramifications of urban fires in Northampton (1675), Southwark (1676), Warwick (1694), Tiverton (1731), Blandford (1731), Wareham (1762), and Chudleigh (1807). 27 Car II (1675), in 5 Statutes of the Realm 798, 798–801 (Northampton); 29 Car II, ch 4 (1677), in 5 Statutes of the Realm 842, 842–45 (Southwark); 6 & 7 Wm & Mary (1694) (private act) (Warwick) (on file with author); 5 Geo II, ch 14 (1731) (Tiverton) (on file with author); 5 Geo II, ch 16 (1731) (Blandford) (on file with author); 3 Geo III, ch 54 (1762) (Wareham) (on file with author); 48 Geo III, ch 89 (1808) (Chudleigh) (on file with author). See also Frank Sharman, Fires and Fire Laws up to the Middle of the Eighteenth Century, 22 Cambrian L Rev 42, 48–50 (1991) (describing the fire-court laws).

    The Northampton Fire Court disposed of 85 property claims after a fire in 1675 destroyed approximately 700 out of 840 buildings in the town. See Frank A. Sharman, The Northampton Fire Court, in J.A. Guy and H.G. Beale, eds, Law and Social Change in British History 118, 119, 121 (Swift 1984). The Southwark Fire Court heard fifty-two cases after a fire in 1676 destroyed as many as six hundred homes. See generally Court of Judicature Decrees, Fire of Southwark (1677) (copy from the London Metropolitan Archives on file with author); 1098 London Gazette 2 (May 25–29, 1676) (estimating a loss of six hundred houses). The Warwick Fire Court heard at least 31 petitions arising from a fire that destroyed approximately 150 buildings. See Michael Farr, ed, The Great Fire of Warwick 1694: The Records of the Commissioners Appointed under an Act of Parliament for Rebuilding the Town of Warwick 369–407 (Dugdale Society 1992) (reporting two different estimates of the damage (144 or 156 buildings) and reproducing thirty-one draft decrees of the court).

  • 43. See 18 & 19 Car II, ch 7, § 1 (1667), in 5 Statutes of the Realm 601, 602 (stating that the court may reach its decision “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”).
  • 44. In one case, described in notes 102–05 and accompanying text, the London Fire Court referred a matter regarding the value of land to a jury. The Fire Court had no jurisdiction to value land that was taken to widen streets during the rebuilding of London; by statute, Parliament gave that task to a jury impaneled by the lord mayor and Court of Aldermen of London. 18 & 19 Car II, ch 8, § 23 (1667), in 5 Statutes of the Realm 603, 608; 22 Car II, ch 11, § 32 (1670), in 5 Statutes of the Realm 665, 672.
  • 45. The seven statutes passed after the creation of the London Fire Court varied somewhat in the language in which they provided the courts with the discretion to dispense with juries. See note 101. Later legislation required the use of juries for one function that the London Fire Court had not been empowered to perform: valuing private land taken for rebuilding purposes. See note 121 and accompanying text.
  • 46. See note 172 and accompanying text.