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Preserved Or Pickled?: the Right to Trial by Jury After the Merger of Law and Equity in Maryland Charles A University of Baltimore Law Review Volume 26 Article 2 Issue 2 Spring 1997 1996 Preserved or Pickled?: The Right to Trial by Jury after the Merger of Law and Equity in Maryland Charles A. Rees Follow this and additional works at: http://scholarworks.law.ubalt.edu/ublr Part of the Law Commons Recommended Citation Rees, Charles A. (1996) "Preserved or Pickled?: The Right to Trial by Jury after the Merger of Law and Equity in Maryland," University of Baltimore Law Review: Vol. 26: Iss. 2, Article 2. Available at: http://scholarworks.law.ubalt.edu/ublr/vol26/iss2/2 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Review by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. PRESERVED OR PICKLED?: THE RIGHT TO TRIAL BY JURY AFTER THE MERGER OF LAW AND EQUITY IN MARYLAND Charles A. Reest I. INTRODUCTION ............................................ 304 A. The Lynch and Bourne Book Chapter and Article .. 305 B. My Thesis ............................................... 305 C. The Lynch and Bourne Approach ... '................. 306 1. Principled Discretionary Theory ........... 307 2. Approximation of Pre-Merger Approach 308 D. The Jury Trial as Constitutional Right .............. 309 II. USUAL WAYS OF INTERPRETING THE CONSTI- TUTION ....................................................... 310 A. Nature ................................................... 310 1. Written Constitution .......................... 310 2. Living Constitution ........................... 311 B. Text ...................................................... 312 1. The Original Provision: Article 5 (Recep- tion Provision) .... ; ............................ 312 2. The Principal Provision: Article 23 ........ 314 3. Other Provisions ............................... 317 4. Omissions ....................................... 318 C. History .................................................... 320 1. English History ................................ 321 2. Colonial Maryland History .................. 321 3. History of the Original Jury Right Provi- sion................................................ 321 4. History of the Principal Jury Right Provi- slon................................................ 322 t J.D., 1970, Harvard University; Professor of Law, University of Baltimore School of Law; Member, Maryland Bar. The author thanks the University of Baltimore Educational Foundation for a research grant, Martha Kahlert for word processing, and Jennifer Kutcher and William Abel for research assis­ tance. 301 302 Baltimore Law Review [Vol. 26 5. Subsequent History of the Jury Right in Maryland. .. .. ... .. .. 324 D. Structure................ ..... ........ ... .......... ..... ... 325 E. Doctrine. .. .. .. .. .. 328 1. Traditional Interpretations................... 328 2. Pre-Merger Interpretations................... 329 3. Post-Merger Interpretations.................. 330 4. Current Questions............................. 332 F. Prudential Concerns..................................... 343 G. Ethical Matters.............. .... ......... ................ 346 1. Explicit Principles.............................. 347 2. Textual Cousins................................. 349 3. Non-textual Principles......................... 353 III. THE LYNCH AND BOURNE PRINCIPLED DISCRE­ TIONARY THEORy.......................................... 360 A. Trial Judges' Discretion ................................. 362 1. Not Protective of the Jury Right............ 362 2. Contrary to the Usual Ways of Interpret- ing the Constitution........................... 367 B. Strict Historical Test............... ...................... 369 1. Not Protective of the Jury Right............ 372 2. Contrary to the Usual Ways of Interpret- ing the Constitution.................... ....... 381 C. Equity Respects the Jury Right ...... 386 1. Not Protective of the Jury Right............ 392 2. Contrary to the Usual Ways of Interpret- ing the Constitution........................... 393 D. Equity Will Not Act Where the Remedy at Law is Adequate................................ ... ...... ......... 394 1. Not Protective of the Jury Right............ 396 2. Contrary to the Usual Ways of Interpret- ing the Constitution........................... 402 E. Equity May Expand By Statute or Judicial Decision 404 1. Not Protective of the Jury Right............ 411 2. Contrary to the Usual Ways of Interpret- ing the Constitution........................... 411 F. Judicial Economy ........................................ 415 1. Not Protective of the Jury Right............ 420 2. Contrary to the Usual Ways of Interpret- ing the Constitution........................... 421 G. Equity is Superior to Law as a Mode of Trial. 425 1. Not Protective of the Jury Right............ 442 1997] The Right to Trial by Jury 303 2. Contrary to the Usual Ways of Interpret- ing the Constitution........................... 443 IV. LYNCH AND BOURNE'S APPROXIMATION OF PRE-MERGER APPROACH................................. 445 A. The Article.... 450 1. Declaratory Judgments.......... 451 2. Land Titles...................................... 455 3. Rescission and Restitution Based upon Fraud ............................................. 458 4. Suits to Enjoin Interference with a Busi- ness Relationship and for Damages........ 461 '5. Suits Joining Claims for Specific Perform- ance and Damages............................. 464 6. Suits Joining Divorce-Related Claims with Actions at Law.................................. 467 7. Suit to Foreclose a Mechanic's Lien and a Counterclaim for Breach of Contract... 469 8. Actions Involving Claims to Quiet Title and Legal Counterclaims.... ................. 475 9. Suits Involving a Claim for Accounting and a Claim for a Legal Remedy........... 477 10. Actions in Which Adjudication of Equita­ ble Issues is a Prerequisite to Adjudica- tion of Claims Triable by Jury........... 480 a. Narrow Equitable Procedural Determi- nations....................... ...... ........ 481 b. More Substantial Equitable Relief....... 483 B. The Book........... .... .. .. .. ... ... 486 1. Newly-Created Causes of Action ............ 488 2. Actions in Which Legal and Equitable Claims or Issues are Combined............. 490 a. Actions in Which a Historically Legal Claim is Joined with a Historically Eq- uitable Claim ............................. 490 b. Actions in Which a Historically Legal Claim is Joined with Some Preliminary Equitable Procedural Matter............. 493 c. Equitable Accounting Actions........... 494 3. Declaratory Judgments........................ 496 V. PRESERVING MARYLAND'S PROTECTIVE AP­ PROACH TO THE JURY TRIAL RIGHT............... 499 VI. CONCLUSION ................................................ 514 304 Baltimore Law Review [Vol. 26 I. INTRODUCTION Is the right to jury trial in civil cases a historical relic for "pick­ ling," or is it a valuable right for preserving? What effect has the merger) of Law and Equity2 had on the jury right? These issues have been faced by lawyers and judges all over the country. In Maryland, the issues came into focus in 1984 with the adoption of new rules of procedure. In 1993, Professors Richard Bourne and John Lynch published a book on Maryland Civil Procedure.3 A chapter of that book deals with the right to jury trial in civil cases.4 Professors Lynch and Bourne also "taught this course" before in a law review article.s 1. The phrase "merger of Law and Equity" is used to denote that certain, sepa­ rate procedural rules for trying Law cases on the one hand, and Equity cases on the other hand, have been united. The merger of Law and Equity oc­ curred in 1984 in Maryland. See MD. RULE 2-301. The merger of Law and Eq­ uity in federal courts occurred in 1938. See FED. R Crv. P. 2. As suggested by the framers of the revised MARYLAND RULES, the idea of a merger of Law with Equity is complex. MD. RULE 2-301 provides: "There shall be one form of action known as 'civil action.' " A committee note to the rule provides: "The effect of this Rule is to eliminate distinctions be­ tween law and equity for purposes of pleadings, parties, court sittings, and dockets. It does not affect the right to jury trial." Separate courts of Equity were abolished before the 1984 revision. As the committee note provided, the revision affected pleadings, parties, court sittings, and dockets, but not the right to jury trial. Commentators have noted that the revision did not affect distinctions between legal and equita­ ble causes of action and remedies. See PAUL V. NIEMEYER & LINDA M. SCHUETT, MARYLAND RULES COMMENTARY 153 (2d ed. 1992). The distinction between Law and Equity continues as to other matters, such as subject mat­ ter jurisdiction of the district court and application of statutes of limitations (or laches). See MD. CODE ANN., Crs. & JUD. PROC. §§ 4-402(a), 5-101 (1995). Of course, the "merger of Law and Equity" is also complicated because it refers to one element of procedural reform that often includes other ele­ ments, such as elimination of common-law forms of action, ready joinder of claims and parties, comprehensive discovery, liberal amendment of plead­ ings, and simplified appeal. See generally FLEMING JAMES, JR. ET AL., CML PRO. CEDURE 19-22 (4th ed. 1992). 2. "Law" and "Equity" are capitalized in this Article to reflect traditional us­ ages, and to distinguish Law and Equity as separate systems
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