American University Law Review Volume 68 Issue 4 Article 1 2019 Trial by Jury: Why it Works and Why it Matters Kathleen M. O'Malley U.S. Court of Appeals for the Federal Circuit Follow this and additional works at: https://digitalcommons.wcl.american.edu/aulr Part of the Law Commons Recommended Citation O'Malley, Kathleen M. (2019) "Trial by Jury: Why it Works and Why it Matters," American University Law Review: Vol. 68 : Iss. 4 , Article 1. Available at: https://digitalcommons.wcl.american.edu/aulr/vol68/iss4/1 This Foreword is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Trial by Jury: Why it Works and Why it Matters This foreword is available in American University Law Review: https://digitalcommons.wcl.american.edu/aulr/vol68/ iss4/1 FOREWORD TRIAL BY JURY: WHY IT WORKS AND WHY IT MATTERS THE HONORABLE KATHLEEN M. O’MALLEY* Many members of this court, me included, have written forewords for this issue of the American University Law Review. We should, given this issue’s regular focus on the work of the U.S. Court of Appeals for the Federal Circuit and the consistently high quality of the issue’s content. I applaud the Law Review for making publication of this journal issue an enduring priority, and I commend all who have had a hand in making it happen. Previous forewords from my colleagues and I have focused on the history, formation, and mission of the Federal Circuit, on changes and challenges it has faced over the years, and on suggestions or concerns for its future. This year, I want to shift focus. I want to take this opportunity— this bully pulpit—to address a topic that is important to me: the fact that patent cases are being used as a vehicle to criticize and chip away at our Seventh Amendment right to a jury trial. I am troubled by this trend and believe we all should be concerned about it—gravely so. * Circuit Judge, U.S. Court of Appeals for the Federal Circuit. These thoughts were first presented in the form of a speech delivered to the New York University Civil Jury Project and later revised for a presentation to the American Intellectual Property Law Association. This is an expanded—and more detailed— version of these earlier remarks. As with all work product coming from my chambers, I am grateful to my law clerks for their assistance in helping me to articulate my thoughts on this topic, and to garner support for them. Because this was a work that developed and changed over time, beginning as a speech and ending up as this Foreword, I need to thank law clerks from two different terms. They are Taylor W. King (2016–2017) and Eric D. Dunn (2018–2019). 1095 1096 AMERICAN UNIVERSITY LAW REVIEW [Vol. 68:1095 I. WHY WE SHOULD CARE If recent events have taught us anything, it is that we are a deeply divided country. We have differing views about the direction our country should take and about what policies are needed to take us where we want to go. There is also an increasing distrust in the institutions of government and the ability of those institutions to protect the rights, liberties, and other values we hold dear. At times like this, we need reassurance that the judiciary remains an independent branch of government that stands apart from the two elected branches, and that the judiciary will protect each of us from the tyranny of the majority or the whims of the sovereign. While there are many ways the judiciary can and should provide this reassurance, one way it must do so is by protecting the sanctity of our right to trial by jury in all cases, both criminal and civil. This right is a part of what makes the third branch—the judiciary—independent and unique. And it is what protects all of us from overreach by the other two branches of government. I am an unabashed believer in the jury system, an unabashed believer that juries take their obligations as jurors seriously, an unabashed believer that juries can sort out even complex issues when given the proper tools, and an unabashed believer that juries almost always arrive at conclusions that are rational, fair, and—even if not the conclusion I would reach in all cases—justified by the evidence presented to them and the legal principles they were charged to follow. I am also an unabashed believer that the right to trial by jury is critical to our system of justice and the protection of our liberties. Our Founders were also unabashed believers in the right to trial by jury.1 In fact, trial by jury was guaranteed by every colony even before the Constitution and Bill of Rights were adopted.2 England’s subversion of this right was a principal criticism of the English system in the colonies. Among other things, the British began to enforce their unpopular and excessive colonial taxes through courts of equity to avoid the scrutiny of colonial juries.3 And they sought to exert control 1. See Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639, 656 (1973) (“[T]he nascent American nation demonstrated at virtually every important step in its development that trial by jury was the form of trial in civil cases to which people and their politicians were strongly attached.”). 2. Id. at 653–54; Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 HASTINGS L.J. 579, 592 (1993). 3. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 340 (1979) (Rehnquist, J., dissenting) (discussing “[t]he extensive use of vice-admiralty courts by colonial 2019] TRIAL BY JURY 1097 over colonial judges and their decision-making by handing control of judicial salaries to the Crown rather than the colonial legislatures.4 These practices were expressly listed among the “long train of abuses” committed by the sovereign in the Declaration of Independence.5 The Constitution’s silence on the right to trial by jury in civil cases triggered calls for a bill of rights: “[T]he entire issue of the absence of a bill of rights [from the Constitution] was precipitated at the Philadelphia Convention by an objection that the document under consideration lacked a specific guarantee of a jury trial in civil cases.”6 When the call for a bill of rights was answered, no fewer than three amendments—the Fifth, the Sixth, and the Seventh—addressed the right to trial by jury.7 And, two more limited the power of judges, but not juries, in deciding certain issues.8 Trial by jury played such an important role in debates on independence and ratification because, as Chief Justice Rehnquist wrote, “[t]he [F]ounders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.”9 Thomas Jefferson referred to trial by jury as “the only anchor, ever yet imagined by man, by which a administrators to eliminate the colonists’ right of jury trial”); see also Landsman, supra note 2, at 596; Wolfram, supra note 1, at 654. 4. See Landsman, supra note 2, at 595. 5. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776); see also Parklane Hosiery, 439 U.S. at 340 (Rehnquist, J., dissenting) (“[T]he right of trial by jury was held in such esteem by the colonists that its deprivation at the hands of the English was one of the important grievances leading to the break with England.”). 6. Wolfram, supra note 1, at 657; see also Parsons v. Bedford, Breedlove & Robeson, 28 U.S. 433, 446 (1830) (“One of the strongest objections originally taken against the [C]onstitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases.”); Edith Guild Henderson, The Background of the Seventh Amendment, 80 HARV. L. REV. 289, 295 (1966) (explaining that the absence of language regarding civil juries “was a prominent part” of Anti- Federalists’ objections to the Constitution); Landsman, supra note 2, at 600 (explaining that seven states only ratified the Constitution on the condition that it be amended to include a right to trial by jury in civil cases). 7. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1190 (1992). 8. Id. (discussing the Fourth and Eighth amendments); see also Hurst v. Florida, 136 S. Ct. 616, 624 (2016) (Breyer, J., concurring) (“I concur in the judgment here based on my view that the Eighth Amendment requires that a jury, not a judge, make the decision to sentence a defendant to death.” (internal quotation marks omitted)); Amar, supra note 7, at 1148–49 (explaining that James Madison originally proposed a “Fourteenth Amendment” that obligated state governments to provide trial by jury). 9. Parklane Hoisery, 439 U.S. at 343 (Rehnquist, J., dissenting). 1098 AMERICAN UNIVERSITY LAW REVIEW [Vol. 68:1095 government can be held to the principles of it’s [sic] constitution.”10 And James Madison called trial by jury in civil cases “as essential to secur[ing] the liberty of the people as any one of the pre-existent rights of nature.”11 As the Founders understood, the right to trial by jury operates to check any temptation the judiciary might have to bend to the will of either the majority or the sovereign—rather than the law.12 In turn, it operates to resist any temptation by the other branches of government to similarly disregard the law for their own ends.13 The Supreme Court has historically recognized the important role juries play in our system.