Hastings Constitutional Law Quarterly


The Seventh Amendment right to a jury trial is a hallmark of the American system of justice. This distinguishing characteristic, however, is slowly eroding. As the agent of change, the Supreme Court bears responsibility for restricting availability of jury trials. Among other factors, the Court's shaping of the public rights doctrine has cut into the sphere of the Seventh Amendment. The public rights doctrine has gone astray from its arguably tenuous roots, becoming the proverbial hole in the dike.

The public rights doctrine grows from the concept that sovereign immunity allows the government to direct how disputes against the government might be resolved. Because the government does not have to consent to a jury trial, public rights cases are excepted from the Seventh Amendment. The Court has since utilized the doctrine of separation of powers to expand the public rights doctrine yet further. Under this expanded notion, the public rights doctrine grants agencies the power to resolve disputes through administrative procedures whenever Congress creates a seemingly private right that is integral to a public regulatory scheme.

Both of these doctrines lack the vitality requisite to override the concept embodied in the Seventh Amendment. Further, the public rights doctrine does not fit within the historical test used to define of the scope of the amendment. If the notion of public rights is revisited in this context, it leads to the conclusion that considerations supporting the public rights exception are far outweighed by the principles underlying the Seventh Amendment.