This Note argues that the Seventh Amendment's jury trial right does not include litigants in class suits and proposes returning class action suits to their equity roots. Part I explores the historical trajectory of class action suits, beginning with their emergence under equity and their status within the Seventh Amendment's law/equity distinction. It then explores the early American jurisprudential recognition of them as exclusively in equity and the erosion of this recognition in the wake of the Rules Enabling Act and the Federal Rules of Civil Procedure. Part II surveys the arc of Supreme Court decisional law that led to Justice Souter's pronouncement in Ortiz, examining how various factors, including the Court's reading of the Rules Enabling Act and the Federal Rules of Civil Procedure, served as the predicate for a progressive expansion of the right to jury trial in class action suits. Finally, Part III argues that the Court should abolish the right to jury trial in class action suits under FRCP 23 and restore class action suits to their historical place under equity jurisdiction.
Joshua D. Stadtler,
Ortiz Got It Wrong: Why the Seventh Amendment Does Not Protect the Right to Jury Trial in Class Action Suits under FRCP 23,
61 Hastings L.J. 1561
Available at: https://repository.uchastings.edu/hastings_law_journal/vol61/iss6/9