| Book Review | Law and History Review, 27.1

Book Review

James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries, New York, New York University Press, 2006. Pp. 353. $55.00 (ISBN 978-0-8147-6204-2).

Over the last two decades, James Oldham has established himself as the foremost authority on Judge Mansfield and late eighteenth-century English law. This research has given Oldham an extremely valuable perspective on a variety of issues relating to the history of jury trial. This book reprints a number of Oldham's publications on juries and supplements them with some new material.

The first four chapters relate to problems arising under the Seventh Amendment of the U.S. Constitution, which requires preservation of the right to jury in "suits at common law." The Supreme Court has held that this provision should be interpreted with reference to the rules and practices of the common law in England in 1791. Although Oldham is clearly skeptical about the wisdom of using history to determine the scope of the right to jury, he does not seriously question it, but instead uses his historical expertise and modern legal skills to analyze some of the most difficult issues which courts have faced.

In Chapter 1, Oldham addresses the issue decided by the Supreme Court in Markman v. Westview Instruments (1996), whether the interpretation of patent claims is a matter for judge or jury. Oldham undermines the historical basis of Justice Souter's opinion in that case by showing that there were many late eighteenth-century patent cases (although most were unpublished) and that issues involving the interpretation of written documents usually were resolved by the jury.

In the second chapter, Oldham addresses the question of whether there should be a "complexity exception" to the right to jury trial. The most fundamental point made in this chapter is that complex cases in the late eighteenth-century would often have been tried before special merchant juries, which rendered a complexity exception unnecessary.

Chapter 3 addresses the broader question of law and fact. Oldham surveys the debate about whether judges should inform jurors of their power to disregard judicial instructions about the law and discusses the extent to which judges can overturn verdicts contrary to law. In general, the historical remedy for verdicts contrary to law was a new trial. The chapter concludes with a discussion of how judges drew the line between law and fact in defamation, commercial, and criminal cases.

In Chapter 4, the only completely new chapter, Oldham turns to the role of the jury in calculating damages, both compensatory and punitive. He concludes, contrary to a recent Supreme Court decision, that late eighteenth-century judges could not determine damages without a jury unless the amount was undisputed or the plaintiff consented. With regard to punitive damages, Oldham establishes that English judges tolerated and sometimes even encouraged them, and almost never overturned them. When English judges did question damages, they used the remittitur procedure, which ordered a new trial unless the plaintiff accepted reduced damages proposed by the court.

Chapters 5 through 9 examine juries composed of persons specially recruited for particular trials. The jury of matrons, the only jury upon which women routinely served, determined whether a woman was pregnant and therefore whether execution should be delayed until the child was born. Oldham shows that this procedure was frequently abused, either by merciful jurors or by suspects who arranged to have themselves impregnated before trial. During the nineteenth century, the jury of matrons was gradually replaced by medical professionals.

In Chapter 6, Oldham presents evidence from the Year Books and Selden Society publications supporting the hypothesis that medieval jurors were "self-informing." That is, they based their verdicts on information gathered outside of court rather than relying on evidence presented at trial.

Special juries were juries recruited either by the "struck jury" method or for their special knowledge or elevated social standing. Under the "struck jury" procedure, parties were allowed to "strike" jurors from an unusually large panel of potential jurors. This procedure was frequently, but not always, used with panels of expert or high-status jurors. The special jury of merchants was most famously used by Mansfield to decide commercial cases in accordance with merchant custom. Oldham traces the practice from England into the United States. Surprisingly, there were several American states which used these procedures even in the twentieth century, although the procedure largely fell into disfavor as more democratic notions of juror recruitment came to prevail.

Although each of these articles is thoroughly researched, the reader is left wondering about issues which were not covered. For example, while Supreme Court cases have focused on the right to jury in relatively narrow circumstances, Oldham occasionally makes casual references to larger procedural changes which suggest that the right to jury has been substantially curtailed in the last two centuries. The dramatic expansion of discovery and the invention of summary judgment have allowed judges to review the evidence before trial and render judgment on their own in cases that previously would have gone to jury trial. In addition, in the eighteenth century, even cases decided in equity would routinely have been decided by a jury, because the Chancellor usually referred factual issues to the common law courts. Over the last two centuries, this procedure has vanished, again drastically reducing the frequency of jury trial. One hopes that Oldham, or perhaps another historian, will take up these broader changes.

Daniel Klerman

University of Southern California

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