There is the possibility that the recent Supreme Court decision of Ashcroft v. Iqbal finally will be the necessary impetus to revisit one of the more bizarre but enduring canards of American jurisprudence -- the way we interpret the Seventh Amendment's preservation of a right to a jury trial in federal civil litigation. The Seventh Amendment provides that "[i]n suits at common law ... the right of trial by jury shall be preserved." To this day, the way we apply the Seventh Amendment-in other words, what we interpret to be the constitutional intent and mandate of our Founders-is to postulate hypothetically that a contemporary federal civil case, filed in federal district court under current-day statutes and laws, instead had been filed in England in 1792, and to ask whether then it would have been filed in the common law courts or in the equity courts. Time and jurisprudential evolution have exposed this approach-known as the "historical test"-as flawed from the inception. Nonetheless, largely through judicial inertia, the historical test has survived. Indeed, in the roughly 200 years since the historical test emerged, no occasion has been sufficient to cause the courts to consider whether the test is jurisprudentially supportable. The historical test may well not survive Ashcroft v. Iqbal.
Part I traces the doctrinal path that leaves us today with the historical test. Part II very briefly reviews the constitutional impasse between the historical test and Iqbal. Part III presents the case for abandoning the historical test and proposes a new interpretive rule to replace it.
Kenneth S. Klein, Is Ashcroft v. Iqbal the Death (Finally) of the “Historical Test” for Interpreting the Seventh Amendment?, 88 NEB. L. REV. 467 (2010).