What Happened to Jury Trial In Antitrust Cases?

[charles mueller <cmueller@metrolink.net>]

          I have a small legal question that has troubled me for some years,
  one that I'd like to address to any lawyers in the group:  What happened to
  the right of jury trial in antitrust cases?  The 7th Amendment to the U.S.
  Constitution reads as follows:  "In suits at common law, where the value in
  controversy shall exceed twenty dollars, the right of trial by jury shall be
  preserved, and no fact tried by a jury, shall be otherwise reexamined in any
  Court of the United States, than according to the rules of the common law."
  The Supreme Court held early on (after the passage of the Sherman Act in
  1890) that antitrust cases, though resting on a statute, met the common-law
  test and hence were entitled to jury trial under the 7th Amendment.
  
          For nearly 9 decades--until the mid-'70s--the U.S. courts honored
  this Constitutional mandate and accorded antitrust plaintiffs the right of
  trial by jury, treating its verdict with respect and even deference, as
  obviously called for by the magisterial phrase, "no fact tried by a jury,
  shall be otherwise reexamined in any Court of the United States..."
  Beginning in about 1975, however, our courts decided that juries were not to
  be trusted in antitrust.  Such cases are "complex," they said, and mere
  "laymen" can't understand the intricacies of business and the "economic"
  theories required to grasp them.  Only a judge, appointed by the President
  and confirmed by the Senate, has the "disciplined mind" to handle a subject
  as important as national antimonopoly policy.
  
          What had happened to the 7th Amendment?  It was still there.  The
  U.S. judges simply began to ignore it in antitrust cases.  Today, there's a
  routine in our federal courts that amounts to a de facto repeal of that
  Constitutional provision.  If you file an antitrust case, the federal judge
  will, first, see that you never get to a jury. 
  
          (1) The monopolist you're suing will make a motion to strike your
  complaint as legally inadequate, as failing to allege facts that the law
  condemns.  Motion granted, case dismissed. 
          
          (2)  If you make it over that first hurdle, the monopolist will hit
  you with a financially-crushing burden of discovery, a barrage of subpoenas
  stripping your files bare and a long series of depositions of your employees
  and those of other firms in your industry.  At this point you'll probably be
  bankrupted and will voluntarily dismiss your case.  
  
          (3)  If you're somehow able to carry on, the monopolist will then
  make a motion for "summary judgment," a request for a ruling by the judge
  that--even ASSUMING the truth of all the "facts" you've been able to muster
  via your "discovered" documents and depositions--you still have no case.
  Motion granted, case dismissed.  
  
          (4)  If by some miracle you survive that deadly motion for "summary
  judgment" --some 90% or more of all antitrust cases are finished by this
  point--you get to present your case to a jury, offering your documents and
  your witnesses.  When you're through, the monopolist will make a motion for
  a "directed verdict," for a finding by the judge that "no reasonable jury"
  could hand down a verdict in your favor.  Motion granted, case dismissed.
  
          (5)  If you survive that first motion for a directed verdict--after
  you've put in your own affirmative case--the monopolist will then put in his
  defense, an endless stream of industry witnesses and documents designed to
  swamp the jury, plus a platoon of "expert" economists swearing that every
  "fact" you've presented to the jury is at best "implausible" (in economic
  theory), i.e., is false.  When the defense rests, the monopolist will make a
  2nd motion for a "directed verdict"--a finding by the judge that, in view of
  the "overwhelming" evidence presented in opposition to your case, "no
  reasonable jury" could sensibly believe you.  Motion granted, case dismissed.
  
          (6)  If you should still be alive at this point--virtually no
  antitrust plaintiffs are --the jury will be allowed to actually hand down a
  verdict.  And since only an essentially impregnable antitrust case will ever
  be allowed to reach a jury today, the odds this time are heavily in your
  favor.  The jury verdict is, guilty.  Judgment for the plaintiff, X number
  of dollars.  Under the law, the judge must treble that figure and award you
  a judgment for 3 times that amount.  You're ecstatic.  
  
          (7)  The monopolist promptly makes a motion for "judgment
  notwithstanding the verdict" (JNOV), i.e., a demand that the judge set aside
  the jury veridct on the ground that "no reasonable jury" could have found in
  your favor.  Motion granted, case dismissed.         
  
          (8)  You're outraged at having your hard-won jury verdict taken away
  from you by the judge, so you appeal to the appropriate U.S. court of
  appeals, asking it to reverse the trial judge and restore your jury verdict.
  You spend a small fortune in legal and economic fees to prepare your
  appellate brief and argue for 15 minutes before a 3-judge appellate panel.
  You haven't a prayer.  Judgment for the monopolist affirmed, case dismissed.
  
          (9)  Made of very stern stuff--and mortgaging your home, plus
  borrowing from your family--you raise enough dollars to pay your lawyer to
  file an appeal in the U.S. Supreme Court (petition for certiorari).  Some
  7,000 such petitions are filed each year and just over 100 of them are
  granted--the number of cases that actually get argued and decided by the
  Supreme Court.  Your odds of getting heard?  Zilch.  Petition for certiorari
  denied, case dismissed.
  
          (10)  But suppose--beating all the odds--you manage to get the
  Supreme Court to actually hear your antitrust case.  You can file a brief
  (again at a heavy cost) and your lawyer gets a few minutes to argue for your
  economic life.  But he and you now face a formidable ideological gauntlet,
  the 'Dirty Dozen' antitrust precedents of the Court.  (See
  http://webpages.metrolink.net/~cmueller/dirty.html)  If your case involves
  naked price fixing--and incontrovertible proof that it has, say, imposed on
  you price overcharges in the range of 50% to 100% or higher--you might have
  a small chance of winning.  Otherwise, appeal denied, case dismissed.
  
          What about your right to a jury trial under the 7th Amendment?  It's
  gone.  The Supreme Court routinely admonishes the lower courts to take
  antitrust cases away from the jury, to dismiss antitrust complaints, to
  grant defense motions for summary judgment, to grant directed verdicts for
  the monopolist, to set aside jury verdicts for the antitrust plaintiff.  So
  what about that phrase, "no fact tried by a jury, shall be otherwise
  reexamined in any Court of the United States"?  It's gone.  Our judges
  routinely rule that, if the jury deided for the plaintiff in an antitrust
  case, it was acting "unreasonably."  The defense offered by the monopolist
  is invariably "plausible" to our appointed judges, i.e., "economically"
  sensible and therefore appropriate, by their lights.
  
          All this has apparently been wrought under the 7th Amendment's
  qualifying phrase, "than according to the rules of the common law."
  Antitrust plaintiffs are entitled to a jury trial--and to have the jury's
  findings honored by the nation's judges ("no fact shall
  be...reexamined")--EXCEPT where the "rules of the common law" dictate
  otherwise. 
  
          My question, then, to the lawyers of the group:  Do the "rules of
  the common law" really exonerate this effective repeal of the 7th Amendment
  in antitrust cases, the taking of this critical group of cases from the jury
  and turning them over to the judges?
  
          Charles Mueller, Editor
          ANTITRUST LAW & ECONOMICS REVIEW
          http://webpages.metrolink.net/~cmueller
  
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