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What Happened to Jury Trial In Antitrust Cases?
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
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