The Complexity Exception

The Seventh Amendment to the United States Constitution states the following:

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 re-examined in any Court of the United States, than according to the rules of the common law.

Though the Seventh Amendment preserves the right to a jury trial, many modern courts invoke a “complexity exception” to deny litigants that right.¹  The “complexity exception” allows a judge to take a civil lawsuit out of a jury’s hands when the issues are purportedly too complicated for jurors to understand.²  Courts have justified this “complexity exception” by weighing the Fifth Amendment right to due process more heavily than the Seventh Amendment right to a jury trial, arguing that in cases beyond the understanding and comprehension of a jury, a jury trial denies litigants a fair trial.³  Courts have also supported the complexity exception by citing a footnote in the Supreme Court case Ross v. Bernhard, which states that "the practical abilities and limitations of juries" should be taken into account in determining whether the right to a jury trial exists.⁴  Still further, courts have used a historical equity argument to argue that remedies at law that were unavailable in 1791 should not be available now, and thus no right to a civil jury trial exists.⁵

It is well known that patent disputes often involve complex scientific principles.  But should the complexity of the dispute give courts the authority to deny litigants their Seventh Amendment right to a jury trial?  In 1995, despite the jury’s previous role of construing patent claim language, the Court of Appeals for the Federal Circuit held in Markman v. Westview Instruments that the district court itself will determine the meaning of patent claims, not the jury.⁶  Judge H. Robert Mayer disagreed with the majority’s determination that claim construction is exclusively a matter of law rather than fact and labeled this ruling an attempt to create a “complexity exception” to the Seventh Amendment for patent cases.⁷  Even so, in 1996, the Supreme Court affirmed the Federal Circuit’s ruling, thus creating what are now known as Markman hearings.⁸  Since patent claims are construed by courts prior to the start of trial in Markman hearings, patent infringement suits now often settle before the cases can get in front of a jury.⁹

                                                                                             

Until it can be shown that judges “are more likely to be right” than juries¹⁰ in cases arising under patent law, due process is not in jeopardy and the right to a jury trial should be preserved under the Seventh Amendment.  As noted by Alexander Hamilton in the Federalist Papers:

The friends and adversaries of the plan of the convention, if they agree on nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; and the latter represent it as the very palladium of free government.¹¹