Juries For Takings Liability: Treating Litigants Alike

• Published date: 05 August 2025
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Manatt, Phelps & Phillips LLP
• Author: Michael M. Berger

INTRODUCTION

The right to trial by jury has long been accepted as a foundational part of Anglo-American law. The Supreme Court has called it "the bulwark of American liberties"² and a cornerstone of our system of justice.³ Blackstone praised it as "the glory of the English law."⁴ John Adams called it "the heart and lungs" of liberty.⁵ Thomas Jefferson concluded that trial by jury was "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."⁶ More recently, constitutional scholar Akhil Reed Amar concluded that "[n]o idea was more central to our Bill of Rights ... than the idea of the jury."⁷ And, lest we forget, one of the explicit charges in the Declaration of Independence justifying our split with England was "[f]or depriving us in many cases, of the benefits of Trial by Jury."⁸ Take a poll of lawyers and the odds are strong that most will tell you they would prefer trying their cases to juries rather than judges.

In City of Monterey v. Del Monte Dunes at Monterey, Ltd., ⁹ the Supreme Court held that a regulatory takings plaintiff in a suit in federal court under

42 U.S.C. §1983 had a right to have a jury decide the issue of liability (in addition to the issue of the amount of compensation). Gratuitously (as the issue of state court procedure was not before the Court), the opinion said flatly, "it is settled law that the Seventh Amendment does not apply [to] ... suits brought in state court."¹⁰ In fact, the case cited for this proposition shows no such "settled" law at all. It says only that "[t]he Court has not held that the right to jury trial in civil cases is an element of due process applicable to state courts through the Fourteenth Amendment."¹¹ That is a far cry from the seemingly definitive assertion flatly made in Del Monte Dunes.

Knowing (as counsel for the property owner in Del Monte Dunes) that the issue was not part of that case, it has always grated on me that the Court saw fit to throw that statement into its opinion, thus injecting confusion (at least) into state court litigation of takings cases, as state courts accepted it as final.¹² At least part of the inspiration for this article was to try to figure out how that happened and whether it has any basis.

I. THE BACKGROUND: BILL OF RIGHTS COVERAGE

Let's start with the application of the 7th Amendment against the federal government. The rules are clear. The right to trial by jury is "of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right" has always been and "should be scrutinized with the utmost care."¹³ The 7th Amendment right to a jury trial applies to "all but" those cases involving solely equitable remedies.¹⁴ When "legal" issues are presented, a jury is mandated upon request.¹⁵

The right to a jury trial in civil cases was a critically important issue at the time this country was founded. As the Supreme Court recently summarized:

"In the Revolution's aftermath, perhaps the 'most success[ful]' critique leveled against the proposed Constitution was its 'want of a ... provision for the trial by jury in civil cases.' The Federalist No. 83. The Framers promptly adopted the Seventh Amendment to fix that flaw. In so doing, they embedded the right in the Constitution, securing it against the passing demands of expediency or convenience. Since then, every encroachment upon it has been watched with great jealousy."¹⁶

So, 7th Amendment application against the federal government is clear. How about the states? Early on, the Supreme Court back-handedly dismissed any thought that the 7th Amendment applied to state court trials: "The States, so far as this amendment is concerned, are left to regulate trials in their own courts in their own way."¹⁷ Even to the point of eliminating juries altogether.¹⁸ The Court repeated this generality, but never with any explanation. ¹⁹

We have come a long way since 1833, when the Supreme Court concluded curtly that the Bill of Rights in general restrained the federal government but had no impact on the states.²⁰ Since then, the Justices have been split over which guarantees applied against the states, with Justice Black urging that all of them do.²¹ Justice Black's words were forceful, and continue to ring true to at least some of us:

"My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states. With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced."²²

As Justice Black's view never secured a majority, the Court set about a process of examining each of the first eight guarantees in the Bill of Rights to determine which, if any, should apply against the states.²³ In the process the Court explained why it was doing some serious back-peddling on established law:

"The Court has not hesitated to re-examine past decisions according the Fourteenth Amendment a less central role in the preservation of basic liberties than that which was contemplated by its Framers when they added the Amendment to our constitutional scheme."²⁴

During the last century or so,²⁵ the Supreme Court has methodically incorporated "almost all" features of the Bill of Rights into the due process clause of the Fourteenth Amendment, thus making them applicable to the states.²⁶ Only a handful of the Bill of Rights protections remain unincorporated.²⁷

The Supreme Court has explained its incorporation doctrine thus:

"With only a handful of exceptions, this Court has held that the Fourteenth Amendment's Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States. A Bill of Rights protection is incorporated, we have explained, if it is fundamental to our scheme of ordered liberty, or deeply rooted in this Nation's history and tradition."²⁸

To date, virtually all of the guarantees in the Bill of Rights have been held to satisfy that requirement. Moreover, "[t]he Court ... has rejected the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights ...."²⁹

So, if incorporation depends on the right being "fundamental to our scheme of ordered liberty" or "deeply rooted in this Nation's history and tradition," why has the Seventh Amendment right to a civil jury trial not been incorporated? Why, indeed. Upon examination, the only answer that appears is something on the order of "because we said so."...