Without the Seventh Amendment, which guarantees the right to civil jury trial, we cannot defend our rights under the First, Second, or any other Amendments of the Bill of Rights. Jury trials are the institutional check against judicial criminality. Because relatively few people become involved in litigation, the fact that civil jury trials have almost completely disappeared has gone unnoticed.The average citizen assumes that should they become entangled in a lawsuit, the problem will be resolved by a jury of their peers. They are sorely mistaken; more often than not, they will be at the mercy of one person — a judge who has very little restrictions on how they want to apply the law.
There has recently been a focus on criminal justice reform, but those cases are still guaranteed a jury trial unless the right is waived by the defendant. However, criminal convictions are often addressed through civil rights complaints. Other issues such as challenges to the constitutionality of state laws, state judicial due process violations, employment discrimination, and mortgage fraud are handled in civil court, but unless one can afford a high profile lawyer, the real challenge will be getting a judge to allow you a jury trial.
Research shows that over the last several decades, courts have increasingly ordered pretrial dismissals under a modernized version of a court rule called a “Motion for Summary Judgment (MSJ)”.
A Simple Explanation of the MSJ
In simple terms, the MSJ has now dubiously replaced the Seventh Amendment of the U.S. Constitution which mandates:
“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.”
However, this procedural rule is being abused, by allowing the substitution of the MSJ by either party to bypass a jury trial. By filing the motion, the judge is given the option to dismiss the case before it proceeds any further. One party, usually the defendant, will argue that the facts show the other side cannot prevail under the law with the evidence submitted into the court record.
The MSJ (codified as Federal Rules of Civil Procedure F.R.C.P. 56) allows any judge assigned to a case to deny a demand for a jury trial and make a decision themselves, in violation of one of the most important provisions of the Bill of Rights. This is a perversion of the original intent of the device, whereby under the common law, (often confused with “case law” — they are not synonymous) both parties would have to agree to waive the right to jury trial. In effect, the majority of citizens are being denied due process and “equal protection of the laws,” as guaranteed by the U.S. Constitution’s Fourteenth Amendment,, as federal civil jury trials are all but extinct.
Academic legal scholar Richard L. Steagall writes that “the Federal Rules of Civil Procedure were adopted in 1938. That year 19.9% of the federal civil cases were tried. The rate was 12.1% in 1952 and 11.5% in 1962. By 2005, 1.7% of federal civil cases filed were tried. The decline in trials coincides with a significant increase in summary judgment. Today summary judgment is granted on issues of reasonableness, state of mind, and credibility, results that were inconceivable 23 years ago. . . . Two prominent federal judges have observed, federal “trial” judges appear no longer very interested in doing their job [of trying cases]. The preference for summary judgment over trial is a part of the twenty five-year turn away from the post World War II belief in law. Grants of summary judgments by district courts and affirmances by the Court of Appeals are now a daily ritual in civil rights cases.”
Without Jury Trials, Personal and Political Agendas Have Replaced the Law in Our Courts
As you can imagine, a biased judge can come up with any twisting of the rule, which is usually in favor of the more affluent party. But in reality, the only authority the judge has is to decide if the evidence as presented is questionable — and if so, the case must go to a jury trial. However, since there is no oversight of these judges, they often arbitrarily decide on the integrity of facts themselves, in abuse of the MSJ rule. Deciding on whether parties are being truthful, is by law, a function and power designated to a jury.
It is rare that on appeal the higher court will disagree with their peers in the lower court. For example, in a study of Pennsylvania federal courts, 77 percent of employment discrimination cases are dismissed via MSJs. The rest are only settled with any meaningful compensation if you are willing to share it by hiring an attorney. Self-represented (pro se) individuals, many of whom are skilled in litigation, do not appear to have any success in federal courts. In fact, that is a topic for another day, as another rule is being abused against informa pauperis litigants, which is how many self-represented litigants are forced to file. The courts have done everything possible to limit their services to those cases that are lucrative, and obstruct jury trials for everyone else.
Without jury trials, judicial power has become overbearing and is driving the country into a tyrannical oligarchy of the elite members of the bar associations. The public has been misguided into believing the political power lies with our elected officials. Not so . . . it lies in the federal courts, where the federal judiciary not only has final say on public policy through judicial review, but over individual lives, in both criminal and civil issues.
While both the federal and state courts show rampant MSJ abuse, it is the federal courts which are the most problematic. They are the last resort for victims of civil rights violations by state judges, under the Supremacy Clause. These types of cases are usually filed pursuant to 42 U.S. Code § 1983, Civil Action for Deprivation of Rights, and 42 U.S. Code § 1985, Conspiracy to Interfere with Civil Rights. They can involve complaints related to judicial misconduct issues, corruption in family court, employment discrimination, housing discrimination, mortgage fraud, or police brutality cases, to name a few.
Can a Judge Legally Put a Price on Justice?
The Judiciary members claim the MSJ rule is indispensable for “economic” purposes, however, it was originally instituted centuries ago only to resolve simple debtor issues. In the mid-twentieth century the courts refocused the rule to filter out frivolous lawsuits by prisoners, who can file for free and often direct complaints related to prison conditions. While this truly may be a systemic problem, the courts indiscriminately began to use the rule to weed out less lucrative cases as well as those which threaten corporate political donors. The effect of the now ubiquitous MSJ has been that, generally, only cases which generate revenue for the legal profession — which recycles it back into the political machine as campaign contributions — are given a jury trial.
A study on the MSJ in 2008 by Cornell University Law Professor Theodore Eisenberg (article posted below) found that “aside from displaying variation in summary judgment rates . . . civil rights advocates’ concerns about summary judgment may be well founded. Summary judgment rates in employment discrimination and other civil rights cases are consistently higher than rates in contract and tort cases.” He further stated that “the wider availability of jury trial in employment discrimination cases after enactment of the Civil Rights Act of 1991 may have shifted judicial behavior. Perhaps judges, concerned about allowing cases to proceed to trials no longer conducted by them, increased use of summary judgment to retain greater control of cases.”
Victims turned into judicial reform activists — in addition to academic legal scholars — have been sounding the alarm, but the majority of citizens remain unaware of the disappearance of the right to jury trial. This perversion of the process has transformed the justice system into a legal industry, and mecca for racketeering and organized crime. The scholars, most of whom have no stake in the attorney hourly fee system, have stated that many cases of merit have likely been dismissed using the MSJ. Scholars also report that MSJs are not necessarily more economical, but, in fact, are being used to complicate cases and increase legal fees.
The federal judges have become so driven by their own agendas that President Obama cited this injustice and failure of the federal courts in the Preamble to the 2009 Lilly Ledbetter Act. It states:
“The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.”
Descent Into Tyranny
Note that there exists no constitutional right to an MSJ. One does, however, possess a constitutional right to a jury trial. Nevertheless, because of a complete breakdown of the checks and balance system upon which our democracy is based, thousands of people have suffered injustice by the very people entrusted with the highest powers.
The first step towards ending government corruption is to listen to the Founding Fathers. No one has ever surpassed the ability to predict what could go wrong in our government than the primary author of the Declaration of Independence, Thomas Jefferson. Having your fate in the hands of any one individual is contrary to the very essence of a free society. This exposé cannot be concluded without his famous warning in his 1820 letter to William Jarvis :
“You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is “boni judicis est ampliare jurisdictionem,” and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.”
Read the Research and Judge for Yourself
If you would like to learn more about all of this, the articles upon which this post are provided below. The first listed is the most comprehensive study published in 2009 called “The Explosion of Summary Judgment…” It is suggested to begin by reading the first few pages of that one.
If you are really feeling energetic, take a stab at the The Federalist (more commonly know as The Federalist Papers), a series of 85 essays written between October 1787 and May 1788. The essays were published anonymously, under the pen name “Publius,” in New York newspapers of the time, in lobbying for adoption of the U.S. Constitution over the existing Articles of Confederation. The essays explain particular provisions of the Constitution in detail by its authors. For this reason, The Federalist Papers are often used today to help interpret the intentions of those who drafted the Constitution.