Meanwhile, Off The Reservation

My grate gud friend (not a typo; praise a la Molesworth) Rick, who is still practicing law and has forgotten more than I know, anyway, gently fills in what I should remember:

Worth noting that the seventh amendment guarantees in "Suits at common law...the right to trial by jury...", but that's a pretty weak guarantee. IIRC, the seventh amendment has not been applied to the States through the fourteenth amendment. Cases in equity are not "Suits at common law," and fraud, historically sounds in equity, not law, where juries are not used, except in an advisory capacity (the "union of law and equity" in most modern jurisdictions makes application of the constitutional standard more complex). My own work in water right adjudications involves what is called locally a "special statutory proceeding" which, being unknown to common law, is not touched by state or federal requirements regarding jury trials. 

But that's neither here nor there, of course, since every law student in first year Civil Procedure learns that if you want a civil jury you have to file a jury demand with, or within a short time after filing, your complaint or petition.

I bring it up here because I’m more and more convinced Trump’s failure to ask for a jury was a feature, not a bug. As I mentioned before, it’s my memory that, due to the Sixth, Trump would have to affirmatively waive a jury in Florida and D.C. (and Georgia, but I’m focusing on federal cases). He hasn’t, and presumably won’t (don’t know what deadline the FRCP sets for waiving a jury). But I suspect he didn’t ask in this trial so he could bitch about it.

That no other individual defendant asked (or is in court) tells you Trump is calling the shots (and probably paying the bills.) But it seems the defendants all have the same lawyer, so….

(I would not envy any lawyer having to explain “water rights adjudications” to a jury.)

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.

I have no expertise in 7th Amendment jurisprudence, but just a plain reading says this preserves the jury trial under the new order (i.e., the Constitution), in case anyone worried otherwise. More interesting is the preservation of the finality of the judgment of the trier of fact. The trial court determines the facts of the case, which means appeals courts only review the application of law, but they’re stuck with the facts in the record. According (basically), as it says, “to the rules of common law.” Which really don’t have the authority they had in 1789, except insofar as stare decisis is “common law.”

Okay, I’m wandering off the reservation, now…