Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment

The modern scholarly discussion of remittitur has been largely limited to the appropriate standards for applying the doctrine and to the appellate review of the motion. Moreover, the Supreme Court's discussion of the constitutionality of remittitur under the Seventh Amendment was dicta and focused only on whether remittitur violated the defendant's constitutional rights. This article takes a new look at the constitutionality of remittitur. The Seventh Amendment uniquely requires that the re-examination of facts determined by a jury should be only according to the "rules of the common law." A review of the text of the Seventh Amendment's re-examination clause, as well as the Supreme Court jurisprudence on the Seventh Amendment, suggest that the English common law in 1791 should influence the analysis of the constitutionality of remittitur. This article examines for the first time the English common law on remittitur and the new trial for excessive damages. The study shows that English courts did not employ remittitur to reduce verdicts. Accordingly, it can be argued that remittitur is unconstitutional. A view of the common law as fixed or static, based only on the English common law, may not be accepted, however. Using an interpretation of the common law in the re-examination clause as not fixed or static based only on the common law, but as evolving, this article argues that the result is the same: remittitur is unconstitutional. Under an interpretation of the common law as evolving, for remittitur to be constitutional, the plaintiff must have the option of taking a new trial as an alternative to accepting the remittitur. Effectively, under the practice of remittitur, plaintiff does not have this option. An original study of remittitur decisions in the federal courts over ten years was conducted and is used to support the conclusion that remittitur effectively eliminates plaintiff's right to a jury trial.