Reexamining the Seventh Amendment Argument Against Issue Certification

Abstract

Issue certification does not run afoul of the Seventh Amendment because of the constitutional doctrines of standing and ripeness. Part II(A) and II(B) examines FRCP 23 and the history of class actions and issue certifications. Next, Part II(C) analyzes Rhone Poulenc and its Seventh Amendment analysis. Part III(A) argues that ripeness and standing undermine Seventh Amendment arguments concerning reexamination. First, as to ripeness, the reexamination argument relies on a series of speculations: that the class plaintiffs will prevail on the trial of the common issues; and that a second jury would—contrary to legal presumptions — ignore the trial judge’s instructions, and then reexamine some part of the class decision. These multiple suppositions should not preclude issue classes. Second, even if the matter becomes ripe, the defendant will still lack standing: it is only when the issue-class plaintiff prevails on the first round that a second jury could exist. If the second jury spurns the trial court’s instructions by revisiting issues decided in the first trial, that reexamination would likely redound to the defendant’s benefit, diminishing in some manner the common issue finding favoring the class plaintiffs. Thus, the defendants would lack standing to advance a Seventh Amendment claim because the defendants would suffer no harm. Finally, Part III(B) notes that the class plaintiffs—the likely potential victims of any jury reexamination—can avoid a Seventh Amendment complaint by voluntarily and knowingly waiving violations, just as American citizens can for any of their constitutional rights.