
doi: 10.2139/ssrn.210048
With the burgeoning of federal statutes authorizing recovery of various forms of monetary relief, a recurrent question has been whether the Seventh Amendment permits judges, rather than juries, to assess the amount of those statutory remedies. Debate has also arisen as to whether judges may assess certain common law remedies, most prominently punitive damages, without offending the dictate of the Amendment that "the right to trial by jury shall be preserved." The Supreme Court recently has offered conflicting views of when juries must assess legal remedies and when judges may do so. In addition, uncertainty exists over the proper scope of judicial review when remedial determinations are made by juries. The author addresses the extent to which judges may determine legal remedies, both as initial decisionmakers and as reviewers of jury awards. She asserts that the Seventh Amendment should not be read to prohibit judges from assessing punitive damages and other remedies for which the decisionmaker, in an absence of meaningful standards or rules, must exercise wide-ranging discretion in determining the factors to consider and how to weigh those factors. The author also evaluates the validity of some of the new standards and techniques being employed by courts to review jury awards, such as comparative review of awards, the use of statutory caps as guides for remittiturs below capped amounts, and the exercise of "independent judgment" in reviewing awards of punitive damages. Finally, she argues that if courts do interpret the Seventh Amendment to guarantee jury assessment of punitive damages, then the jury should be the principal decisionmaker on the amount of relief rather than merely the initial decisionmaker. She considers possible ways to accomplish this goal while protecting against unbridled jury discretion.
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