The Administrative State’s Jury Problem

Abstract: This Article argues that the administrative state’s most acute constitutional fault is its routine failure to comply with the Seventh Amendment. Properly understood, that Amendment establishes an independent limitation on congressional authority to designate jurisdiction to juryless tribunals, and its dictate as to “Suits at common law” refers to all federal legal rights regardless of forum. Agencies’ use of binding, juryless adjudication fails these requirements and must be reformed. But this does not mean dismantling the administrative state; it is possible (indeed, necessary) to solve the jury problem while maintaining modern government. To that end, this Article advances a structural theory of the Seventh Amendment that situates the civil jury as an institution within the modern administrative state. It contends that the Seventh Amendment’s demands can be met either by providing a jury trial within administrative adjudication in the first instance, or by providing a de novo jury trial in an Article III court afterward. And it unearths and presents historical and judicial support for both approaches. The Article further considers the consequences of incorporating lay participation into the work of expert agencies and shows that the disruptive impact likely would be minimal. It concludes by arguing that reintroducing the jury will increase the procedural legitimacy of the administrative state and, perhaps, its substantive accuracy and effectiveness, too.