Right to Jury Trial in Shareholder Derivative Suits

Abstract

While the question of a constitutional right to jury trial in a civil action is infrequently litigated, it presents some of the most evasive issues, both technical and historical, of our merged federal practice.' The Supreme Court in Ross v. Bernhard,2 faced with determining the effect of the merger of law and equity upon the right to jury trial in a suit which is historically equitable in nature,3 held that legal issues in a stockholders' derivative suit are triable to a jury. The right to a jury trial is grounded in the seventh amendment to the Constitution, adopted in 1791, which guarantees that "in suits at common law... the right of trial by jury shall be preserved . . ... In the years immediately subsequent to 1791 it was a relatively simple task to determine whether the constitutional guaranty extended to civil actions, but the constant development and sophistication of our legal system, culminating in the merger of law and equity, has created problems not contemplated by the drafters of the seventh amendment. The result has been a considerable amount of confusion regarding the scope of the seventh amendment, and the stockholder's derivative suit, apparently unknown in 179 1,5 is a paradigm of this uncertainty. The suit in Ross was instituted by two shareholders against the directois of their closed-end investment company and the cor-