The Jury Is Still Out: Waiver or Conversion of the Seventh Amendment Right to Jury Trial in Bankruptcy Cases

Author: Theresa J. Pulley Radwan

Excerpt:

The Seventh Amendment to the United States Constitution protects the right to a jury trial in certain civil proceedings.  In the more than 200 years since the adoption of the Seventh Amendment, the United States Supreme Court has provided guidance on its applicability in a variety of proceedings, including those filed under the United States Bankruptcy Code and heard by the bankruptcy courts.  Although this guidance on the intersection of the Seventh Amendment and bankruptcy law clarifies the right to jury trial of some creditors, issues remain regarding a variety of situations in bankruptcy cases.  The way Supreme Court precedent impacts these rights has garnered significant attention, and widespread acceptance exists as to the propriety of Supreme Court caselaw at the core of bankruptcy jury trial opinions.  This Article reconsiders the Supreme Court’s guidance in light of other non-bankruptcy Supreme Court cases and suggests reconsideration of the bases for those opinions as a foundation for future decisions on the ability of a party to seek a jury trial in bankruptcy matters.