How the Courts banned the little guy from challenging Big Business under the Anti-Trust Laws.

The dirty deed was done by depriving the little guy of his constitutional right to a jury trial. The 7th amendment to the U.S. Constitution reads as follows: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law..”

The supreme court held early on (After the passing of the Sherman Act in 1890) that antitrust cases, though resting on a statuette, met the common-law test and hence were entitled to jury trial under the 7th Amendment. For nearly 9 decades, until the mid-70s, the US courts honored this Constitutional mandate and accorded antitrust plaintiffs the right of trial by jury, treating its verdict by respect and even deference, as obviously called for by the magisterial phrase: “no fact tried by a jury, shall be otherwise reexamined in any Court of the United States…” Beginning in about 1975, however, our courts decided that juries were not to be trusted in antitrust. Such cases are “complex” they said, and mere “laymen” can’t understand the intricacies of business and the “economic” theories required to grasp them. Only a judge, appointed by the President and confirmed by the senate, has the “disciplined mind” to handle a subject as important as national Anti-Monopoly® policy.

What happened to the 7th amendment? It was still there. The U.S. judges simply began to ignore it in antitrust cases. Today, there is a routine in our federal courts that amounts to a de facto repeal of that Constitutional provision. If you file an antitrust case, the first thing a federal judge will do is see to that you never get to a jury.

1)  The monopolist you’re suing will make a motion to strike your complaint as legally inadequate, as failing to allege facts that the law condemns.

2)   If you make it over that first hurdle, the money-rich monopolist will hit you with a financially crushing burden of discovery, a barrage of subpoenas stripping your files bare and a long series of depositions of your employees and those of other firms in your industry. At that point you will probably be bankrupt and will voluntarily dismiss your case.

)   If you are somehow able to carry on, the monopolist will then make a motion for “summary judgment”, a request for a ruling by the judge that, even ASSUMING the truth of all the “facts” you have been able to muster via your “discovered” documents and depositions, you still have no case. Motion granted, case dismissed.

4)   If by some miracle you happen to survive that deadly motion for “summary judgment” (Some 90% or more of all antitrust cases are finished by this point) you get to present your case to a jury, offering your documents and your witnesses. When you are through, the monopolist will make a motion for a “direct verdict”, for a finding by the judge that “no reasonable jury” could hand down a verdict in your favor. Motion granted, case dismissed.

5)  If you survive that first motion for a directed verdict, after you have put in your own affirmative case, the monopolist will then put in his defense an endless stream of industry witnesses and documents designed to swamp the jury, plus a platoon of “expert” economists swearing that every “fact” you’ve presented to the jury is at best implausible (In economic theory), i.e. false. When the defense rests, the monopolist will make a second motion for a “directed verdict”, a finding by the judge that, in view of the “overwhelming” evidence presented in opposition to your case, “no reasonable jury” could sensibly believe you. Motion granted, case dismissed.

6)  If you should still be alive at this point (and virtually no antitrust plaintiffs are), the jury will be allowed to actually hand down a verdict. And since only an essentially impregnable antitrust case will ever be allowed to reach a jury today, the odds this time are heavily in your favor. The jury verdict is: “guilty”. Judgment for the plaintiff, and a lump sum of money is awarded. Under the law, the judge must treble that figure and award you a judgment 3 times that amount. You are ecstatic.

7)  The monopolist promptly makes a motion for “judgment notwithstanding the verdict” (JNOV), i.e. demand that the judge set aside the jury verdict on the ground that “no reasonable jury” could have found in your favor. Motion granted, case dismissed.

8)  You’re outraged at having your hard-won jury verdict taken away from you by the judge, so you appeal to the appropriate US court of appeals, asking it to reverse the trial judge and restore your jury verdict. You spend a small fortune in legal and economic fees to prepare your appellate brief and argue for 15 minutes before a 3-judge appellate panel. You haven’t a prayer. Judgment for the monopolist affirmed, case dismissed.

9)   Made of very stern stuff, and by mortgaging your home and borrowing from your family, you raise enough dollars to pay your lawyer to file an appeal in the US Supreme Court (Petition for certiorari). Some 7000 such petitions are filed each year, and just over a hundred of them are argued and ruled upon by the Supreme Court. Your odds of getting heard? Zilch. Petition for certiorari denied, case dismissed

10) But suppose you manage to get the Supreme Court to actually hear your antitrust case, against all odds. You can file a brief (again at a heavy cost) and your lawyer gets a few minutes to argue for your anomic life. But he and you now face a formidable ideological gauntlet, the “dirty dozen” antitrust precedents of the Court. If your case involves naked price fixing, and incontrovertible proof that it has, say, imposed on you price overcharges of 50 % or more, you might have a small chance of winning. Otherwise, appeal denied and case dismissed.

What about your right to a jury trial under the 7th Amendment? It’s gone. The Supreme Court routinely admonishes the lower courts to take antitrust cases away from the jury, to dismiss antitrust complaints, to grant defense motions for summary judgment, to grant verdicts for the monopolist, to set aside jury verdicts for the antitrust plaintiff.

So what about the phrase, “no fact tried by a jury, shall be otherwise reexamined in any Court of the United States?” It’s gone. Our judges routinely rule that, if the jury decided for the plaintiff in an antitrust case, it was acting “unreasonably”. The defense offered by the monopolist is invariable “plausible” to our appointed judges, i.e. “economically” sensible and therefore appropriate, by their lights. All this has apparently been wrought under the 7th Amendment’s qualifying phrase: “…than according to the rules of the common law.” Antitrust plaintiffs are entitled to a jury trial, and to have the jury’s findings honored by the nation’s judges (“…no fact shall be …reexamined”), EXCEPT where the “rules of the common law” dictate otherwise.

(c) 1998 Antitrust Law & Economics Review, Inc., Box 3532, Vero Beach, FL 32964. Excerpt reproduced by permission of the publisher from Charles E. Mueller, “‘Monopoly Is Good’: A Judicial Star Chamber for the Antitrust Plaintiff,” ANTITRUST LAW & ECONOMICS REVIEW, Vol. 28, No. 4, pp. 17-22.


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