The second clause of the 7th Amendment, commonly called the Reexamination Clause, provides that, “no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” Recall that this clause was intended to prevent federal appellate courts from undoing what civil trial juries had done.
It has not quite worked out that way. The last part of the Reexamination Clause, the part that makes an exception for appellate review of jury findings “according to the rules of the common law,” means that, if American federal courts determine that the common law of Britain in 1791 allowed a British judge to “re-examine” facts found by juries, then the American courts can do the same thing. This creates what lawyers sometimes call “a loophole you can drive a truck through.” And American courts have driven right through it. Indeed, in modern practice, federal appellate courts frequently review facts found by juries and sometimes reverse what the juries have done.
However, federal appellate courts generally give much more deference to jury findings than they give to the conclusions of law reached by trial judges. This greater deference is reflected in the differing “standards of review” used by appellate courts to review the decisions of juries and judges. Appellate courts will typically only reverse a jury’s findings of fact if those findings are “clearly erroneous.” But those same appellate courts will typically give the trial judge’s legal findings no deference at all—they will review the law “de novo,” that is, as if they are looking at the issue for the first time.
One recent issue has arisen because of attempts to limit the size of damages that juries can award. These damage awards used to be considered as a part of the “facts” of the case which must be decided by juries and that could not be reexamined by appellate judges. In recent years, however, district courts have allowed review of these awards when they were so small or (more likely) so large that they violated some norm of reasonableness (for instance, if they “shocked the conscience” of the court). The Supreme Court, in Gasperini v. Center for Humanities, Inc. (1996), upheld one of these newer standards, finding that the appellate court could review an award if it determined that there had been an “abuse of discretion” by the jury. This decision skirted around the Reexamination Clause by deciding that jury awards were a question of law, not fact. Justice Scalia, in his dissent, criticized the verdict as tantamount to deciding that the 7th Amendment “has outlived its usefulness.”