Analysis: Do you get a jury trial in federal condemnation cases?

By Michael Elias Shammas

Are you entitled to a jury of your peers when the federal government wants to condemn your property? If so, who does a better job at accurately assessing a property’s value—juries or experts? Finally, who values property higher—government experts or laypeople?

The answers might surprise you.


The most surprising answers concern the second and last questions. If you want more value than you are owed, you might actually prefer the commission of government experts. See Wanling Su, What is Just Compensation?, 105 Va. L. Rev. 1483, 1529 (2019) (“[E]mpirical evidence suggests [that] government appointed commissions systematically misvalue homes [and that] commissions overvalue homes as often as they undervalue them.”) (emphasis added).

The least surprising answer concerns the first question, because if you care about the Seventh Amendment (like most readers of this newsletter), you should prefer a jury, as both the amendment’s plain language as well as the methodology used by courts in its application suggest that everyone should have a right to trial by jury in federal condemnation proceedings.

Unfortunately—even though the Seventh Amendment’s “historical test represents a rare instance in which the modern [Supreme] Court has come to almost complete agreement on methodology,” id. at 1535 (citing Darrell A. H. Miller, Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second, 122 Yale L.J. 852, 887 (2013))—citizens are often denied a jury in condemnation proceedings.

Indeed, despite broad agreement over the nature of the historical test—emphasizing that the Seventh Amendment “preserves” the right to a civil jury and therefore that, in analyzing what the amendment protects, one must look to what was protected in the courts of England at the time of the Bill of Rights’ 1791 adoption—courts have been inconsistent in application. As you may have already guessed, one area where this inconsistency is especially notable concerns the question of whether it is permissible for government agencies to determine “just compensation” in eminent domain cases.

The Historical Test

Such inconsistency is puzzling. As Wanling Su argued in December in an excellent law review article, the Seventh Amendment’s historical test clearly imposes a procedural requirement that a jury decide compensation in order for the “just compensation” requirement to be met. Id. at 1483 (emphasis added). If the historical test is applied correctly, a jury is not optional but mandatory. That is, the constitutional language puts forth not a suggestion but a requirement, and any fair examination of the history—like that in Su’s law review article—reveals that the substitution of government agencies for juries is flatly unconstitutional.

In her piece, Su persuasively and comprehensively corrects the “common misperception” that juries did not determine just compensation in eighteenth-century English and colonial practice. Id. at 1484. She argues that this misperception largely “stems from late nineteenth century dicta,” id. at 1487, and that it has been wrongly codified in Federal Rule of Civil Procedure 71.1 (which gives district courts the right to deny jury demands). Unfortunately, such dicta are flatly at odds with “[t]he historical records documenting both English in American practice in 1791.” Id. at 1492. These records unequivocally show that English courts did not waive their “customary practice of impaneling juries when it came to takings.” Id.

Jurors versus Experts

Although most of Su’s piece analyzes the history of the Takings Clause, the most interesting part concerns not the historical basis for the right to trial by jury in condemnation cases but rather the empirical evidence showing that jurors do a better job than experts. Contrary to public opinion, Su finds that lay jurors come to more accurate conclusions than experts. Id. at 1530.

This finding is significant because the logic for why jurors are more accurate than experts applies to contexts outside just compensation. Indeed, an advantage that juries—all juries—have is that they are not repeat but one-time players. This means that unlike experts (repeat players), jurors do not have to worry about their reputation, which in turn allows for greater honesty and for more disagreement among jurors.

Thus, while one expert might be better than one layperson in deciding a complex issue such as the fair market value of a home, in group contexts lay jurors consistently make better decisions than experts. This superiority of laypersons to experts stems from the fact that disagreement heightens the likelihood that a group will come to an accurate conclusion, yet experts have less incentives to disagree than lay people because “[d]isagreement signals that at least one of the group members is wrong and [therefore] carries with it professional repercussions.” Id. at 1533. Needless to say, lay jurors do not have to worry about any such “professional” repercussions, and therefore (unlike experts) are not disincentivized to disagree.

Interested readers can find the entire article available for free here.