The Urban Lawyer

Our Eminent Right to a Jury

by Gideon Kanner

Gideon Kanner is Professor of Law Emeritus at the Loyola Law School in Los Angeles. He is former editor of Just Compensation, a monthly periodical on the law of eminent domain and was a regular columnist on takings law for the National Law Journal. He was a visiting Professor at the University of Aberdeen, and a guest lecturer in several British universities, as well as a speaker and a recipient of a British Academy scholarship at the International Colloquium on Expropriation Law held in 1990 at Oxford University.


CALIFORNIA’S LATE CHIEF JUSTICE, ROGER TRAYNOR, once wrote that there are notions embedded in the law that have never been cleaned and pressed and might disintegrate if they were. A case in point is a holding embedded in the California Supreme Court decision in City of Perris v. Stamper, 1 Cal. 5th 576 (2016). It was one of those complicated decisions with something for everybody that dealt with the issue of when, if at all, the existence of a future land dedication requirement as a condition to development must be considered now in valuing condemned land subject to such a dedication or exaction requirement in the future. This may sound like technical stuff, but it can have a profound impact on the value of the taken land and is thus of interest to lawyers as well as appraisers.

Much has already been said about this difficult legal problem, and I leave to others the plumbing of its complexities. I focus instead on the court’s prefatory decision, holding that this problem is not a jury issue, but must rather be decided by the trial judge because “no such jury right existed in England and the colonies in 1791.”

Unfortunately, this rule is mythical; eminent domain cases were triable to juries in Merry Old England in the 18th century, and therefore the American courts’ belief that they were not is mistaken. This is important because the Seventh Amendment does not create a right to a trial by jury; it only preserves this right in cases where trial by jury was available at common law at the time the Bill of Rights was written. The Perris case cites a U.S. Supreme Court case as authority, but no British sources, which, as it turns out, are to the contrary.

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