Re: cert petition granted

On 10/17/97, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> On Thu, 16 Oct 1997, Terry Carroll <carroll[_at_]tjc.com> wrote:
> >
> > It would surprise me that there could be a split where
> > a court of appeals could find that the amount of the statutory damages
> > is a question for the jury, in light of the text of the statute.
>
> After a night's sleep, I think I have to modify this. If the issue
> is construction of the statute, I'll stay with the above. However,
> it occurs to me that the statute itself may subject to a Seventh
> Amendment attack.
>

But what is the nature of the Seventh Amendment right? Surely there was no right to statutory damages determined by a jury before 1791? And the plaintiff still gets a jury trial on lost profits/unjust enrichment damages.

Perhaps the argument is a rather different one -- that statutory damages determined by a court deprive the *defendant* of their right to a jury trial?

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/acadaff/intelprop/

For information on the 1998 Computers, Freedom and Privacy conference, see http://www.cfp.org

For a list of my publications, and how to find them, see http://www.law.utexas.edu/lemley/pubs.htm Received on Mon Oct 20 1997 - 14:04:34 GMT