Anthony Kennedy

“ Obvious differences between a union and a trustee will exist in other contexts. I would conclude only that, under the analysis directed by our precedents, the respondents may not insist on a jury trial. When all rights and remedies are considered, their action resembles a suit heard by the courts of equity more than a case heard by the courts of law. See Tull, 481 U.S., at 417, 107 S.Ct., at 1835. From this alone it follows that the respondents have no jury trial right on their duty of fair representation claims against the Union. ”

“ Actions which, beyond all question, are equitable in nature may involve some predicate inquiry that would be submitted to a jury in other contexts. For example, just as the plaintiff in a duty of fair representation action against his union must show breach of the collective-bargaining agreement as an initial matter, in an action against a trustee for failing to pursue a claim the beneficiary must show that the claim had some merit. ”

“ If Congress has not provided for a jury trial, we are confined to the Seventh Amendment to determine whether one is required. Our own views respecting the wisdom of using a jury should be put aside. Like Justice BRENNAN, I admire the jury process. ”