Mandamus as a Remedy for the Denial of Jury Trial

The Supreme Court has consistently stated that federal appellate courts may issue the writ of mandamus as an interlocutory remedy only under "extraordinary" circumstances," to correct a lower court order that is "not mere error but usurpation of power."2 The Court has explained that mandamus cannot serve as a substitute for normal appeal and should be available "only where appeal is a clearly inadequate remedy." '3 Nevertheless, most federal courts of appeals now routinely use mandamus to compel the lower court to conduct a jury trial.4 These appellate courts typically cite two Supreme Court decisions-Beacon Theatres, Inc. v Westover5 and Dairy Queen, Inc. v Wood-as authority for the proposition that the denial of a jury trial is not subject to the traditionally strict standards for the availability of mandamus. The Seventh Circuit alone has interpreted these decisions differently, holding that mandamus is the appropriate remedy only when the petitioner would be unable to appeal effectively the district court's denial of jury trial at the conclusion of the trial.7 Although it has had the opportunity, the Supreme Court has not yet resolved this circuit split.8