dissenting.
The trial jury in this wrongful death action returned a verdict for plaintiff that included an award of $1 million in noneconomic damages. After the court dismissed the jury, the court granted the motion of defendant PeaceHealth to reduce that part of the jury’s award to $500,000 pursuant to ORS 31.710.1 That statute places an upper limit, or “cap,” of $500,000 on the noneconomic damages award “in any civil *160action seeking damages arising out of bodily injury, including * * * death * * * of any one person * *
Plaintiff argues that the elimination of one-half of the jury’s noneconomic damages award pursuant to ORS 31.710 constitutes an interference with her right to a trial by jury under Article I, section 17, of the Oregon Constitution, which provides:
“In all civil cases the right of Trial by Jury shall remain inviolate.”
According to plaintiff, this action is a “civil case” within the meaning of the constitutional phrase “all civil cases” and, as a result, the trial court’s action of cutting the jury’s noneconomic damages award in half undermines plaintiffs jury trial right.
The majority disagrees with that argument because, the majority contends, the common law did not recognize, in 1857 or now, “a right to unlimited damages in wrongful death actions * * *.” 344 Or at 157. The majority also asserts that “wrongful death in Oregon is purely statutory and has no secure basis in the common law as it existed in 1857 * * Id. at 155-56. Consequently, according to the majority, the legislature is free to impose any cap that it desires on plaintiffs statutory wrongful death damages.
The majority’s focus on the specific claim at issue here and whether a plaintiff had a common-law right to “unlimited damages” on that claim in 1857 is too narrow and, consequently, is not accurate. This court has held that the constitutional jury trial right refers to the historically recognized civil jurisdiction of the courts of law and their traditional practice of trying actions at law before juries. The constitutional right does not turn narrowly on whether, at statehood, the common law recognized a particular claim or “cause of action,” as the majority contends.
Justice Walters also concludes that the majority’s reasoning and result violate Article I, section 17, of the Oregon Constitution. I agree with that conclusion. I write separately to draw attention to an aspect of this court’s case law under that provision that requires a different analysis and result from that offered by the majority.
*161To begin, the majority can take no solace in its observations that “plaintiff had * * * a [jury] trial” and that “wrongful death cases always have been tried to a jury.” 344 Or at 156 n 12. If this action is one to which the constitutional right to trial by jury attaches, “Article I, section 17, prohibits the legislature from interfering with the full effect of a jury’s assessment of noneconomic damages * * Lakin v. Senco Products, Inc., 329 Or 62, 78, 987 P2d 463 (1999). Under Article I, section 17, the legislature may not create a scheme, applicable to a constitutionally protected jury trial, under which the court must cut in half a jury’s verdict for noneconomic damages to satisfy a legislative cap. The jury trial right, as this court has held, “includes having a jury determine all issues of fact, not just those issues that remain after the legislature has narrowed the claims process.” Molodyh v. Truck Insurance Exchange, 304 Or 290, 297-98, 744 P2d 992 (1987).
The majority likewise inhibits rather than advances a correct interpretation of Article I, section 17, by relying heavily on Greist v. Phillips, 322 Or 281, 906 P2d 789 (1995), for the view that the legislature, consistently with Article I, section 17, may impose a cap on a jury’s verdict for noneconomic damages because the legal action in question — wrongful death — exists by reason of a statute. That reliance is erroneous for two reasons. First, this court in Lakin reexamined and rejected a key conclusion in Greist, i.e., that Oregon courts historically had authority to reduce the amount of a jury’s verdict over the objection of the aggrieved party. Lakin concluded that that authority did not exist. 329 Or at 76. That flawed conclusion in Greist was the basis for the court’s determination that no jury trial right applied in wrongful death proceedings. 322 Or at 295. Because that determination was legally unfounded, this court cannot any longer “assume without deciding,” as Greist did, that a wrongful death action is “of like nature” to a personal injury action to which the right of jury trial attaches.2
*162Second, by declaring that Greist was “distinguishable,” Lakin, 329 Or at 77, the Lakin court concluded only that Greist provided no assistance to the resolution of the jury trial issue in Lakin-, the court did not endorse, and had no occasion to endorse, the view stated in Greist that the statutory nature of an action at law, such as a wrongful death, eliminates the constitutional right to a jury trial. Other case law, that Greist never cited or discussed, shows the error of that view.
What, then, is the correct understanding of the scope of legal disputes to which the constitutional phrase “all civil cases” applies? In addressing that question, it is important to recall that Article VII (Amended), section 3, states, in part, that “[i]n actions at law, where the value in controversy shall exceed $750, the right of trial by jury shall be preserved * * (Emphasis added.) In Molodyh, this court described the latter provision as an implied limitation on the range of “civil cases” to which Article I, section 17 applied and confirmed that the jury trial right does not apply literally in all civil matters. 304 Or at 295. Molodyh concerned a contract action regarding an insurance policy. Using the more recently adopted terminology in Article VII (Amended), section 3, the Molodyh court expressed the interpretive principle regarding the claimed jury trial right as follows:
“[A]s long as this form of dispute is tried as an action at law, a jury trial is required.”
Id. at 297 (emphasis added). Each constitutional provision provides helpful context for the determination of the meaning of the other. Although Article VII (Amended) creates a $750 “value in controversy” qualification on the jury trial *163right, it appears that the forms of disputes that the two constitutional provisions address, i.e., “civil cases” and “actions at law,” are substantively identical. This court’s case law, discussed below, confirms the correctness of that interpretation.
Article I, section 17, was a part of the original Oregon Constitution. This court’s early cases construing that provision recited that it preserved the right to jury trial as it existed at or before statehood, but gave no clear indication of the nature of the “civil cases” to which the jury trial right attached before statehood. See, e.g., Deane v. Willamette Bridge Co., 22 Or 167, 169, 29 P 440 (1892) (“This provision of the constitution creates no new right to trial by jury. It simply secures to suitors the right to trial by jury in all cases where that right existed at the time the constitution was adopted.”).
This court explained the reach of Article I, section 17, in 1927 in State v. 1920 Studebaker Touring Car et al, 120 Or 254, 251 P 701 (1927). In 1920 Studebaker, police had arrested plaintiffs husband after they discovered that he had been driving her car while carrying a container of liquor on his person. A grand jury refused to indict him for any crime.
The wife had no knowledge that her husband had used her car to transport intoxicating liquor. Nevertheless, the state commenced a statutory proceeding in rem to forfeit the vehicle to the state, because the husband had used it to transport a bottle of liquor. The statute authorized the wife to enter the forfeiture proceeding as a defendant by filing a statement of her interest in the property as well as any ground for a defense to forfeiture. The wife did so. The statute also expressly authorized the circuit court to try the forfeiture proceeding “without a jury.” Id. at 257. The question before the court was whether that provision deprived the wife of her right under Article I, section 17, of the Oregon Constitution to try the statutory forfeiture proceeding before a jury.
The court began by reciting, as it had in previous cases, the broad proposition that the state constitution preserved the right to jury trial as it had existed at statehood:
“The right of trial by jury guaranteed by the Constitution of this state, embraces every case where it existed *164before the adoption of the Constitution, and it is not within the power of the legislature to enact any law which deprives any litigant of that right. Hence if as contended for here, this appellant before the adoption of the Constitution of this state, in having the question determined of whether her property should be forfeited, would have been entitled to a jury trial as a matter of right, then this act, since it deprives her of such right, is unconstitutional and void * *
Id. at 259 (citations omitted).
The court then concluded that a forfeiture of property was analogous to the imposition of a penalty for a violation of law and that, traditionally, jury trials had accompanied efforts of the legal authorities to judicially enforce penalties, including in the context of felony criminal proceedings. The court then explained the three-part division of Oregon’s courts at statehood that provided the specific context for the constitutional right to jury trials in “all civil cases”:
“At the time when our state Constitution was adopted, courts were classified according to the nature and extent of their jurisdiction, their forms of proceeding, or the principles upon which they administered justice, either as courts of admiralty, courts of equity, or courts of law. Controversies concerning forfeitures of rights or property could be adjudicated only in some one or more of these courts, since in this country there were no other courts in which controversies of that nature could be adjudicated.”
Id. at 261.
The court explained that, in courts of admiralty and courts of equity, no constitutional jury trial right applied:
“Courts of admiralty had jurisdiction to enforce forfeitures, without the aid or presence of a jury, but its jurisdiction was limited to cases arising under the admiralty or maritime law, and it never had jurisdiction to enforce a forfeiture where the seizure was made on land.
“Courts of equity have always refused to lend their aid to the enforcement of a forfeiture, ‘It is a well-settled and familiar doctrine,’ says Professor Pomeroy, ‘that a court of equity will not interfere on behalf of the party entitled thereto, and enforce a forfeiture, but will leave him to his *165legal remedies, if any, even though the case might be one in which no equitable relief would be given to the defaulting party against the forfeiture. The few apparent exceptions to this doctrine are not real exceptions, since they all depend upon other rules and principles. * * There are, in fact, no exceptions to this doctrine; those which appear to be exceptions are not so in realty.’ 1 Pom. Eq. Juris (3 ed.), §§ 459, 460.”
Id. at 261-62.
The court distinguished courts of equity and admiralty from “courts of law,” in which the right to trial by jury, by tradition, did apply:
“Courts of law administer justice according to the rules of the common law, and are held for the trial of civil causes with the presence and aid of a jury, and where there are issues of fact to be determined, the trial ordinarily must be by jury.”
Id. at 262. The phrase “rules of the common law” was a reference to the jurisdiction of the law courts (as opposed to courts of equity or admiralty) under the English and American common-law systems. That phrase did not refer only to specific claims or causes of action cognizable under the common law.
The court made that point clear in a succeeding passage that addressed and rejected the state’s argument that the statutory character of the forfeiture proceeding, and its enactment after adoption of the state constitution, precluded any constitutional right to jury trial:
“It is argued that these proceedings concern matters in respect to prohibitory laws enacted since the adoption of the Constitution, and for that reason are not within the guarantee of the Constitution, and that controversies concerning violations of them may be disposed of by the courts in any manner the legislature sees fit to adopt. The answer to this contention is, that the constitutional right of trial by jury is not to be narrowly construed, and is not limited strictly to those cases in which it had existed before the adoption of the Constitution, but is to be extended to cases of like nature as they may hereafter arise. * * *
*166“It is contended, however, that because the procedure authorized by this act is a special statutory proceeding in rem against certain specific offending property, it is a proceeding unknown to the common law, and therefore does not entitle the claimant or owner of the property sought to be forfeited to a jury trial.
“Where, as in this case, the seizure was made on land, and a libel or information was filed to condemn the seized property, which as in this case was purely a proceeding in rem, the rule before the adoption of the Constitution was and still is, that the suit is at common law, and that the claimants or owners of the property are entitled to a jury trial before a judgment can be passed forfeiting the seized property.”
Id. at 263-64 (emphasis added).
The court also confirmed that the relevant inquiry is whether, under the traditional scheme of the common law, the underlying dispute would be resolved by a court of admiralty, a court of equity, or a court of law:
“In 12 R.C.L., page 133, in stating the law applicable to forfeitures, the authors say:
“ ‘In the trial of all cases of seizure, on land or on waters not navigable, the court sits as a court of common law, and as in all cases at common law where there are issues of fact to be determined, the trial must be by jury. In cases however of seizure made on navigable waters the court sits as a court of admiralty, and, as in cases of admiralty and maritime jurisdiction generally, it is settled that the trial is to be by the court. Although the two jurisdictions are vested in the same tribunal, they are as distinct from each other as if they were vested in different tribunals, and can no more be blended than a court of chancery with a court of common law.’ ”
Id. at 265-66.
The court then applied the analysis that it had set out. There was no contention that the forfeiture proceeding belonged in a court of admiralty, because the seizure of the car was made on land. After lengthy discussion, the court concluded that the statutory proceeding did not invoke the *167remedial jurisdiction of a court of equity. That is, the statutory proceeding sought the divestment of the wife’s property, not an injunction to restrain an illegal use of property. The fact that the statutory proceeding involved an action against the property itself did not alter that conclusion:
“The fact that because the proceedings authorized under this act are in rem and not in personam does not change the character of the suit from that of a common-law action into a suit in equity, nor does it affect the question of the right of the owner to a trial by jury in this case.”
Id. at 269.
The court ultimately concluded that the wife had a state constitutional right to a jury trial in the statutory forfeiture proceeding. The court declared that the legislature’s requirement that the court should try the proceeding without a jury was “merely surplusage, and beyond the power of the legislature to enact * * *.”Id. at 271. The court remanded the case for a new trial before a jury.3
This court has cited and followed 1920 Studebaker consistently since 1927. Not once has this court reconsidered or withdrawn any aspect of the reasoning or result in that *168case, and it remains today as the most detailed examination in our case law of the classes of proceedings to which the right to jury trial applies under Article I, section 17. Yet, the majority cites 1920 Studebaker, but fails to follow the analysis in that case, and ultimately concludes, in direct opposition to 1920 Studebaker’s holding, that the statutory nature of a wrongful death proceeding precludes any right to a jury trial. That answer simply ignores the analytical approach that our case law requires.
Any analysis of the question whether the jury trial right applies here must begin with the statute that describes the wrongful death action, ORS 30.020, which provides, in part:
“(1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent’s surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent’s domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within three years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, by the personal representative or by a person for whose benefit the action may be brought under this section if that person is not the wrongdoer.
“(2) In an action under this section damages may be awarded in an amount which:
“(a) Includes reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent;
“(b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of *169income during the period between injury to the decedent and the decedent’s death;
“(c) Justly, fairly and reasonably compensates for pecuniary loss to the decedent’s estate;
“(d) Justly, fairly and reasonably compensates the decedent’s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and
“(e) Separately stated in finding or verdict, the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived.”
In ORS 30.020, the legislature has created a statutory extension of the traditional common-law claim for personal injury to authorize a recovery of damages by the injured party’s family members when the injury is so severe that it results in death. The vehicle for that recovery is an “action against the wrongdoer.” ORS 30.020(1). The authorized remedy is an award of noneconomic, economic, and punitive damages against the wrongdoer. ORS 30.020(2).
ORS 30.020 embodies an “action at law” and a “civil case” within the meaning of the jury trial guarantees in our state constitution. Or Const, Art I, § 17; Art VII (Amended), § 3. Stated differently, the courts of law established in the common law before statehood would have addressed the action at law that the wrongful death statute authorizes, and would have tried the action to a jury. In no sense is that action one that would have been addressed at common law by courts of equity or courts of admiralty.
It is unnecessary to decide whether the common law recognized, before statehood, a specific tort claim for wrongful death. The jury trial right, according to 1920 Studebaker, extends to actions at law that were known at statehood and also to cases of like nature that may arise after statehood. The legislature has complete authority, for example, to authorize injured parties to bring a statutorily defined action at law in Oregon courts to recover damages from a tortfeasor for causing a wrongful death. Such a statutory action at law is a case of like nature to an ordinary common-law tort claim in which the injured party can recover a similar range of *170damages, even though the injury stops short of causing death. Properly interpreted, the constitutional right to a jury trial applies to the trial of each of those actions at law.
The majority errs in concluding that the application of the statutory damages cap in ORS 31.710 to the jury’s verdict here is consistent with plaintiffs right to jury trial. Lakin explains why application of a damages cap interferes with full effect of a jury’s assessment of damages in an action at law. 329 Or at 78. By the same reasoning, the conclusion is inescapable that cutting the jury’s noneconomic damages in half, pursuant to a statutory damages cap, constitutes a deprivation of the constitutional right to jury trial.
Jensen v. Whitlow, 334 Or 412, 51 P3d 599 (2002), is not to the contrary. This court stressed repeatedly in that case that it was resolving a facial challenge to a statute, ORS 30.265(1), that eliminated a tort remedy against an individual public employee tortfeasor and substituted instead a capped damages remedy against the public body that employed the tortfeasor. Before addressing the jury trial issue under Article I, section 17, the court determined that the statute survived a facial challenge under the Remedy Clause in Article I, section 10. That was so because, in at least some cases, a damages award below the statutory cap against the public body would constitute a sufficient remedy under Article I, section 10. Id. at 421. Turning to the jury trial issue, the court repeated that, in the context of the facial challenge, the statute had permissibly eliminated the tort remedy against the individual tortfeasors. As a result, the plaintiff had no cognizable claim against those defendants. The court stated: “It follows that there is no claim to which a right to a jury trial can attach. Thus, ORS 30.265(1), on its face, does not violate Article I, section 17.” Id. at 422. In the present case, it is uncontested that ORS 30.020 does authorize an action at law by plaintiff against defendants for wrongful death. Thus, the premise for the Jensen court’s response, on a facial challenge, under Article I, section 17, is absent here.
It must also be noted that Jensen repeated a quotation from Lakin that purported to present a shorthand version of the holding in Molodyh, limiting the jury trial right to “ ‘civil actions for which the common law provided a jury trial *171when the Oregon Constitution was adopted in 1857[.]’ ” Jensen, 334 Or at 422 (quoting Lakin, and noting that Lakin cited Molodyh) (brackets in Jensen). That shortened version does not describe the rule in Molodyh accurately, because it omits “cases of like nature” from the scope of the right of jury trial. The majority repeats that error here. The accurate quotation from Molodyh is:
“This court also has stated that a jury trial is guaranteed only in those classes of cases in which the right was customary at the time the constitution was adopted or in cases of like nature.”
Molodyh, 304 Or at 295 (emphases added). For that proposition, Molodyh cited three cases, including 1920 Studebaker. Id. The “cases of like nature” aspect of the state constitutional jury trial right thus has been settled law in Oregon for at least 80 years.
In order to provide some semblance of reasoning to support its result, the majority takes several odd steps that do not withstand scrutiny. First, the majority cites but fails to engage in any analysis of the key authorities that support recognition of the jury trial right here: 1920 Studebaker and Molodyh. Next, as noted, the majority relies extensively on statements about legislative and judicial authority to limit damage awards in Greist that this court undermined and abandoned in Lakin. The majority then asserts that plaintiff seeks to use the constitutional jury trial right to create or retain a substantive claim or theory of recovery. That is not accurate. ORS 30.020 grants plaintiff authority to bring the action at law that she had brought and that action closely resembles other actions at law that, at Oregon’s statehood, were traditionally accorded a jury trial in the courts of law. The majority’s unsuccessful search for an exact match at common law for the current statutory wrongful death action at law disregards 1920 Studebaker and incorrectly narrows the intended flexible application of the jury trial right to actions at law “of like nature” that Oregon law may recognize after statehood. The correct question — whether the statutory wrongful death action is, in constitutional terms, a “civil case” and an “action at law,” or a case of like nature — is one that the majority never addresses.
*172Oregon’s constitution commits this state to protecting the right to jury trial in all civil cases and in all actions at law where the controversy exceeds $750 in value. In a textual command that should have particular significance for the judiciary, Article I, section 17, declares that the right of jury trial “shall remain inviolate.” Those three words, written at statehood by the framers, is a candid acknowledgment that, over time, assaults on the right to jury trial will come not only through efforts at overt withdrawal, as in 1920 Studebaker, but also through the indirect effects of statutes and rules that condition and qualify the right by more subtle means. Those words charge the judiciary with an important duty: to guard the people’s right to jury trial against erosion, including from complex statutory schemes that enjoy the support of powerful legislative majorities.
Unlike other constitutional provisions, for which the framers intended a fixed and inflexible application over time, the right of jury trial is, and was meant to be, timeless. The right applies to actions at law never imagined, let alone legally recognized, at statehood. The majority violates the true conception of the right to jury trial by confining it to non-statutory claims that Oregon law recognized before statehood. Qualifications of that sort have no basis in the constitutional text or in our precedents that govern the right to jury trial. I cannot join in their creation here.
Because plaintiffs challenge to the statutory damages cap under Article I, section 17 is well taken, I do not address plaintiffs challenge to the damages cap under the Remedy Clause in Article I, section 10.
I respectfully dissent.
Walters, J., joins in this dissent.ORS 31.710 provides, in part:
“(1) [With certain specified exceptions], in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500,000.
“(2) As used in this section:
“(b) ‘Noneconomic damages’ means subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.”
Greist stated that it assumed, without deciding, the correctness of the plaintiffs argument that a wrongful death action was “of like nature” to a personal injury action:
“Plaintiff argues, however, that the right to a jury trial is ‘not strictly limited to cases in which it existed in 1859, when [Article I, section 17,] became *162effective,’ because the right extends to ‘cases “of like nature” ’ to those that existed at common law at the time the constitution was adopted. Plaintiff argues that, in 1857, a right to jury trial existed for personal injury actions; that a wrongful death action is ‘of like nature’ to a personal injury action; and, thus, that the right to a jury trial attaches here. Even accepting the premise that a wrongful death action is ‘of like nature’ to a personal injury action, plaintiffs argument would not prevail. When Article I, section 17, and the constitution were adopted, a jury’s determination of the amount of damages to be awarded in tort actions was not protected from judicial alteration.”
322 Or at 294 (emphasis added).
In State v. Gann, 254 Or 549, 463 P2d 570 (1969), this court quoted with approval the following passage of a dissenting opinion in Dimick v. Schiedt, 293 US 474, 55 S Ct 296, 79 L Ed 603 (1935), that confirmed that the Seventh Amendment to the United States Constitution served to retain the same distinction, to which I have referred, concerning the right to jury trial in actions at law, but not in proceedings in equity or in admiralty:
“ ‘The Seventh Amendment commands that “in suits at common law,” the right to trial by jury shall be preserved, and that “no fact tried by a jury shall be otherwise re-examined by any court of the United States, than according to the rules of the common law.” Such a provision of a great instrument of government, intended to endure for unnumbered generations, is concerned with substance and not with form. There is nothing in its history or language to suggest that the Amendment had any purpose but to preserve the essentials of the jury trial as it was known to the common law before the adoption of the Constitution. For that reason the Court has often refused to construe it as intended to perpetuate in changeless form the minutiae of trial practice as it existed in the English courts in 1971. From the beginning, its language has been regarded as but subservient to the single purpose of the Amendment, to preserve the essentials of the jury trial in actions at law, serving to distinguish them from suits in equity and admiralty, see Parsons v. Bedford, 3 Pet. 433, 446, and to safeguard the jury’s function from any encroachment which the common law did not permit.’ ”
254 Or at 557-58 (emphasis added; citation omitted).