The uncivil jury, part 1: Americans' misplaced sentiment about the civil jury

Americans' romance with the jury—bordering on religious devotion—is doing us no good.

Many Americans, from different political persuasions and classes, place great faith in the jury. Populists laud the jury as the voice of the ordinary person in government, and conservatives and libertarians praise it as protecting liberty. Some, following Tocqueville [Alexis de Tocqueville, Democracy in America, vol. 1, p. 275 (1835) (J.P. Mayer ed., George Lawrence trans., 1969), claim that jury service helps to educate citizens in law and government. Certain members of the legal profession, of course, have a considerable economic interest in promoting admiration of the jury, and they have done so vigorously. (See, for instance, https://www.justice.org/ and https://www.abota.org/.) Politicians continue a centuries-old rhetoric of dedication to the jury. To take just one example of many, a couple of years ago, Senator Sheldon Whitehouse of Rhode Island called the civil jury "a bastion of individual rights" and "a structural element of our system of government."

Even normally skeptical persons have been seduced. Recently I've had separate conversations about the jury with two legal academics, both prominent specialists in constitutional law with sharp analytical minds. Both opined at the beginning of our conversations that the civil jury played a significant role in limiting government, and was an institution worth preserving.

The problem is that these academics, like so many others, have not thought seriously about the civil jury and its role in the legal system today. Nor have they truly considered possible reforms. About the jury, as Judge Henry Friendly wrote in a different context, "eloquent phrases have been accepted as a substitute for thorough thought." (Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 679 (1968).) This series of posts is an effort to correct that deficiency.

Those of us who value liberty, or who value citizen participation or education in government, need to understand that the civil jury today is no help. It hardly decides cases at all. Every state except two (Louisiana and Colorado) has a guarantee of civil jury trial in its constitution. Yet, according to a thorough study, in 2002 jury trials constituted 0.6 percent of all state court civil dispositions. [Brian J. Ostrom et al., Examining Trial Trends in State Courts: 1976-2002, 1 Journal of Empirical Legal Studies 755, 768 (2004).] There is no reason to think that the percentage has risen since then, given downward trends at the time of the study and no factors to boost rates of jury trial.

Civil jury trial is so long, expensive, and unpredictable that the vast majority of parties would rather settle than endure it. To be sure, to some extent bargaining over settlement occurs "in the shadow of the jury," that is, based on the expectation of what a jury would do. There is, however, often a large degree of uncertainty and enormous pressure to settle. Thanks to the American Rule, in general the losing party does not pay the winner's legal fees. Even a party with a good chance of success, therefore, has great incentive to settle to avoid the costs of jury trial. No wonder many parties flock to arbitration when they can.

Judges don't like presiding over civil jury trials, either. Some courts have taken to requiring mediation in the hopes that civil jury cases will go away. (Most courts have a whole system now of alternative dispute resolution, or ADR.) Some federal district courts, faced with competing criminal dockets, are resorting to highly coercive measures to force settlement and to prevent civil jury trial. One U.S. Attorney told me that in his district, federal district judges task magistrates with "encouraging" settlement if a civil case is resistant. The magistrates insist that the lawyers for all parties, and the parties themselves, including CEOs of companies, appear and stay every day in chambers until the case settles. This is known as "sweat lodge justice."

One of the saddest features of our legal system is that constitutional requirements of civil jury trial have prevented development of almost any other form of adjudication, especially bench trial. Courts therefore resort to sweat lodge justice. Summary judgment can provide an alternative, but it is not available in all cases. Despite interpretations of rules that encourage use of summary judgment, many cases undeniably do present a "genuine dispute" as to "material fact" and thus cannot be decided by a judge on summary judgment. A recent study by the Federal Judicial Center found that summary judgment motions are filed in less than 20% of federal cases.

A society with no reasonable system of adjudication is in deep trouble. Liberty will not be preserved under such circumstances. Even those who have a minimalist conception of government ought to concede that, apart from maintaining military defense and police, the government should run decent systems of criminal and civil adjudication. Otherwise, our fellow citizens and residents will curtail our liberty in short order. Substantive rights will be worthless against the government.

The greatest obstacle for many Americans in thinking clearly about the jury is its history. Reverence for this history has blinded Americans to the current state of the civil jury and the legal system. Americans often worship their history, especially the history of the founding era, when passion about juries was high. In the third post in this series, I'll discuss how juries in the 18th century in England and America served as a procedure that sometimes protected substantive rights against the government.

But that was in criminal cases and in suits against government officials. Whatever may be the value of lay adjudication in cases involving the government, the jury does not play the same role of limiting the government in private disputes. We must keep this distinction in mind, as many persons confuse the different types of cases in thinking about the jury.

Americans are hugely sentimental about the processes of law, which they view as connecting them with their history. A French lawyer visiting the United States in the 1920s was amazed that the process of law in America is "surrounded with more than semireligious respect." He observed that a "trial in a private law case, instead of being what it should be, a business meeting, is somewhat like a high church ceremony." (Pierre Le Paulle, Administration of Justice in the United States, 4 West Pub. Co. Docket 3192, 3193 (1928).) The most important contributor to this misplaced liturgical atmosphere, which sometimes veers into that of a revivalist camp meeting, is the jury. Bench trials are both more sober and informal.

Because selective knowledge about the jury's history is such a stumbling block to rational consideration, this series of posts will take the reader through the whole history in essentially chronological order. The series will end by discussing possibilities for reform.

Before we begin, let us observe an endpoint. The civil jury has been effectively abolished in every other common law country. England, Australia, New Zealand, and Canada prohibit jury trial and hold bench trials in almost all civil cases. These countries were not hampered by constitutional rights to jury trial, and bench trials were thought to be more efficient and fairer. The United States, hobbled by jury rights in federal and state constitutions and by public sentiment in favor of the jury, has had to resort to various unsatisfactory maneuvers to circumvent jury trial. The result is that we have little civil adjudication at all.

Again, there is an important distinction here between civil and criminal cases. These common law countries have not abolished the criminal jury. Indeed, even countries on the Continent of Europe have thought it wise to incorporate lay participation in deciding serious criminal cases, which they would never dream of doing in civil cases.

In the next post, I'll discuss the origins of the jury and the common law system in England; the need for radical simplification of disputes before they could be decided by a jury; and consequently the absolute necessity of an alternative way to resolve complicated disputes.