Introduction: the civil jury as a political institution.

• Author: Solomon, Jason

TABLE OF CONTENTS A. The Jury as Locus of Popular Sovereignty B. Conceptions of the Juror's Role C. Injecting Community or Justice Values D. Implications For much of the nation's history, the criminal jury has enjoyed an iconic role in the American justice system. In Duncan v. Louisiana, Justice Byron White described the criminal jury as a protection against arbitrary rule that had been recognized as an essential safeguard of individual liberty since the founding of the nation. (1) But White also acknowledged the existence of a longstanding debate about the wisdom of "permitting untrained laymen to determine the facts in civil and criminal proceedings." (2) He intimated that those criticisms may be even stronger with respect to the competence of civil jurors to understand evidence and to decide cases fairly and predictably. Such criticisms dated back to the Founding, and the debate between Federalists and anti-Federalists over the Seventh Amendment's guarantee of a jury in civil cases.

More than two hundred years later, the debate over the role of the civil jury continues unabated. But even as questions about the civil jury's competence as an adjudicative institution continue, questions surrounding the civil jury's justification and role as a political institution are underexplored.

To explore these questions in contemporary society, the Bill of Rights Institute and Law Review at William & Mary Law School hosted a symposium on The Civil Jury as a Political Institution. For two days in February 2013, scholars from an array of disciplines gathered to consider the extent to which the civil jury played a meaningful role as a political institution historically, whether it still serves that purpose today and, if so, what measures can or should be taken to ensure its continuing significance. This issue of the William & Mary Law Review is the compilation of papers that formed the basis for that discussion.

Robert Burns' contribution is a useful place to start, as he interrogates what we might mean when we say that the civil jury is a "political institution." (3) For Burns, the jury is a political institution in part because each juror--and then the jury collectively--is "taking public action through public institutions" and in choosing one narrative over another, is determining "his own public identity and the identity of his community." (4) In rendering a verdict, juries act politically by implicitly understanding their task as the "reconstitution of a common project and the establishment of a public identity." (5) It is also a political institution because it allows and encourages a "multiplicity of perspectives." (6) Finally, Burns sees the jury as political in the sense that it is balancing competing values--political, moral, and legal--in a particular case. (7) In this way, the jury can decide to elevate their own "common sense political and moral judgment" above the 'law of rules." (8)

With Burns' framing in mind, three distinct themes emerged from the Symposium papers: the jury as locus of popular sovereignty; differing conceptions of the role of individual jurors; and the tension between community or justice values, and rule-of-law values.

1. The Jury as Locus of Popular Sovereignty

   For Akhil Amar, the jury was the locus of popular sovereignty--lay control over governance--from the time of the Founding, (9) and this historical pedigree remains a compelling justification for the jury's role. (10) Amar encourages us to see the civil jury as part of a larger family of juries, including the grand jury and criminal petit jury. (11) By looking at the grand jury, which hears several cases at once, we see that the civil jury may be disadvantaged institutionally versus the judiciary by the fact that it only sees one case at the time. (12) Amar draws the analogy between the jury and the House of Representatives as the 'lower house" in their respective branch of government. (13)

   Amar also points to the criminal jury's role as a tool to prevent government oppression, and suggests that the jury is particularly important in civil cases involving "man against the government." (14) Meanwhile, we might consider, says Amar, whether the nonunanimous verdicts in civil cases could also work on the criminal side. (15) Finally, he points out that we think of jury duty and voting rights, but what about a duty to vote? (16) Indeed, we might decide that voters have a duty to listen to different sources of information and deliberate over their choice, just as we now require of jurors. (17)

   Alexandra Lahav sees this popular-sovereignty justification as important as well, and particularly emphasizes the Tocquevillian theme of educating citizens in self-governance. (18) For Lahav, "The best argument in favor of juries in a pluralist republic such as our own is not that jurors make better decisions than other actors, but that citizens are the ones making the decisions." (19)

   Jury service exposes citizens to the inner workings of the courts and places them in a position of power within the court system. (20) According to Lahav, "The value of observation is educational; the value of participation is dignitary." (21) When judges grab power for themselves, one risk is corruption or bias in favor of government; another risk is simply unwarranted confidence in the accuracy of their own decision-making skills. (22) Lahav suggests that perhaps juries favor individuals over institutions, which might counterbalance the fact that institutions have greater resources, or are repeat players. (23)

   William Nelson and Suja Thomas draw on history to argue for particular roles for the jury that are worth preserving. Nelson points to the civil jury as the appropriate adjudicative body to make informed decisions on politically sensitive issues. (24) Indeed, Nelson argues that legislators and judges "affirmatively delegate political...