Second-order diversity revisited.

• Author: Abramson, Jeffrey
• Position: Introduction through II. The Negative Case Against First-Order Diversity, p. 739-772 - Response to Heather Gerken, Harvard Law Review, vol. 108, p. 1099, 2005 - The Civil Jury as a Political Institution

TABLE OF CONTENTS INTRODUCTION I. FIRST-ORDER VERSUS SECOND-ORDER DIVERSITY II. THE NEGATIVE CASE AGAINST FIRST-ORDER DIVERSITY A. Predeliberation B. Deliberation 1. Faction Size as an Obstacle to Deliberation 2. Diversity as an Aid to Deliberation a. Actual Jury Deliberations b. Mock Jury Deliberations 3. Diversity and Legitimacy III. THE POSITIVE CASE FOR SECOND-ORDER DIVERSITY A. Benefits to Jurors B. The Advantages of Aggregation C. Bargaining in the Shadow of Jury Verdicts D. Cross-Over Participatory Experiences as a Form of Civic Education E. Imartiality IV. CIVIL JURIES: A VARIATION ON VARIATION? A. Scott v. Harris: Diverse Attitudes Toward the Police B. Mass Torts: Hemophiliacs and HTV CONCLUSION INTRODUCTION

Counterintuitive claims, by their very nature, are spectacular high-wire acts. They seek to defend the implausible, the opposite of what our intuitions treat as obvious. To prove a counterintuitive hypothesis is profoundly unsettling to received wisdom. We come to see the familiar in a new light.

Heather Gerken's 2005 article, Second-Order Diversity, deftly accomplished just such a counterintuition about the jury. (1) Gerken began with what most persons would consider a troubling feature of both the civil and criminal jury systems--that different juries, composed in different ways, reach different verdicts in cases that seem similar. (2) Ideally, we want like cases treated alike; we do not want verdicts to sway with the luck of the draw as to who is on the jury. We value coherence and consistency, predictability and uniformity as necessary to the rule of law. (3) But Gerken turned accepted wisdom on its head and set out to show that variation among juries was, within limits, a virtue, not a vice of the jury system--indeed the crucial virtue that makes juries a check on the inegalitarian tendencies of majority rule in a democracy. (4) Variation in the racial composition of juries from one case to the next, for instance, accomplishes for law what variation in the racial composition of districts does for elections: the latter speaks to the democratic fairness of empowering minorities to elect their preferred candidate in some districts and the former, by analogy, to achieving their preferred verdict in some cases.

In this Article, I review both the empirical literature and the democratic philosophy that led Gerken to her embrace of the benefits of variation. I will argue that her counterintuition fails in the end to keep the jury's political and legal functions from flying apart. And I will defend precisely what Gerken rejects--the contribution that diversity on individual juries makes to closing the gap on bodies that are expected both to represent the community and yet do impartial justice.

1. FIRST-ORDER VERSUS SECOND-ORDER DIVERSITY

   Gerken's argument begins by distinguishing two concepts of diversity. First-order diversity is a norm or ideal that seeks to make each jury a mirror or microcosm of the community from which it is drawn. In other words, the goal is diversity or representation within each jury. (5) By contrast, second-order diversity seeks "variation among decisionmaking bodies." (6) What is crucial is not that any single jury be representative of the community but that, in the aggregate, the very differences in jury composition from case to case rotate power and participation among the full, heterogeneous range of groups in the population.

   The distinction between first- and second-order diversity is both a descriptive and a normative claim. Descriptively, random selection is not a procedure designed to guarantee diversity within particular juries. (7) To take Gerken's example, in a state with a 35% African-American and 65% white population, a system designed to achieve first-order diversity would mean that three to four persons on every jury would be African-American. By contrast, random selection will generate a series of results along a spectrum. About a third of juries will have five to six African-Americans. Roughly 15%, however, will have two or fewer African-Americans, whereas about another 8% will have seven or more. Thus, what random selection produces is second-order diversity--a variation in jury membership from one case to another, with different groups predominating at different times. (8)

   Whereas second-order diversity is a theory that explains the pattern ideally made by random selection, a theory of first-order diversity has less descriptive power. The constitutional and statutory principles governing jury selection only require that the initial pool of persons from which potential jurors are randomly drawn be a fair cross section of the community. The Supreme Court has emphatically rejected arguments that particular juries must achieve or maintain mirror-image representation. (9) Indeed, equal protection jurisprudence prohibits courts from using race-conscious methods to achieve cross-sectional jury representation. (10) The fact that the law does not apply the norm of mirror-image representation to individual juries casts doubt, for Gerken, on whether first-order diversity is really the theory implicit in existing selection methods.

   Several strategies could potentially close this gap between theory and practice during jury selection. One approach is to double down on first-order diversity as the right theory and argue for extending the fair cross section requirement to actual juries. That extension can be rigid, as it is when scholars argue that quotas are necessary. (11) Or it can be more relaxed, as it is with proposals to give litigants some choice in "affirmatively selecting] a jury" (12) or with schemes of weighted or stratified selection that only seek to solve predictable problems that keep random selection from working as intended. (13) These remedies share a theoretical commitment to achieving demographic diversity within the jury even though differing considerably on how much they concede to practical difficulties in achieving the goal. (14)

   The other strategy for healing the breach between theory and practice--Gerken's strategy--is to jettison the very ideal of balanced demographic representation on individual juries. Even if we were to ever more perfectly practice the theory of descriptive representation, (15) we would still, according to Gerken, reach the democratic dead-end to which such "integrationist" norms lead. To be sure, cross-sectional juries bring minorities to the table and grant them the influence that comes from being present in small numbers. But influence is one thing--power is another; and Gerken normatively prefers second-order diversity to first-order diversity precisely because the former statistically leads to jury trials in which minorities are in control as the dominant numerical faction. (16)

   Second-order diversity "turns the tables" on the majority by accomplishing for the jury system what the creation of majority-minority districts does for elections: space for minorities to "exert the type of power usually reserved for the majority." (17) Gerken refers to such results as "disaggregated democracy." (18) Instead of a model of democracy in which we aggregate individual preferences in ways that repeatedly empower the majority, disaggregated democracy creates topsy-turvy situations "where members of the majority experience what it is like to be deprived of the comfort--and power--associated with their majority status." (19)

   One might pause here--Gerken does pause--to consider whether the unanimous verdict requirement gives minorities more than idle presence on cross-sectional juries. After all, the rule would seem to empower even one or two jurors to hold out against the larger majority faction. (20) Gerken, however, follows in the tradition of Kalven and Zeisel in debunking deliberation as more mythic than real--a political rather than reasoned process of exerting "strong social-psychological" pressure on outliers to succumb to the will of an initial majority. (21) Thus, even under the unanimous verdict rule, "individuals who occupy the ends of the democratic spectrum are unlikely to prevail," as the scales of justice tip in the direction of the median juror viewpoint. (22)

   Many commentators consider the move toward the middle to be one of the virtues of jury trials because it minimizes the dangers to any one litigant of drawing an outlier jury. (23) Gerken, however, implores us to reconsider our intuitions. The problem is that cross-sectional jury design is a blueprint for permitting the same majority faction to "decide things all the time," with only that sort of compromise necessary to reach the "tipping point" beyond which remaining jurors are too few to maintain a hold-out. (24) From the point of view of basic democratic fairness, Gerken argues, we should be concerned with a process in which the minority is granted seats at the table, only to lose. (25)

   In what follows, I will argue that the negative case against first-order diversity and the positive case for second-order diversity are not as strong as Gerken would have it. The negative case depends on a radical dismissal of the contributions diversity makes to the transformative power of reasoned argument and collective deliberation on a particular jury--a dismissal called into question by a growing...