The jury and participatory democracy.

• Author: Lahav, Alexandra D.
• Position: The Civil Jury as a Political Institution

TABLE OF CONTENTS INTRODUCTION I. WHO DECIDES AND WHY IT MATTERS A. Self-Government B. Tyranny, Corruption, Judicial Bias II. SOME OBJECTIONS TO JURIES A. Complexity B. Inconsistency C. Juror Bias III. WHAT THE JURY DOES NOT KNOW CONCLUSION INTRODUCTION

Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.

Our constitutional legacy and collective self-understanding has included a place for citizen adjudicators. (1) This self-understanding may be contrasted with the idea that specialists, experts, and professionals ought to have sole responsibility for legal decisions. The theory that underlies this self-understanding is an ideal of law as accessible to ordinary people and of a populace educated enough to understand the laws governing their lives. The debate about the jury right can be linked to a broader debate about the role of experts and to skepticism about the possibility of true objectivity, the social good that experts purport to provide. (2) The controversy surrounding the jury is also an expression of disagreements over the desirability of a representative form of government, perhaps one ruled by virtuous elites, as compared with direct democracy. (3) But the choice need not be all one or the other. Indeed, the jury provides one element of ordinary common sense in a system governed by experts, a melody of populism in an institution otherwise dominated by the harmony of elites.

The ideal that our legal system is knowable to lay people and amenable to lay intervention does not reflect lived reality. Jury trials are increasingly rare. (4) Our education system is much criticized. (5) Complex legal disputes are difficult to understand even for generalist judges, (6) and the legal world is growing ever more complex. (7) The Founders themselves were not entirely in agreement over the benefits of the trial by jury, (8) and the right to participate in the jury, like other civil rights, was severely restricted when the Seventh Amendment was ratified. (9) Even so, were we to give up on the jury trial, that loss would constitute an injury to the moral ideal of citizen participation in government. (10)

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 these decisions. (11) This Essay considers the significance of the choice of adjudicator for the ideal of self-rule. (12)

1. WHO DECIDES AND WHY IT MATTERS

   A man is speeding late at night on a rural road. The police try to pull him over. He accelerates. Sirens blaring, the police chase him down the road through several intersections and the quiet parking lot of a mall closed for the night. A few other cars are on the road. At several points the driver crosses a double yellow line. Finally, one of the police cars giving chase bumps the back bumper of the speeding car to run it off the road. As a result, the car careens off the road and crashes. The driver is severely injured, paralyzed from the neck down. He sues, arguing that when the officer bumped his car, this was excessive force under the Fourth Amendment. The question in the case is straightforward, but not an easy one: was the officer's conduct reasonable?

   This question should be answered by a jury. (13) But no jury had a chance to hear Scott v. Harris, the case on which this short story is based, before the Supreme Court weighed in. (14) Police officers had videotaped the entire incident through cameras mounted on their cars. (15) The Supreme Court watched the video and nearly all the Justices agreed: (16) Officer Scott's decision to ram the back of Mr. Harris's car was reasonable because the high speed chase was extremely dangerous to the officers and innocent bystanders. (17) Eight Justices believed that the video showed them everything they needed to know. (18) They did not see how any reasonable person could interpret the video differently than they did. (19)

   A subsequent study, however, showed that people have a variety of reactions to the video. (20) Some agreed with the Justices; others disagreed. (21) It is possible that a good lawyer, presenting this video to the jury, could convince them that the officer's conduct was unreasonable. (22) A local jury, familiar with the road in question, might also believe that the officer's conduct was reasonable. One of my students from Georgia made an eloquent argument in favor of the majority's conclusion that the police officer's conduct was reasonable based on his experience driving that very road. This would ordinarily be considered a fact to be determined by jurors like him.

   Because Scott v. Harris involves a contested constitutional right, it is a good core case to think about in connection to two central and related arguments in favor of the jury right: that it is a form of self- government and a protection against government tyranny. (23) 42 U.S.C. [section] 1983 allows any person to sue state officials for depriving that person of their federal constitutional rights, and in those suits plaintiffs have a right to a trial by jury. (24) Such lawsuits are in part intended to regulate the conduct of the police departments and other governmental entities that are sued by ordinary citizens. (25) These suits are also meant to compensate individuals who were harmed and to express disapproval of wrongful conduct. (26) The decision maker in Scott v. Harris, be he a judge or juror, is making law in the sense that going forward, police and citizens will know a little more about what is appropriate in the context of a high-speed chase. This decision regulates primary conduct in society. That adjudicator is also deciding the scope of a constitutional right that informs everyday interactions between individuals and the state. Who should set the parameters of those interactions?

   1. Self-Government

      The jury is a constitutional office. (27) Service on a jury provides the opportunity for individuals to participate in the making and enforcement of law, jobs that are usually the province of government officials. Many characterize the jury right as a type of political participation, like voting. (28) Some of the same questions apply to voting and jury service: Is the electorate sophisticated enough to make these decisions? Does citizen involvement lead to better decisions? Does it lead to greater sociological legitimacy--that is, are people more willing to accept results they do not like when the decisions come from a popular body? Does it enable people to make better judgments as citizens in other areas of political life? (29) It is not clear that we can ever come to a final conclusion on these questions, but jury service unequivocally achieves two things: it exposes citizens to the inner workings of the courts, and it places them in a position of power within the court system. (30) The value of observation is educational; the value of participation is dignitary. (31)

      First, by serving on a jury citizens observe how the court works first hand. They watch the judge's interactions with the parties and with them. They hear the evidence and a description of the relevant law. They see the lawyers' conduct before the court and towards them. There are other ways to achieve the same ends, such as by observing open court proceedings as a visitor. Most of the exposure individuals have to the civil justice system probably does not come from such direct observation, however. Instead, it likely comes from the media, in the fictionalized form of serial television shows such as Law and Order, the semi-fictionalized reality court television shows like Judge Judy, or in the form of generalized critiques of the civil justice system found in books or news reports. (32) None of these provide accurate portrayals of the civil justice system, although each may have something to commend it. Seeing the workings of the court system first hand is not the only educational benefit of jury service, as jurors also learn about the specific law at issue in the case in order to decide it. (33) But one cannot expect a citizen's entire civic education to be contained in the jury box. Too few citizens serve on juries (34) and too little law applies to each case for jury service to be a robust form of civic education. Accordingly, the role of the jury trial as an educational tool is more symbolic or expressive than real.

      The fact that jurors are deciding cases, not only observing them, is important. Jurors who are charged with ultimately deciding a case before them are likely to be focused and attentive to the proceedings and to understand the importance of deciding cases correctly. Deciding cases also emphasizes the significance of a legal decision maker's job to the jury. Studies indicate that jurors take their job seriously. (35) Primarily, the decision-making power communicates respect for the jurors who are entrusted with the fate of another citizen's case. Although civil matters decided by juries ordinarily do not involve liberty interests, (36) they are still very important to the participants, important enough to invest the significant amounts of time and money necessary to get to trial. This dignitary interest is the basis for the equal protection jurisprudence governing juror selection. In forbidding peremptory challenges of jurors solely on the basis of race and gender, the Supreme Court emphasized "the honor and privilege of participating in our system of justice." (37) Being excluded from jury service, through the selection of the initial pool or by peremptory challenge, violates the rights of the juror to equal protection because it denies...