Democratic Renewal and the Civil Jury

• Jurisdiction: United States,Federal
• Citation: Vol. 57 No. 1
• Publication year: 2022

Democratic Renewal and the Civil Jury

Richard L. Jolly

Valerie P. Hans

Robert S. Peck

Democratic Renewal and the Civil Jury

Cover Page Footnote

* Associate Professor of Law, Southwestern Law School. † Charles F. Rechlin Professor of Law, Cornell Law School. $ President of the Center for Constitutional Litigation, P.C. This article draws on our white paper, written for the Civil Justice Research Initiative at the University of California, Berkeley, School of Law. The authors thank Anne Bloom, Erwin Chemerinsky, Kevin Clermont, and Alexandra Lahav for their extraordinarily helpful comments on early drafts.

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DEMOCRATIC RENEWAL AND THE CIVIL JURY

Richard L. Jolly,^* Valerie P. Hans,^† & Robert S. Peck^‡

The United States is in a period of democratic decline. Waning commitment to principles of self-governance throughout the polity necessitates urgent action to revitalize the Republic. The civil jury offers an often-overlooked avenue for such democratic renewal. Welcoming laypeople into the courthouse and deputizing them as constitutional actors demonstrates a profound faith in representative governance and results in wide-reaching and pronounced sociopolitical and administrative benefits. The Seventh Amendment of the U.S. Constitution and similar state provisions protect the rights of litigants to jury trials in most circumstances. But these promises have been hollowed over time through legal, political, and practical challenges. The result is that civil juries play a more minor role in resolving civil disputes today than at any other point in American history. If the civil jury is to serve as a locus of democratic power and as an emboldening civic experience for those who serve, it too must be renewed. To this end, this Article offers six research-based recommendations, informed by the distinctive approach that jurors bring to decision-making as well as the sociopolitical benefits that undergird the institution. Adopting these strategies can help reintroduce democracy into the civil justice system, and in doing so, can help direct America back toward the nation's democratic aspirations.

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TABLE OF CONTENTS

I. INTRODUCTION.....................................................................81

II. THE FOUNDATIONAL BENEFITS OF TRIAL BY JURY.............91

A. THE CONSTITUTIONAL ROLE OF THE CIVIL JURY.........92
B. THE SOCIOPOLITICAL BENEFITS OF THE CIVIL JURY IN PRACTICE..............................................................99

1. The Civil Jury's Fact-Finding Advantages over Judges.........................................................99
2. The Civil Jury Promotes Civic Engagement and Systemic Legitimacy.................................107

III. THE PRECIPITOUS DECLINE OF THE CIVIL JURY..............112

A. PROCEDURAL DIVESTING OF THE CIVIL JURY'S AUTHORITY..............................................................113
B. LEGAL CRITIQUES OF AND ATTACKS ON THE CIVIL JURY........................................................................126
C. A CULTURE DISCOURAGING OF CIVIL JURY TRIALS .... 136

IV. RESTORING THE DEMOCRATIC PROMISE OF THE CIVIL JURY..................................................................................140

A. REMOVING BARRIERS TO CIVIL JURY TRIALS.............141

1. Adopt a Jury-Trial Default Rule.....................141
2. Remove Damage Caps......................................144
3. Expand Procedural Experimentation..............147

B. PROMOTING FAIR AND ACCURATE JURY FACT-FINDING.........................................................151

1. Ensure Representative Juries..........................151
2. Return to Twelve-Person Civil Juries.............. 155
3. Adopt Active Jury Reforms .............................. 158

V. CONCLUSION.....................................................................161

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I. INTRODUCTION

The United States is in a period of crisis. At the time of this writing, COVID-19 has claimed the lives of over a million people and hospitalized over four million.¹ The sickness has upended every aspect of the nation's social, economic, and government institutions, and, with new variants regularly emerging, there seems to be little sign of abatement.² The dominant political parties, which were deeply polarized even before the pandemic, have grown only more so.³ And opportunistic public figures have used the emergency to foment a loss of faith in the nation's institutions with shocking effectiveness.⁴ A Harvard study found that a plurality of young Americans today believe that American democracy is "in trouble" or "failing," with a third believing that the country is on a path to civil war.⁵ But perhaps the darkest indicator of democratic malaise occurred on January 6, 2021, when a violent mob stormed the capitol in an attempt to prevent the peaceful transfer of political

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power at the federal level for the first time in the nation's history.⁶ It is said without hyperbole that the flame of American democracy is rapidly extinguishing.⁷

Given the depth and severity of the Republic's current crisis, the civil jury might not be the first solution to come to mind as a potential democratic corrective. The institution is regularly relegated in popular and constitutional discussions to being little more than an optional dispute resolution tool, with some disparaging it as a poor one at that.⁸ It is rarely spoken about broadly in terms of its sociopolitical significance and the role it plays in enabling democratic participation and a commitment to representative governance. But what critics of the civil jury fail to appreciate is that the institution is an integral piece of the constitutional puzzle that, along with other reforms, may help America forge a path toward democratic renewal.⁹ As political and social leaders search for institutional and legislative reforms to address the nation's current legitimacy crisis, the civil jury should be high on their shortlist.

It is easy to forget that in early American history the right to trial by civil jury was widely celebrated as among the most cherished constitutional protections. indeed, commitment to the institution served as a chief motivator in prompting the American Revolution and in debating and achieving the Constitution's ratification. Recall that British efforts to restrain colonial civil juries through enacted legislation motivated not only the First Congress of the American Colonies in 1765,¹⁰ but was also explicitly listed in the Declaration

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of Independence as a grievance justifying the Revolution.¹¹ And roughly a decade later, ratification of the United States Constitution was in no small part secured by a promise to guarantee civil jury protections as part of a subsequent Bill of Rights,¹² which was realized in 1791 with the Seventh Amendment.¹³

Furthermore, the civil jury has never been merely a feature of the federal government. The constitutions of all thirteen original states secured the institution—in fact, the civil jury was likely the only right so universally protected at the Founding.¹⁴ When the Fourteenth Amendment was ratified roughly a century later, the constitutions of thirty-six out of thirty-seven states guaranteed the right to a jury trial.¹⁵ And today, Colorado, Louisiana, and Wyoming are the only states without civil jury guarantees in their constitutions, though all three protect the right by legislation in certain contexts.¹⁶ Furthermore, this broad protection is in some sense uniquely American. Though England was the progenitor of common law civil juries, the country abandoned their widespread use after the First World War.¹⁷ And while lay participation in resolving disputes has recently expanded in some countries—

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perhaps most successfully in Argentina¹⁸ —no other countries protect the right to trial by civil jury as widely and as foundationally as the United States does.

Strong political, social, and administrative motivations compel America's commitment to civil juries and provide guidance for addressing the nation's current democratic decline. By nature of its institutional characteristics, the jury is positioned to check the application and development of law as enacted and enforced by the government, and to serve as a bulwark against powerful social and economic actors.¹⁹ It is a democratic part of the Constitution's complex system of checks and balances, ensuring that few acts of government affecting core private rights can be brought to bear without passing through a body of local laypeople.²⁰ For this reason, jury service and voting have long been conceptually linked as forms of meaningful political participation; in fact, as Professor Andrew Ferguson notes, "In the hierarchy of political rights, the jury trumped voting in importance [at the Founding]."²¹ And as French thinker Alexis de Tocqueville recognized after closely studying the early American body, "The jury is . . . above all a political institution."²² Even today, to serve as a juror is a political designation: it is to be deputized as a constitutional officer worthy of resolving private disputes.²³ The civil jury is enshrined in the Constitution specifically because of—not despite—it being a locus of democratic power.

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But it is not just the inherent political power that makes the institution of interest in this time of American crisis; perhaps more important is that through exercising this power, the jury serves as a venue for fostering a commitment to democratic governance. Again, looking to the early body, Tocqueville described jury service as a virtue-enhancing exercise that impresses upon those who serve the skills required for self-governance, noting: "[Juries] make all men feel that they have duties toward society and that they take a share in its government. By making men pay attention to things other than their own affairs, they combat that individual selfishness which is like rust in society."²⁴ These observations are not...