EXPANDING THE SEARCH FOR AMERICA'S MISSING JURY.

• Author: Jolly, Richard Lorren
• Position: Book review

THE MISSING AMERICAN JURY: RESTORING THE FUNDAMENTAL CONSTITUTIONAL ROLE OF THE CRIMINAL, CIVIL, AND GRAND JURIES. By Suja A. Thomas. New York: Cambridge University Press. 2016. Pp. ix, 251. Cloth, $99.99; paper, $34.99.

INTRODUCTION

It may come as a surprise to more than a few readers to learn that America's juries are disappearing. Whether it is the murder of Caylee Anthony, the libel of Hulk Hogan, or the strangling of Michael Brown, media outlets dedicate extensive coverage to criminal, civil, and grand juries alike. (1) But reports of the jury's life are greatly exaggerated. Juries today determine fewer cases than at any other point in the nation's history. For instance, in 1962, the year when most judicial statistics become available, federal juries decided 8.2% of criminal cases and 5.5% of civil cases. (2) Yet by 2015, these numbers dwindled to just 2.04% of criminal cases (3) and a paltry 0.76% of civil cases. (4) Every state court across the country has seen a commensurate decline. (5)

This decline is alarming. Juries allow lay citizens to check judges' work for corruption, state aggrandizement, and application of grounded normative standards. (6) They have thus been described as the "lower judicial bench" in a bicameral judiciary (7) and as "the democratic branch of the judiciary power." (8) Moreover, jury service offers one of the few opportunities for citizens to be directly involved in the administration of law. As Alexander de Tocqueville described, it is "a free school" that "instill[s] some of the habits of the judicial mind into every citizen." (9) Perhaps unsurprisingly then, trial by jury is the only right to appear by name in all three of the nation's founding documents: the Declaration of Independence, the Constitution, and the Bill of Rights. The disappearance of America's juries should thus give us pause and command our scrutiny.

Many authors have attempted to explain the jury's decline. Some focus on the adoption of the Federal Rules of Civil Procedure and Federal Sentencing Guidelines, which, coupled with advancements in evidence preservation, have rendered the truth-finding role of jury trials mostly redundant. (10) Others emphasize the costs and unpredictability of jury trials, observing that the resources and risks attendant to jury trial make it an inefficient form of dispute resolution. (11) Finally, some point to the rise of managerial judges who view their role as to guide parties toward settlement rather than to preside over jury trials. (12)

Professor Suja Thomas (13) offers a novel approach in her new book, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries. She begins by recognizing the jury as a constitutionally mandated institution possessing specific powers and limitations in relation to the executive, legislature, and judiciary. She then explains how these traditional government actors have gradually usurped the jury's unique powers for themselves and so diminished the jury's constitutional import. Juries are vanishing, then, because the other actors have emerged in their stead. As a solution, she proposes recognizing the jury as a "branch"--a coequal to and a significant check on the traditional branches (p. 5)--and offers a doctrinal approach she calls "relational originalism" to assure this position (p. 8).

While The Missing American Jury provides an encompassing look at the jury's decline, it is not complete. In the introduction, Professor Thomas explains her decision to omit arbitration and settlement from the discussion, choosing instead to focus only on "procedures imposed by the government to which parties do not consent or procedures such as plea bargaining to which a party may unwillingly consent" (p. 3). This omission is a rare misstep. The emergence of binding arbitration and private ordering of public adjudication has tracked and contributed to the decline in the civil jury's constitutional esteem. The legislature and the judiciary have removed power from the jury and vested it in private parties' hands. In so doing, they have allowed powerful social and economic actors to sideline the civil jury and have shielded their own behavior from public scrutiny. These developments in private civil procedure are a necessary part of the discussion.

This Review incorporates private procedure into Professor Thomas's explanation for the jury's disappearance. Part I analyzes Professor Thomas's central premise that the jury has fallen in constitutional esteem due to power grabs by the traditional actors. It also considers her proposal to fill the doctrinal void that has allowed this decline. Part II provides a historical overview of the emergence of private procedure and stresses that this development mirrors those power grabs reviewed in the book. Finally, Part III applies Professor Thomas's relational originalism doctrinal approach to private procedure.

1. THE MISSING AMERICAN JURY

   This Review considers Professor Thomas's contributions in the order in which she raises them in The Missing American Jury. First, she explains that the Framers empowered the jury with significant authority in order to check the traditional actors, making it an integral part of the federal structure--essentially a "branch." Next, she explains that the judiciary's failure to treat the jury with institutional respect, combined with the jury's unique characteristics, has allowed the traditional actors to free themselves from the jury's restraints. Finally, she proposes a doctrinal approach called "relational originalism" to help reestablish the balance of power.

   1. Juries as a "Branch"

      The Founders deeply valued juries. The Declaration of Independence is explicit that King George's acts "depriving [the colonists], in many Cases, of the Benefits of Trial by Jury" motivated the revolution. (14) And while the Constitution and Bill of Rights do not speak so plainly, the importance of guaranteed jury trials played an equally central role in shaping those documents. (15) Fierce debate accompanied initial drafts of the Constitution, with several delegates refusing to sign because it lacked jury protections beyond those for crimes. (16) As William Nelson observed, "For Americans after the Revolution, as well as before, the right to trial by jury was probably the most valued of all civil rights." (17)

      Professor Thomas argues that the Founders so valued juries for the same reason they valued separate bodies exercising government authority: independent yet interrelated bodies most effectively balance and check power (pp. 58-62). The virtues of divided authority are extolled throughout the Founders' writings, (18) and the Constitution itself is framed as a delineation of relationships among departments and between federal and state governments. Professor Thomas contends that "[t]he Founders and the ratifiers ... understood that the American jury had an independent role like the executive, the legislature, the judiciary, and the states--specifically to protect against actions by them" (p. 62). She then carefully explains the way the Founders viewed juries in relation to the traditional branches.

      First, juries were considered a check on judicial power (p. 62). The Founders were wary of judges and particularly concerned with the potential for corruption and state bias (pp. 63-64). Thomas Jefferson emphasized this, privileging "the opinion of twelve honest jurymen" over permanent judges, who "are liable to be tempted by bribery [and] misled by favor, by relationship, by a spirit of party, [and] by a devotion to the executive or legislative power." (19) Alexander Hamilton went further to articulate the benefits of the two bodies' interrelation (p. 64). He called a judiciary made up of both judges and juries "a double security ... [that] tends to preserve the purity of both institutions." (20) "By increasing the obstacles to success," he argued, "it discourages attempts to seduce the integrity of either." (21)

      The Founders also used juries to cabin legislative power (p. 64). The writings of Hamilton and Monroe reveal that they viewed the constitutionally established jury trial as an abridgement of legislative prerogative (pp. 64-66). The Founders ensured that the legislature held no power over the jury beyond those expressly stated in the text of the Constitution, so the legislature could not destroy or manipulate the institution. (22) Furthermore, the Founders celebrated the jury as a mechanism to repeal legislation through nullification, as had happened famously in the John Peter Zenger trial (pp. 65-66). Indeed, juries ensured that no legislative act could be enforced without a democratic body of laymen.

      Finally, the Founders trusted juries to curtail executive authority (p. 66). Criminal juries accomplished this through their fact- and law-finding powers. (23) And civil juries ensured that those harmed by executive abuses might find relief. (24) But the most critical way that executive power is limited is through the promise of grand juries, which can halt the executive from bringing criminal charges. (25) James Wilson espoused the benefits of the grand jury, writing: "In the annals of the world, there cannot be found an institution so well fitted for avoiding abuses, which might otherwise arise from malice, from rigour, from negligence, or from partiality, in the prosecution of crimes." (26)

      Professor Thomas concludes that "the constitutional text reveals that the executive, the legislature, the judiciary, the states, the criminal jury, the civil jury, and the grand jury all have powers and limitations as well as interdependences" (p. 56). She argues that because of this constitutional role, the jury is essentially a governmental branch: an institutional body retaining its own authority while balancing power between the others. (27) But despite the similarities between the jury and the traditional branches, the Supreme Court has not...