State farm and punitive damages: call the jury back.

• Author: White, Jeffrey R.

INTRODUCTION

The jury sits at the center of our democratic republic, of our constitutional system of checks and balances, and of the guarantees of liberty set out in our Bill of Rights. If this proposition seems remarkable, it is because Americans' right to trial by jury in civil cases has been reduced to a shadow of the powerful voice of the people that the Founding Fathers had in mind. Voices as different as Justice Hugo Black and Chief Justice William Rehnquist have warned that the civil jury has suffered a "gradual process of judicial erosion." (1)

Nowhere does the civil jury speak louder than when it awards punitive damages against a defendant who has violated our common understanding of acceptable behavior. The jury verdict speaks as the conscience of the community. Indeed, the doctrine of punitive damages is closely intertwined with our constitutional right to trial by jury.

1. JURY AWARDS OF PUNITIVE DAMAGES AS AN EXERCISE IN DEMOCRACY

   1. Jurors, Heroes of the Common Man

      The history of the jury has been filled with "violence and passion." (2) The knights who confronted King John at Runnymeade, it is believed, demanded at sword-point the right to trial by a jury of their peers. (3) In the centuries that followed, the jury became a tool of the Crown as the king fought to extend his authority over the nobles and the church. (4)

      The 17th and 18th Centuries, however, saw the jury on occasion speak out, the voice of the people raised up against oppression. This was "the heroic age of the English jury" when "trial by jury emerged as the principal defense of English liberties." (5) Edward Bushel and fellow jurors refused to convict Quaker William Penn in 1670, defying a judge who threatened, fined and jailed them without food or water. They were hailed as heroes, forcing Parliament at last to prohibit judges from punishing juries who returned a "wrong" verdict. (6) The jury's acquittal of seven Anglican bishops accused of seditious libel in 1688 was cheered so loudly in the streets that the judge could not be heard in his own courtroom and led to the passage of the English Bill of Rights. (7) The jury also spoke out with the voice of the people in civil cases. The most remarkable--one that was fresh in the minds of the drafters of the Constitution--was a lawsuit brought by John Wilkes.

      Wilkes was a colorful populist member of Parliament, a protege of opposition leader William Penn. His campaign for electoral reform made him a hero to the disenfranchised working and lower class crowds of London. His defense of the rights of the American colonists made him immensely popular in America as well. (8) His biting criticism of the government, however, won him no friends in the administration. Wilkes' criticism of the Prime Minister, published anonymously in issue No. 45 of The North Briton finally provoked Secretary of State Lord Halifax in 1762 to issue a blatantly illegal general warrant to round up the usual suspects. Forty-nine suspected authors, printers and publishers were caught in the dragnet. (9) Wilkes and the others fought back in court. The ensuing controversy was the Watergate of its time.

      The jury awarded Wilkes 1,000 pounds; (10) and another jury returned a verdict of 300 pounds in favor of Huckle, his printer. (11) The Crown settled many of the lawsuits brought by other victims of the scandal. By the time all the judgments were satisfied, the government had paid out an estimated 100,000 pounds. (12) The scene outside the court when the verdict was announced was jubilant. Some in the crowd confronted the jurors, demanding to know why they had not awarded even more. The Crown, of course, had a different view of the matter. The defense moved to reduce the verdict, arguing that the award greatly exceeded the actual damage to Wilkes.

      The Lord Chief Justice Pratt responded: "[A] jury shall have it in their power to give damages for more than the injury received as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself." (13) Thus the remedy of punitive damages was established at common law. (14) As to the appropriate amount, Chief Justice Pratt explained, "it is very dangerous for the Judges to intermeddle in damages for torts; it must be a glaring case indeed of outrageous damages in a tort, and which all mankind at first blush must think so, to induce a court to grant a new trial for excessive damages." (15) At its inception, the doctrine of punitive damages was rooted in the common law tradition which accorded broad discretion to the jury in the assessment of damages. (16)

      Across the Atlantic, the colonists followed Wilkes's running battle with the British government with intense interest. (17) The American press devoted so much attention to his trials, tribulations and speeches that "one may go to almost any issue of any newspaper between 1763-1775 and read of John Wilkes." (18) Judge Pratt's decision was widely acclaimed in newspaper accounts and pamphlets appearing throughout the colonies, even before the official case reports were published. (19) Historian Pauline Maier has written that, "between 1768 and 1770 no English political figure evoked more enthusiasm in America than the radical John Wilkes." (20)

      [T]he cry of 'Wilkes and Liberty' echoed loudly across the Atlantic Ocean as wide publicity was given to every step of Wilkes's public career in the colonial press ... The reaction in America took on significant proportions. Colonials tended to identify their cause with that of Wilkes. They saw him as a popular hero and a martyr to the struggle for liberty.... They named towns, counties, and even children in his honour. (21) Colonial assemblies even sent campaign donations to Wilkes. (22) "Treatises extolling the jury flooded the market" in America as well as England, celebrating the jury "as a bulwark of liberty, as a means of preventing oppression by the Crown." (23) Wilkes v. Wood "was probably the most famous case in late eighteenth century America." (24)

   2. The Jury in America

      The jury, a district judge has written in a spirited defense, "entered out national life as an institutional hero." (25) The American colonists relied on the jury to resist royal oppression. Colonial governors used criminal prosecutions and civil forfeitures to enforce the hated Stamp Act and other unpopular tax laws. Colonists successfully appealed to local juries, not only to acquit them of the taxes, but even to award damages against officials for having the temerity to try to collect them. (26) England responded by removing many cases to jury-free vice-admiralty courts, where cases were decided by judges beholden to the Crown. (27) The colonists also complained against appellate review by the Privy Council in London, which claimed the authority to overturn verdicts of colonial juries and judgments of colonial courts. (28) Repeated interference with the colonists' right to jury trial was "one of the important grievances leading to the break with England." (29) Dean Roscoe Pound declared: "The fight over jury rights was, in reality, the fight for American independence." (30)

      After independence, many new Americans were understandably worried that oppression by the Crown would be replaced with oppression by the new national government. Punitive damages, exemplified in the Wilkes case, represented power in the hands of the people to punish and deter those officials who exceeded the law. As Professor Akil Amar explains, tort actions against overreaching police and government officials were seen as the primary enforcement mechanism for individual rights. (31) It was the colonists' desire to preserve that authority which gave impetus to the adoption of the Seventh Amendment, and thus to ratification of the Constitution itself. (32)

      When the Constitutional Convention delegates emerged from their closeted deliberations in Philadelphia, they failed to include a Bill of Rights with the right to trial by jury in civil cases. That omission very nearly doomed ratification of the entire Constitution. (33) Fear that civil cases would be put in the hands of federal judges led to widespread demand for an explicit guarantee. (34) The Anti-federalists rejected the Federalist argument that Congress would protect the rights of the people. Common people could depend only on themselves, sitting as jurors. (35) The Wilkes verdict was cited in the ratification debates in support of the need for constitutional protection of the civil jury. (36) Ultimately, as Justice Story recounts, the Federalists' commitment to adopt a Bill of Rights, including jury trials in civil cases, won support for the new constitution. (37) The opinion of the Lord Chief Justice in Wilkes v. Wood "profoundly influenced" the drafters of the Bill of Rights. (38)

      American courts quickly adopted the doctrine of punitive damages. (39) Juries were typically instructed "not to estimate the damage by any particular proof of suffering or actual loss; but to give damages for example's sake, to prevent such offenses in [the] future." (40) The remedy also took on a distinctively American tone, punishing oppression by those in positions of authority against the weak and powerless. (41) With the industrial revolution and the growth of corporations as the dominant organizing form for the economy, punitive damages against corporations became an important means for ordinary Americans to send a message to economic power that certain misconduct is unacceptable. (42)

      Early juries exercised extraordinary power. They could be called upon to decide issues of law as well as fact. (43) They might recall witnesses or ask additional questions of a witness, even after deliberations had begun. (44) Most importantly, trial by jury was not seen as a mere procedural device. The jury was an important political institution for self-government. (45) The Seventh Amendment reflected the founders'...