Jason M. Solomon, the Political Puzzle of the Civil Jury

• Citation: Vol. 61 No. 6
• Publication year: 2012

THE POLITICAL PUZZLE OF THE CIVIL JURY

Jason M. Solomon*

ABSTRACT

At the root of many contemporary debates over the civil justice or tort system—debates over punitive damages, preemption, and tort reform more broadly—are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.

The debate over the jury—in both the academic literature and the public domain—tends to focus on how good or bad it is as an adjudicative institution. But its justification has often been based on its value as a political institution.

In this Article, I look at the theory, concepts, and empirical evidence behind four principal justifications for the civil jury as a political institution:

(1) acting as a check on government and corporate power, (2) injecting community norms into the legal system, (3) providing legitimacy for the civil justice system, and (4) fostering political and civic engagement among citizens.

I tentatively conclude that the benefits of the civil jury as a political institution are overstated and provide suggestions for improving the functioning of the jury as a political institution and for further empirical research.

* Associate Professor, William and Mary Law School. Thanks to Beth Burch, Alan Calnan, Steve

Croley, Paul Diller, Dave Fagundes, Brian Fitzpatrick, Dan Markel, Rob Mikos, Michael Pardo, Adam Reinke, participants in faculty colloquia at the Florida State University College of Law, Vanderbilt University Law School, and Southwestern Law School, where I presented an earlier and substantially different iteration of this paper, as well as participants in the University of Michigan Law School’s Legal Theory Workshop. I wish to thank Jeremy Arey, Jordan Bowman, Elizabeth Freeman, Charles Mathes, Ben Reed, and Patrick Schwedler for valuable research assistance, and Ben Keele for valuable library assistance. And special thanks to Daniel Reach, James Spung, and the Emory Law Journal staff for all their work on the piece.

INTRODUCTION 1333

1. CHECKING GOVERNMENTAL AND CORPORATE POWER 1340

   1. Government Power 1340

   2. Corporate Power 1345

   3. Repeat Players 1349

2. LEGITIMACY AND COMPETING CONCEPTIONS OF DEMOCRACY 1353

   1. Normative Legitimacy 1355

      1. Representative Democracy 1356

         1. The Political Ideal(s) 1356

         2. The Epistemic Claim: Information Aggregation 1362

      2. Deliberative Democracy 1363

         1. The Political Ideal 1363

         2. The Epistemic Claim: Deliberation 1367

   2. Sociological Legitimacy 1370

3. FROM LOCALISM TO COMMUNITY 1375

   1. Political Ideal 1376

      1. A Way of Constituting Community 1376

      2. Local Self-Rule and Political Participation 1378

         1. Defining Community Norms 1378

         2. Small-Scale Participation 1381

   2. Epistemic Claim: Local Knowledge 1383

4. BETTER CITIZENS 1387

   1. Voting and Political Participation 1388

   2. Civic Engagement (plus Attention to Public Affairs) 1389

   3. Understanding of Different Views/Empathy 1390

5. IMPLICATIONS AND CONCLUSION 1391

   1. Understanding the Trade-Offs 1392

   2. Improving the Political Institution 1393

   3. Concluding Thoughts 1395

INTRODUCTION

The jury is . . . above all a political institution, and it is from that point of view that it must always be judged.

—Alexis de Tocqueville1

In the last four Supreme Court terms, some of the most important cases involved tort lawsuits, rooted in common law or statute, that resulted in multimillion-dollar verdicts. On the face of it, each of these cases involved very different issues—the First Amendment in Snyder v. Phelps,2 preemption in Wyeth v. Levine,3 punitive damages in Exxon Shipping Co. v. Baker,4 and the standard for class certification in Wal-Mart Stores, Inc. v. Dukes.5 But a common theme ran through each of the cases: suspicion of the civil jury. In three of the four cases, the side arguing that the civil jury could not be trusted won the case, losing the fourth by just two votes.

The precise basis for the concern about the civil jury varied in each case. In Snyder, it was a concern that the jury could use a malleable tort standard of “outrageousness” to punish disfavored speech.6 In Wyeth, it was that the jury would unfairly second-guess the Food and Drug Adminstration’s judgment on what warnings should go on a particular drug.7 In Exxon Shipping, it was that the civil jury’s damage awards were unpredictable, leading to concerns about

1. 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 272 (J.P. Mayer ed., George Lawrence trans.,

   Anchor Books 1969) (1835).

2. 131 S. Ct. 1207, 1216–17 (2011) (holding that the First Amendment protected the free speech of church members who picketed near the funeral of a military service member).

3. 555 U.S. 555, 581 (2009) (holding that a state failure-to-warn claim was not preempted by the FDA’s approval of the warning).

4. 554 U.S. 471, 515 (2008) (holding that punitive damages were excessive and could not exceed a 1:1 ratio with compensatory damages).

5. 131 S. Ct. 2541, 2551 (2011) (holding that class certification was not warranted under Federal Rule of Civil Procedure 23(a)’s commonality requirement). This lawsuit did not actually result in a multimillion-dollar verdict because it never made it to trial, but it was the fear of such a verdict that drove the dynamics around class certification.

6. 131 S. Ct. at 1219 (noting that the outrageousness standard is “highly malleable,” and a jury is likely to be biased based on “jurors’ tastes or views,” making the jury dangerous in that it could become “an instrument for the suppression of . . . expression” (alteration in original) (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 510 (1984))).

7. 555 U.S. at 563–64 (discussing the defendant’s argument that a “lay jury’s decision” should not trump “the expert judgment of the FDA”); id. at 626 (Alito, J., dissenting) (“By their very nature, juries are ill

   equipped to perform the FDA’s cost-benefit-balancing function. . . . [J]uries tend to focus on the risk of a particular product’s design or warning label that arguably contributed to a particular plaintiff’s injury, not on the overall benefits of that design or label . . . .”).

   
   

   fairness to and consistency across defendants.8 In Dukes, it was the fear of massive jury verdicts in class actions that would force corporate defendants like Wal-Mart to settle, regardless of the merits of the case.9

   
   

   The public debate and academic literature on the civil jury tend to focus on how well it performs as an adjudicative institution.10 Can it handle complex cases? Is it biased against defendants with deep pockets? The task for the defenders of the jury, then, has been simply to show that the jury does about as

   well as (or not much different than) the judge in adjudicating, and in that, they have largely succeeded.11

   
   

   But the justification for the civil jury has often been about its benefits as a political institution. By “political institution,” I mean the jury’s role in our democracy, other than deciding cases. Leading constitutional law scholar Akhil Amar, for example, calls the jury the idea “more central” than any other to “America’s distinctive regime of government of the people, by the people, and

   for the people.”12 For Amar, the jury is the institution that best instantiates

   
   

8. 554 U.S. at 472–73 (“The real problem is the stark unpredictability of punitive awards. Courts are concerned with fairness as consistency, and the available data suggest that the spread between high and low individual awards is unacceptable. The spread in state civil trials is great, and the outlier cases subject defendants to punitive damages that dwarf the corresponding compensatories. The distribution of judge- assessed awards is narrower, but still remarkable.”).

9. See Brief of the Chamber of Commerce of the United States of America as Amicus Curiae in Support

   of Petitioner at 16, Dukes, 131 S. Ct. 2541 (No. 10-277) (“It has long been recognized that loose certification standards have serious repercussions for American business because they present a risk of gargantuan verdicts . . . .”).

10. See, e.g., VALERIE P. HANS & NEIL VIDMAR, JUDGING THE JURY 20 (1986); Robert E. Litan,

    Introduction to VERDICT: ASSESSING THE CIVIL JURY SYSTEM 1, 2 (Robert E. Litan ed., 1993); Symposium, Is the Jury Competent?, LAW & CONTEMP. PROBS., Autumn 1989, at 1; Symposium, The Role of the Jury in Civil Dispute Resolution, 1990 U. CHI. LEGAL F. 1.

11. Valerie P. Hans & Theodore Eisenberg, The Predictability of Juries, 60 DEPAUL L. REV. 375, 379

    (2011) (“[W]hen scholars have compared the decision making of juries, judges, and other decision makers, the overall patterns appear more similar than different.”); Valerie P. Hans & Neil Vidmar, The Verdict on Juries, 91 JUDICATURE 226, 227 (2008) (“[J]udges agree with jury verdicts in most cases.”); Jennifer K. Robbennolt, Evaluating Juries by Comparison to Judges: A Benchmark for Judging?, 32 FLA. ST. U. L. REV. 469, 509 (2005) (concluding that research shows “striking similarities in the decisionmaking of judges and jurors”).

12. Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. DAVIS L. REV. 1169, 1169

    (1995). Amar explores this claim in greatest detail in his book, AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION ch. 5 (1998). Amar is clear both that his claim applies to juries in the civil and criminal contexts, see Amar, supra, at 1170–71, 1191–92, and that, to the extent the jury today does not have the central role envisioned by both the Founders and the architects of Reconstruction, that state of affairs ought be changed, id. at 1191–94.

    popular sovereignty, which he views as essential to our republican form of government.13

    
    

    Despite such claims, there has been little focus on how well the civil jury actually performs the political functions that are ascribed to it. To be sure, a jury is always acting as both an adjudicative and a political institution, and these functions cannot be so neatly separated...