Opening address.

• Author: Whitehouse, Sheldon
• Position: Symposium: The Federal Rules of Civil Procedure at 75

Thank you very much, Stephen Burbank. It is a great opportunity to join you today at the University of Pennsylvania on the seventy-fifth anniversary of the Federal Rules of Civil Procedure. Every senator wakes up every morning eager to go out and deliver an impassioned speech on the subject of the Federal Rules of Civil Procedure. You laugh, but you are here to listen to a speech on the Federal Rules of Civil Procedure.

I imagine that many law students who arrive here at this famous law school in Philadelphia, the city that hosted our nation's Constitutional Convention, dream of litigating epic constitutional cases before the United States Supreme Court. For the students here, perhaps learning the Federal Rules of Civil Procedure may not be very high on your priority list, but you will find out--as I found out--that command of procedure is essential to a litigator's prowess.

More broadly, the way we fashion procedure is pivotal to the quality of justice our system provides. Supreme Court Justice Abe Fortas said it well when he wrote that, "Procedure is the bone structure of a democratic society." (1) I'm going to ask you to remember two things from this speech. That's the first one: "[procedure is the bone structure of a democratic society." In short, procedure is power.

Today, I want to focus on the way that civil procedure affects the power of an important political institution within our system of self-government--and that is the civil jury.

Let's start, in this historic place, with some history. The earliest tendrils of the jury system appeared in England in the twelfth century. By the fifteenth century, civil juries had blossomed to the point where independent persons gathered together and heard witness testimony brought by opposing counsel. When the earliest American settlers came to this land, they transplanted juries here: 1624 into Virginia, 1628 into Massachusetts, 1677 into New Jersey, and 1682 into Pennsylvania. If you do the math, that makes last year the 330th anniversary of the Pennsylvania civil jury.

Civil juries provided a treasured means of self-government to early Americans as they chafed under colonial rule. Efforts by the English government to deny that right helped foment the American Revolution. When our original Constitution was silent on the civil jury, Americans sounded the alarm and the Seventh Amendment (2) was promptly sent to the states in the Bill of Rights.

Alexander Hamilton described this in The Federalist No. 83, where he stated that:

The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. (3) The civil jury: the very palladium of free government.

Colonial Americans understood, like Sir William Blackstone, that "[e]very new tribunal erected, for the decision of facts, without the intervention of a jury ... is a step towards establishing aristocracy, the most oppressive of absolute governments." (4) The founders intended the civil jury to serve as an institutional check on that power by giving ordinary American people direct control over one vital element of government.

The civil jury is not just a fact-finding appendage of a court. It has an institutional and structural purpose. Alexis de Tocqueville observed that the jury should be understood as a "political institution" and "one form of the sovereignty of the people." (5) Sir William Blackstone explained that trial by jury "preserves in the hands of the people that share, which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens." (6) That's the second line I want you to remember, the civil jury "prevents the encroachments of...