Political decision making by informed juries.

AuthorNelson, William Eugene
PositionThe Civil Jury as a Political Institution

TABLE OF CONTENTS INTRODUCTION I. ENCOURAGING POLITICAL CHOICE BY JURIES II. WHAT KNOWLEDGE DO JURIES NEED TO MAKE POLITICAL CHOICES? CONCLUDING REMARKS INTRODUCTION

When legal scholars think about the political role of juries, they usually focus on jury nullification. For me, the 1761 Massachusetts case of Erving v. Cradock has always been the classic example of nullification in a noncriminal context. (1) The case arose when a Massachusetts shipowner brought a common law writ of trespass against a royal revenue officer who had seized his vessel and obtained its condemnation in a vice admiralty court on a smuggling charge. (2) The five judges on the Massachusetts Superior Court unanimously instructed the jury that the admiralty decree of condemnation was res judicata and a bar to the common law trespass suit, but the jury ignored their instructions and returned a substantial damage verdict for the shipowner. (3) When the judges, as required under Massachusetts practice, declined to set the verdict aside, the practical political effect of the jury verdict was to nullify enforcement of Parliament's Navigation Acts in the Bay Colony. (4) Such jury nullification continues in civil cases today; a more recent example is the refusal of many juries in common law jurisdictions to follow instructions that a plaintiff's contributory negligence is a bar to recovery in an action for negligence.

The political power of juries in both civil and criminal cases (5) goes far beyond mere nullification, however. Legislators and judges affirmatively delegate political power to juries and encourage them to exercise it far more frequently than juries assume such power for themselves in violation of judicially prescribed norms. A central claim in this Article, which I shall address first, is that our legal system wants juries to exercise political power. A more important issue, to which I will turn second--an issue that the system has not fully resolved and thus needs to address--is not whether juries should engage in political choice, but how they should engage in it.

  1. ENCOURAGING POLITICAL CHOICE BY JURIES

    Let me begin with an old and familiar example from the criminal side--the Zenger case. (6) The Zenger case is usually understood as one in which the jury nullified the law given to it by the court and held truth to be a defense to a criminal libel prosecution. (7) But that interpretation of the case is simply wrong. Chief Justice James DeLancey did not instruct the jury that it had to convict Peter Zenger of libel for printing negative statements about the colony's governor. (8) Rather he told the jury that "as [the] facts or words in the information are confessed the only thing that can come before you is whether the words as set forth in the information make a libel. And that is a matter of law, no doubt which you may leave to the court." (9) Note that Chief Justice DeLancey did not direct the jury that it must leave the law to the court. By implication, he agreed with the defense counsel's argument and told the jury that it could, if it wished, leave the law to the court, but that it also had authority to determine the law by itself. (10)

    Chief Justice DeLancey was not alone in colonial America in delegating politically sensitive issues of law to juries. The Massachusetts General Court, in its role as legislature, had done the same more than six decades before Zenger in a 1672 statute. (11) Twenty-five years before the statute's passage, the General Court debated whether discretion would be required in interpreting the provisions of its Code of 1648 and, if so, what entities should exercise that discretion. (12) By a 1649 statute, the General Court provided that when judges and juries in a lower court disagreed on an interpretation of the Code or on any other point of law, the case in which they disagreed would go to the General Court and would be resolved by a majority vote of the two houses sitting together. (13) This 1649 statute provided what we can understand as an overtly political solution--delegation to the legislature--for resolution of an issue of legal uncertainty initially decided by a jury.

    By the 1670s, this solution was no longer a viable one. The crown under the recently restored king, Charles II, was trying to bring its American colonies in general and Massachusetts Bay in particular under tighter control. The colony's leaders recognized that royal authorities could easily take note of political decisions its legislature reached that were contrary to the crown's policies. (14) Accordingly, by statute in 1672, Massachusetts abolished appeals to the General Court in cases of judge-jury disagreement. (15) The statute explicitly gave juries, which delivered only opaque verdicts reached in anonimity behind closed doors, authority to make final and binding determinations of politically sensitive issues that sometimes arose in litigation. (16) The General Court thereby hid much sensitive political decision making from royal authorities who were seeking to transform the Bay Colony's political processes. (17)

    One of the leading cases decided shortly after enactment of the 1672 statute arose out of a suit brought by Edward Randolph, the collector of customs for the crown in the late 1670s and early 1680s, against George Hutchinson, a merchant whom Randolph accused of smuggling. (18) The case was remarkably similar to Eruing v. Cradock discussed above. Randolph was not a popular man in Massachusetts Bay, and not surprisingly, the jury returned a verdict for Hutchinson. (19) Then "[t]he Court sent out the Jury once & Againe with the Case further to Consider of it[.] [A]t their coming in Againe they declared by their foreman they saw no cause to Alter their virdict." (20) By so asking the jury to reconsider its verdict, the court performed its duty of supporting royal authority. By adhering to its verdict, the jury did what the court probably wanted to accomplish, but publicly lacked power to do--undermine royal government and royal enforcement of the customs laws. (21)

    At approximately the same time that Massachusetts acted, Maryland likewise delegated politically sensitive law-finding power to juries. From the 1640s to the late 1680s Maryland suffered recurrent conflict between Catholics and Protestants, which left its legal system fragile (22) and made it important for the province's judges to give the appearance of objectivity and impartiality in their administration of the law: to seem above the fray. (23) One way to give such an appearance was to delegate politically difficult decisions to jurors and put the blame on jurors when the decisions proved unpopular. Thus, in Proprietary v. Backer, a suit arising out of an alleged violation of the Navigation Act, (24) (25) the court "thought it most Convenient to have a Jury of 12 able persons to go upon the meritts of the whole bussiness, and Not that it should be whol[l]y throwne upon the Governor and Councell." (25) As one county court declared in another case, it was useful for judges to give tough political issues to juries and then uphold their verdicts: litigants would understand that adverse judgments were not the judges' "fault for it was Don[e] by A jury." (26)

    Today's legal system continues to delegate politically difficult issues to juries. An example is the inevitably political role that juries play in deciding civil rights suits brought against state and local officials under [section] 1983. (27) When one asks, for example, why the NAACP sought injunctive rather than damage relief in Brown v. Board of Education, (28) which was a [section] 1983 action, (29) the answer is plain. Damage awards--here, for African-Americans who had received inferior educations in segregated schools--would have improved lives by giving compensation; damage awards would have been easier than injunctions to enforce; and the threat of future damage awards would have produced rapid desegregation. But the NAACP lawyers knew for certain that juries would make political judgments in damage cases that would deny them any relief. They accordingly opted to avoid juries by seeking injunctive relief from judges. (30)

    Another example is the delegation of power to juries to determine damage awards in medical malpractice, product liability, and similar sorts of cases. Perhaps juries in such cases can determine damages for medical expenses and loss of wages through simple arithmetic calculations. But calculating damages for lost body parts, pain and suffering, and the like requires recourse to judgments of political morality for which no arithmetically certain answers exist. In the legal community, we understand that legislative efforts to cap the damages which juries can give for such losses constitute an exercise of political judgment. We similarly understand that the decision of the Supreme Court about the application in diversity cases of New York legislation limiting the power of juries to award damages had a political valence...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT