Restoring the civil jury's role in the structure of our government.

Author:Whitehouse, Sheldon
Position:The Civil Jury as a Political Institution

TABLE OF CONTENTS INTRODUCTION I. THE HISTORY OF THE CIVIL JURY AS AN ELEMENT OF THE STRUCTURE OF AMERICAN GOVERNMENT A. Early English History. B. Pre-Revolutionary American History C. The Constitution and Bill of Rights D. Post-Ratification and Reconstruction History II. THE UNDERMINING OF THE CIVIL JURY'S STRUCTURAL ROLE IN AMERICAN GOVERNMENT AND THE BENEFITS TO CORPORATIONS A. Corporate Victories in the Courts B. Corporate Victories and the Undermining of the Civil Jury Right C. Arbitration and Privatized Justice D. Pleading Decisions and Lost Access to the Facts E. Class Actions and Economic Barriers to Justice F. Damage Caps and Juries' Lost Discretion III. THE CONTINUING IMPORTANCE OF THE CIVIL JURY AS A POLITICAL INSTITUTION A. The Prevention of Judicial Autocracy B. The Sovereignty of the People IV. RESTORING THE CIVIL JURY'S STRUCTURAL ROLE IN AMERICAN GOVERNMENT A. The Role of the Courts 1. Incorporation of the Seventh Amendment 2. Affirmative Protections for the Civil Jury 3. Preventing "Chilling" of the Civil Jury Right 4. Rules to Prevent Infringement of the Civil Jury Right B. The Role of Congress 1. Judicial Nominations and the Civil Jury Right 2. Legislation to Protect the Civil Jury Right CONCLUSION INTRODUCTION

Every day, thousands of Americans receive summonses to serve on civil juries in state and federal courts. (1) These summonses present a remarkable invitation to participate in the exercise of government power. If selected for service, these Americans will adjudicate factual disputes among fellow citizens. In so doing, they will perform a function of long historical pedigree as part of a political institution that protects our liberty, and in Alexis de Tocqueville's words, they will exercise "one mode of popular sovereignty." (2)

The civil jury is a structural element of our government and is best understood in the context of our larger constitutional system. As a general matter, the seven articles of the Constitution establish the structure of government, (3) and the Bill of Rights protects individual rights. (4) There are exceptions to this general rule. Elements of the original Constitution protect individual rights (5) and provisions in the Bill of Rights perform structural functions. (6) Other provisions both serve a structural function and protect individual rights. (7) The Fourth Amendment, for example, interweaves the substance of the right against unreasonable searches and seizures with a structural provision that requires the executive branch to secure search warrants from the federal courts. (8)

The Seventh Amendment likewise serves a structural purpose and protects individual rights. It preserves the individual right to trial by jury in suits "at common law," accompanied by a structural allocation of the authority to decide facts without reexamination. (9)

This allocation of authority to the civil jury confers its political importance. Colonial Americans understood 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." (10) The Founders intended the civil jury to serve as an institutional check on that power by giving ordinary American people direct control over one element of government. (11)

This Article will proceed in four parts. First, it will demonstrate the historical understanding of the civil jury as a political institution, from the pre-revolutionary period, through the drafting and ratification of the Constitution and Bill of Rights, and beyond. Second, it will describe the recent corporate attacks on the civil jury and how a series of Supreme Court decisions have prioritized corporate interests over the protection of the civil jury. Third, it will explain the importance of continuing to protect the civil jury as a political institution within our system of government. Finally, it will propose some practical steps for achieving this goal.


    1. Early English History

      Elements of the jury system appeared in England in the twelfth century when "Henry II introduced the principle that instead of the judicial combat [the tenant] might put himself upon the grand assize, a forerunner of jury trial." (12) By the fifteenth century, civil juries of independent persons heard witness testimony brought by opposing counsels. (13) This now-familiar system "avoid[ed] the doubtful outcome of battle," (14) in part because unbiased jurors were able to judge the reliability of witnesses brought before them. (15)

      To English legal scholars, such as Sir William Blackstone, the "trial by jury" was the "glory of the English Law." (16) Blackstone urged his readers to "guard with the most jealous circumspection against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretenses, may in time imperceptibly undermine this best preservative of English liberty." (17) He explained, in words that should ring true still today:

      [T]he most powerful individual in the state will be cautious of committing any flagrant invasion of another's right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once the fact is ascertained, the law must of course redress it. This therefore 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. (18) A few elements of this analysis bear emphasis. First, Blackstone focuses on the relative power of the injured party and the injuring party and stresses the jury's political function as a venue in which all citizens stand equal before the law. (19) Second, Blackstone reminds his reader that the power exercised by the jury properly belongs to the people as a whole, not to a wealthy few, and that the jury is thus a fundamentally democratic institution. (20) Third, Blackstone's comments are directed at the jury's resolution of disputes between individuals: in other words, civil suits. (21) Fourth, Blackstone implies that the power of the jury depends on the inability of powerful individuals to tamper with it, stressing that the jurors are "indifferent men" who are insulated from interference in that they are "not appointed till the hour of trial." (22) Finally, unlike many constitutional provisions designed to protect the individual against abuse of the power of government, the civil jury defends the individual against "the more powerful and wealthy citizens." (23)

    2. Pre-Revolutionary American History

      America's earliest settlers established trial by jury in the new colonies. As Stephan Landsman has documented:

      The 1606 charter given by James I to the Virginia Company has been read as incorporating the right to jury trial. By 1624 juries were available for all civil and criminal cases in Virginia. The Massachusetts Bay Colony followed a similar pattern by introducing jury trials in 1628 and codifying jury procedure in the Massachusetts Body of Liberties in 1641. The Colony of West New Jersey followed suit in 1677, as did Pennsylvania under William Penn's proprietorship in 1682. Eventually, all the colonies embraced trial by jury. (24) These juries served a political function by ensuring local community control over criminal sanctions and the redress of grievances. (25) As Akhil Amar has noted, few colonists ever had the opportunity to vote for the imperial officers who held governing authority, whether "King George, his ministry, the English Privy Council and its Board of Trade, Parliament, colonial governors, [or] colonial judiciaries." (26) In contrast, "ordinary colonists could and did vote for colonial assemblies and vote in colonial juries." (27) This "best preservative of English liberty" (28) sank deep roots into American soil.

      By the late eighteenth century, Americans used their civil jury powers "to assail imperial policies and shield patriot practices," including by finding against the British in customs cases. (29) This drove British authorities to "divert as much judicial business as possible away from American juries." (30) Such denials of jury access "featured] prominently in formal colonial complaints in the 1760s and 1770s." (31) When Parliament passed the Stamp Act, which sought to collect numerous duties from the colonies, it also restricted jury access by authorizing enforcement "in any Court of Record, or in any Court of Admiralty ... or in any Court of Vice Admiralty ... at the Election of the Informer or Prosecutor." (32) Colonists in the Stamp Act Congress of 1765 responded by declaring that "trial by jury is the inherent and invaluable right of every British subject in these colonies." (33) Similar protests were made throughout the mid-1770s even after the Stamp Act was repealed. "[T]he oppressive behavior of British authorities in enforcing the so-called Intolerable Acts and similar measures" was answered by colonial congresses that "trumpeted the right to trial by jury in both civil and criminal cases and excoriated royal administrators for tampering with that right." (34)

      Colonial complaints about deprivation of access to the jury moved the colonies toward revolution. The Second Continental Congress, for example, complained that colonists were deprived "of the accustomed and inestimable privilege of trial by jury, in cases affecting both life and property." (35) Fundamentally, the colonists complained about their lack of self-government: "But why should we enumerate our injuries in detail?" they asked, because "[b]y one statute it is declared, that parliament can of right make laws to bind us in all cases whatsoever." (36) But the focus on the jury was intense. The Virginia Declaration of Rights, for example, demanded: "That in controversies...

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