Restoring the Civil Jury in a World Without Trials

• Publication year: 2021
• Citation: Vol. 94

94 Nebraska L. Rev. 862. Restoring the Civil Jury in a World Without Trials

Restoring the Civil Jury in a World Without Trials

Dmitry Bam(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 863

II. Judicial Elections and the Impartiality Problem ....... 868
A. A (Brief) History of Judicial Elections .............. 868
B. Evidence of Bias .................................. 871
1. Keeping the Contributors Happy ............... 871
2. Keeping the Electorate Happy ................. 876
3. Perception of Bias ............................. 879
C. Failed Solutions ................................... 880
1. Eliminating Elections .......................... 881
2. Election Reform ............................... 868
3. Recusal ........................................ 887
a. Self-Recusal Procedure Is Inadequate ....... 888
b. Every Judge Is Potentially Biased .......... 892

III. An Originalist Solution: The Jury as a Check on Judicial Bias .......................................... 893
A. The Founders' Fear of Judicial Bias ............... 893
B. What: The Jury Solution .......................... 895
C. Why: The Advantages of the Jury .................. 898
D. How: Giving Juries the Power to Act as a Check . . . 902

IV. Resurrecting the Jury ................................. 904
A. The Decline of the Jury ........................... 904
B. A Twenty-First-Century Jury: The Hybrid Judicial Panel ............................................. 908
C. The Best of Both Worlds: Check on the Jury ....... 911

V. Conclusion ............................................ 914

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I. INTRODUCTION

Elected judges are biased. Biased in favor of campaign contributors, in-state litigants, and parties (and causes) popular with the state's electorate. Not every judge is biased, of course, and certainly not in every case, but often enough to make systemic judicial bias one of the biggest threats to the legitimacy of the American justice system and the rule of law.(fn1) Despite its growing magnitude,(fn2) the problem has proven intractable. It is not for lack of trying; proponents of judicial impartiality(fn3) have long recognized these bias concerns and have struggled to discover solutions.

This Article offers what is at once a novel and an originalist approach by reimagining an institution with a rich historical pedigree and one that the Founders believed should (and would) redress judicial bias in civil litigation: the civil trial jury. But the civil jury as we have come to know it is powerless and largely obsolete because, in modern civil litigation, judges alone decide most cases-at least the ones that don't settle-long before they reach the jury, and sometimes, as with post-verdict judgment as a matter of law or remittitur of damages, even after the jury has acted. Their tools of choice are the motion to dismiss, the motion for summary judgment, and the motion for judgment as a matter of law. These procedural mechanisms, which did not exist at common law or at the time of the founding, have made civil jury trials exceedingly rare. Pretrial disputes and motion practice are the most important phases of modern litigation.(fn4) I argue that the people themselves, serving alongside elected judges on what I call Hybrid Judicial Panels (or Hybrid Panels), can act as a direct check on biased elected judges. These Panels would consist of a (professional)

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judge and a small number of jurors (or lay judges),(fn5) and would decide determinative motions that are now decided by judges alone.(fn6) The judge and the jurors would work together to decide these dispositive motions, most importantly the motion for summary judgment, removing a biased judge's opportunity to rule in favor of a campaign contributor or against an unpopular litigant on her own.

The concerns that this Article identifies are hardly new. For many years, relying on a combination of anecdotal evidence and common sense, critics of judicial elections have suspected that elected judges may be biased.(fn7) But for much of American history, empirical evidence unequivocally proving the existence of such bias was lacking. In recent years, that has changed. We now have plenty of data, in both the civil and the criminal contexts, showing that elected judges are biased in favor of those interests that helped them win their previous election(s) and those that can help them win their future ones.

But if concerns about election-related judicial bias are nothing new, why haven't we solved them? Scores of articles have been written discussing these problems, with one scholar even suggesting that the topic of judicial selection is the most written-about topic in all of law.(fn8) The difficulty lies in the fact that if we accept the proposition

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that elected judges are biased, then we must answer the obvious follow-up question: Who will stop them? So far, that question has gone unanswered.

The most obvious solution-doing away with judicial elections altogether-is also the most untenable. Despite all their warts, judicial elections are supported by an overwhelming majority of the public.(fn9)Similarly unrealistic is the prospect of electoral reform specifically tailored for judicial elections. Scholars have proposed a number of such solutions, including public financing of judicial elections, contribution and expenditure caps, and close monitoring and regulation of judicial campaign conduct. But recent Supreme Court decisions have made it clear that judicial elections largely play by the same First Amendment rules as all other elections.(fn10) And those rules favor freedom for potential litigants (and their lawyers) to give money to judicial candidates,(fn11) to spend money on judicial candidates,(fn12) and to allow judicial candidates to say what they want to say on the campaign trail.(fn13) In other words, the very factors that are most likely to lead to judicial bias are the ones that, today, receive the greatest First Amendment protection. Eliminating the corrupting influence of money from judicial elections is not only unlikely to gain political traction, but any efforts to do so are almost certainly unconstitutional under current Supreme Court doctrine.

As a result, states deal with election-related judicial bias the same way they deal with all other types of judicial bias: by requiring the biased judge to recuse herself from the case. Some scholars have indeed touted recusal as the best solution to the biased judge problem.(fn14)

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Judges, too, have hinted that erecting more stringent recusal standards can alleviate election-related judicial bias.(fn15) The focus on recusal also dominates the judicial ethics rules. The Model ABA Code of Judicial Conduct, as well as the ethics codes in all fifty states, requires judges to step aside not only when they are actually biased, but also when their impartiality could reasonably be questioned.(fn16) On paper, at least, this strict standard requires that every biased judge, or even one who appears to be biased, be replaced with an impartial colleague. And if recusal worked as intended, it would completely obviate the concerns raised by this Article.

But recusal does not work for election-related judicial bias. One reason may be that judges typically decide their own recusal motions and have a disincentive to recuse precisely when recusal is most needed.(fn17) A judge who truly feels a debt of gratitude towards a former contributor, or one who hopes to turn a current litigant into a future contributor, is also the judge least likely to step aside.(fn18) But more importantly some judge-a judge-must hear the case, and every elected judge must worry about his or her electoral prospects. In other words, while recusal is theoretically a workable solution to individualized judicial bias, recusal fails to address the systemic problem of election-related judicial bias.(fn19)

This Article proceeds in three Parts. Part II sets out the problem. After briefly discussing the history and evolution of judicial elec-

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tions,(fn20) Part II highlights the empirical evidence demonstrating that the judicial bias concern is both real and serious. That evidence overwhelmingly shows that elected judges rule in favor of their contributors, in-state litigants, and the perceived political preferences of the electorate, while routinely ruling against out-of-state parties and unpopular litigants and causes. Part II concludes by discussing the failed efforts to solve the bias problem.

Part III examines the role that the jury could play, and was intended to play, in checking biased judges. I show that at the time of the founding, the jury was the primary institution entrusted with ensuring judicial impartiality and independence. Jefferson, Madison, Hamilton, and a long line of their Federalist supporters and Anti-Federalist opponents, all agreed about the importance of the jury and the jury's central role in protecting constitutional guarantees against unscrupulous judges. The jury, more than any other institution, was to protect the people from judicial bias and corruption. Part III also offers some reasons for why the jury was (and continues to be) the perfect institution for such a role, and how the jury was able to fulfill that function at the time of the founding.

In Part IV, I argue that the jury can no longer serve that bias-checking role.(fn21) At the time...