Second-order diversity revisited.

Author:Abramson, Jeffrey
Position:III. The Positive Case for Second-Order Diversity through Conclusion, with footnotes, p. 772-804 - Response to Heather Gerken, Harvard Law Review, vol. 108, p. 1099, 2005 - The Civil Jury as a Political Institution

    In the previous section, we reviewed arguments for diversity's contribution to jury deliberation. Diversity (1) creates a normative set of expectations that prod jurors individually to process the evidence with more care, (2) widens the information and perspectives exchanged, (3) generates public confidence in verdicts, and (4) supports the democratic and moral legitimacy of jury decisions. Gerken is a skeptic about these benefits. But her positive case on behalf of second-order diversity can stand independently of her critique of first-order diversity. It may be, for instance, that second-order diversity among juries brings democratic benefits above and beyond those I have suggested we get by pursuing cross-sectional representation on particular juries. I proceed in this section to consider four arguments on behalf of second-order diversity.

    1. Benefits to Jurors

      Gerken's defense starts by locating benefits to the jurors themselves--their power, participatory opportunities, education, civic sensibilities, and the like. (170) These benefits are said to accrue to jurors best when they take their turn at the head of the table, participating on juries as part of the controlling group. (171)

      The benefits flowing to jurors are important to our democracy and it took long, hard-fought battles to overcome discriminatory obstacles to establish an equal opportunity to serve as jurors. (172) Today, jury duty is "one of the basic rituals by which Americans confirm their participation in society." (173) What was at stake in those movements, however, was not just the "liberty" interest of citizens to be jurors; it was the importance of equality in bearing the obligations, and responsibilities of citizenship. By joining with other scholars to accomplish a paradigm shift in jury studies--from the traditional focus on the legal rights of litigants to a new concern for the political rights of jurors themselves (174)--Gerken leaves behind the peculiar ways in which jury duty is a surviving example of what Jeremy Waldron calls "responsibility-rights." (175)

      Consider, for instance, a design feature of jury selection that Gerken does not especially concentrate on: the use of a draft. (176) Citizens have voting rights, but they have no responsibility to exercise them. Jury enfranchisement is different--it is an involuntary obligation, a duty we impose on all eligible citizens. The military draft once spoke not to the "liberty" of citizens but rather to their obligations and to the dignity and the respect we should accord those in service. Likewise, the obligatory nature of jury duty speaks to the importance of imbuing in jurors an understanding that it is not their own rights but those of others they are responsible to defend. (177) This formulation may not be quite correct--it is more the dignity of justly defending the rights of others by exercising and not shirking the equal liberty to be a juror.

      When so many of us seek ways to avoid jury duty, the dignity of the office suffers. (178) I suspect that Gerken's rather full-throttled defense of the jury as a political institution, if widely accepted, would further erode any collective sense of moral responsibility for the well-being of the office. If Gerken is right that second-order diversity is all about rotating power and control among competing groups, then the right becomes untethered to any moral conception of why we trust ordinary persons to use that power responsibly.

      In the civil jury context, striking a balance between the rights and responsibilities of jury service has been a politically fraught task. As Laura Gaston Dooley has shown, the rise of judicial controls over civil juries, such as directed verdicts, (179) judgments notwithstanding the verdict, (180) and judgments as a matter of law (181) was motivated by radical mistrust of the ability of ordinary persons to discharge their moral responsibilities. (182) Criminal juries enjoy greater protection against these forms of judicial reversals, largely because the Double Jeopardy Clause makes any not guilty verdict final. (183) But courts may reverse civil verdicts, or reduce damage awards, whether they favor plaintiffs or defendants. Given the long history of judicial mistrust of civil juries that Dooley documents, we should be careful with describing jury duty in the sort of political terms that Gerken tends to use. Gerken's core argument--that variation in jury verdicts should be valued on account of, and not despite, the jury compositional differences driving at least some variations in verdicts (184)--could provide cover for further judicial backlash against civil juries.

    2. The Advantages of Aggregation

      As Gerken readily concedes, the isolated experiences of a few persons on a single jury--a body never to be convened again--are too fleeting and invisible to diffuse power in society or turn the tables on the majority. (185) In the aggregate, however, minorities come to have a say on "what the 'law' is--or ought to be" (186)--even when, as a matter of legislative representation, "they lack the power to 'author' the law itself." (187) This is because this very thing--"the law"--is the editorial product that "emerges from the collective decisions of many juries." (188) Standing back, we get "a richer picture of the views of the community as a whole," by comparing the verdicts rendered on occasion by minority-controlled juries with the decisions from majority-controlled juries. (189)

      But it is not apparent where we go to get this "kaleidoscopic" or birds-eye view of the range or pattern made by discrete jury decisions. Gerken speaks of the way the jury system gives the "minority a chance to call attention to themselves and their views" (190) and to "engage in the type of agenda setting that is usually difficult for those outside the political mainstream to achieve." (191) Putting aside whether it is a good thing for jurors "to call attention to themselves and their views," (192) it is difficult to understand the mechanism Gerken has in mind that would publicize all these various jury data points. She frequently uses the term "visibility" to describe how minority control over one jury publicizes a dissenting viewpoint--usually lost in the shadows--and makes it available for subsequent juries to consider. (193) Nonetheless, subsequent jurors may know little about previous juries, both what they decided and who was on those juries.

      Typically, we do not keep track of a jury's group composition and we rarely are privy to whether groups split on first ballots or straw votes. (194) In short, Gerken assumes an unavailable information source and imagines what we do not have--an ongoing public conversation about what different juries, composed in different ways, decide. (195) As Gerken acknowledges, "the form a jury decision takes limits its effectiveness in promoting visibility." (196) In practice, "members of the community may not know enough about the case to understand what the verdict signifie[d] to those who rendered it." (197)

      Throughout her article, Gerken contrasts the high visibility achieved by election results with the lesser visibility of jury verdicts. Even she is lukewarm about whether second-order diversity can deliver the sort of democratic benefits that depend on letting minorities use the jury system to publicize their different norms and perspectives.

    3. Bargaining in the Shadow of Jury Verdicts

      Gerken's strongest argument for why jury verdicts matter in the aggregate is that decision makers--be they prosecutors considering a plea bargain or civil plaintiffs deciding whether (or where) to exercise their rights to jury trial--make these decisions partly on the basis of what juries have previously decided in the small number of cases that go to trial. (198) But as I have previously argued, and as Gerken acknowledges, both first- and second-order diversity are relevant to these decisions. (199) Plaintiffs or prosecutors may be sufficiently risk averse so that what second-order diversity makes possible--drawing an outlier jury--affects how they make choices. In that circumstance, Gerken would be right that second-order diversity permits groups that dominate only a few juries to exert more general influence on the strategic choices of plaintiffs and prosecutors. If these actors are less risk averse, though, they may be influenced mostly by what first-order diversity tells them "the law" is, as likely applied by a jury that mirrors a cross-section of the community. (200)

    4. Cross-Over Participatory Experiences as a Form of Civic Education

      Among second-order diversity's chief benefits are the "eye-opening" lessons that members of majority groups are said to draw when the tables are turned on them and they must participate as part of a numerical minority for a change. (201) Gerken is optimistic that, although this is not an experience that majorities would choose for themselves, they will come away from jury duty with greater appreciation for what it is like to be a minority, with "reduce [d] complacency" about the costs majority decisions impose on minorities, and with greater willingness to see matters from the minority point of view. (202)

      In part, this is an odd argument for Gerken to make because she is at pains to stress that she is mostly describing our current practices, which already include majorities sometimes serving on predominantly minority juries. But if majority members are already receiving the "sensitivity training" that turning the tables on them is said to provide, (203) then why, in Gerken's own judgment, are they so unwilling to listen to minority arguments when they return to numerical superiority on other juries? (204) Presumably, these are other individuals--not those who got an egalitarian education from jury duty. But then the benefits seem scattered and coincidental.

      At any rate, it is an open question whether majorities draw or...

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