There’s an enlightening and engaging new article out from UC Berkeley School of Law’s Civil Justice Research Initiative, called The Civil Jury: Reviving an American Institution. Written by renowned jury and civil justice experts Valerie P. Hans of Cornell Law School, Bob Peck from the Center for Constitutional Litigation, and Richard L. Jolly of Southwestern Law School, the piece consolidates some of what we’ve known about the history and importance of this “pivotal institution,” and updates it all with recent information about the worsening anti-civil jury trends in today’s world. They also makes common sense suggestions about how to reverse this troublesome situation.
They write:
[L]egal, political, and practical attacks and challenges over time have hollowed the constitutional promise and role of the civil jury. As noted herein, these include:
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Procedural changes stripping juries of their fact-finding authority and empowering legislatures and judges in ways beyond their expertise and constitutional role
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Political and social elites, buoyed by moneyed interests, engaging in a decades-long campaign to denigrate the democratic role of juries in civil dispute resolution
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Recently, COVID-19’s unique constraints on the empaneling and use of civil juries, grinding trials essentially to a halt
Here’s the shocking result (footnotes omitted):
Starting in 1962, the year when federal judicial statistics become most reliable, a consistent decline has been readily apparent in the percent of civil cases disposed of by jury trial. That rate was 5.5% in 1962; 3.7% in 1972; 2.6% in 1982; 1.9% in 1992; 1.2% in 2002; 0.81% in 2012; and finally reaching its nadir of 0.48% in 2020. A similar pattern has been experienced in state courts. In those states that kept accurate statistics, between 1976 and 2002 civil jury trials fell threefold from 1.8% to 0.6% in courts of general jurisdiction. And the most recent data from the Court Statistics Project shows that of those reporting states in 2019, juries disposed of a median of only 0.09% of civil disputes. Simply put, civil jury trials are the very rare exception and not the rule.
Indeed, “The majority of civil disputes today are resolved not by laypeople serving as jurors but through private and publicly funded settlement and arbitration proceedings.” And as we know, arbitration as a method of resolving important disputes is generally not chosen by harmed consumers or workers, but is rather forced on them by the very companies that hurt them. (Here’s our most recent post about that.)
What we also found interesting was how the authors connect this to a far broader trend, i.e. attacks on our democratic system of government. Take note anyone who cares about our nation’s recent precipitous slide towards anti-democratic laws and institutions. They write,
Still, in this time when the future of American democracy is in greater peril than we have ever experienced in our lifetimes, which coincides with our slow emergence from the ravages of a life-changing and deadly pandemic, we cannot forget that jury service provides a form of public participation and grassroots governance that the Founders considered as important in maintaining a democratic republic as voting itself.
Also, take note anyone who is wary of centralized government and privileged classes, and believes in juries as the essence of local governing. No matter ones political perspective, it should seem dire that the “civil jury has fallen into disrepair and neglect, ceding authority reposed by the Constitution in the people to unrepresentative judges, legislative bodies with little regard for our system of justice, and private actors who have locked the courthouse doors.”
The article debunks many myths about civil juries and then proposes some reforms, “focused on removing barriers to jury access and enhancing fair and accurate jury fact-finding.” These reforms include:
- Eliminate legislation capping the jury’s damage-setting authority
- Expand the use of innovative procedural tracks, such as expedited jury trial projects
- Ensure that juries represent the communities from which they are drawn
- Require the use of twelve-person civil juries
- Adopt active jury reforms
Given the breadth of support for the civil jury system from all sides of the political spectrum, these should be no-brainers.
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