Motor Vehicle Crash Fatalities and Fatality Rates (per Hundred Million Vehicle Miles Traveled), 1899-2009
C. Judges and Juries
5. Why are juries still around? If juries make the same decisions as judges, except when juries admonish wrongdoers with extreme (and, according to many observers,
unwarranted) punitive damages, why are civil juries still around? What explains the persistence of the American civil jury system? The Seventh Amendment, which
guarantees a civil jury in federal courts, has clear explanatory power for the federal civil jury system. But American tort law is mostly state law, and the Seventh Amendment is not incorporated against the states, and so does not apply at all in state courts, which are the more important institutions for most tort cases. To be sure, state constitutions have jury-trial guarantees, too. But these provisions cannot explain the persistence of the civil jury, because state constitutions almost never entrench their provisions against
subsequent political reform. State constitutions are typically as easy to amend as statutes.
See Helen Herschkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 HARV.L.REV. 1131 (1999); G. Alan Tarr, Understanding State Constitutions, 65 TEMP.L.REV. 1169, 1181-4 (1992).
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The problem of explaining the durability of the jury grows when we look at its history. When the Seventh Amendment was ratified, the civil jury may have been seen as
“a bulwark against tyranny.” But very quickly objections and critiques emerged. By the time of the adoption of the Federal Rules of Civil Procedure in 1938, many scholars and judges “regarded civil juries less as a bulwark . . . than as a nuisance.” Renee Lerner, The Rise of Directed Verdict: Jury Power in Civil Cases Before the Federal Rules of 1938,”
81 G.W.U.L.REV. 448, 451-2 (2013). So how did the jury survive, given such criticism?
Lerner argues that the rise of jury-limiting procedures in the nineteenth and twentieth centuries, along with substantive tort doctrines like contributory negligence, and later the rise of a powerful summary judgment rule, narrowed the jury’s authority so substantially as to make abolishing the institution less imperative. Green expressed much the same idea when he wrote that
the extravagant pains we take to preserve the integrity of jury trial in final analysis are completely counteracted in the more extravagant provisions which we make for [judicial] review, together with the remarkable technique [ ] courts have developed for subjecting every phase of trial to their own scrutiny and judgment.
GREEN,JUDGE AND JURY, 390-91. The Green and Lerner explanation of the persistence
of the civil jury system is that jury trials survive in the United States, and only in the United States, in significant part because they exist in theory but barely exist in practice.
The pattern grows stronger when we see that jury trials are expressly disallowed in the Federal Tort Claims Act, the Longshoreman and Harbor Workers Compensation Act, and the Miller and Tucker Acts (governing contract claims against the federal government).
There are no juries in Tax Court, Customs Court, or the Court of Claims. Workers’
compensation did away with juries for work accidents. And entire fields such as
admiralty and maritime law, naturalization and immigration law, and bankruptcy law are largely conducted in the absence of juries. See Edward Devitt, Federal Civil Jury Trials Should Be Abolished, 60 A.B.A. J. 570 (1974).
Another distinctive factor in the U.S. is the politically influential plaintiffs’ bar, which responded by embracing the beleaguered institution. Even as judges attempted to pry tort cases away from the jury, and scholars and politicians attempted to pry personal injury cases away from civil trials entirely, in the 1950s and early 1960s the plaintiffs’
bar became a powerful interest group defending the common law trial and the jury.
Rallying against administrative alternatives as “bureaucratic socialism” and “modern totalitarianism,” against which only the jury could stand tall, the plaintiffs’ bar lobbied loudly and in many cases successfully against the displacement of the ancient Anglo-American institution. See JOHN FABIAN WITT,PATRIOTS AND COSMOPOLITANS 209-10 (2007).
Setting aside the continuing controversy over the merits of the jury, virtually everyone agrees that in day-to-day practice juries are deciding less and less. In a review of data on state and federal court trials through the mid-2000s, Professor Marc Galanter discovered a century-long decline in the proportion of civil trials terminating in or after trial: while about 20% of cases ended in trial in 1938, just 2% did in 2003. In fact, even
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as the absolute number of cases in federal and state systems has increased, there has still been a decline in the absolute number of civil trials. In 1992, federal courts held 1,728 tort trials with juries, and state courts in the seventy-five most populous counties held 9,431. Yet in 2001, federal courts 1,471 tort trials with juries, and the county courts held 7,218. That’s a respective 33% and 24% decline in jury trials for tort cases over the course of a decade. Marc Galanter, The Hundred-Year Decline of Trials and the Thirty Years War, 57 STAN.L.REV. 1255, 1256-9 (2005).
6. Replacing the jury. What, if anything, has replaced the jury? In addition to more judge-intensive inquiries into the plausibility of pleadings, summary judgment, and class certification processes, civil trials have been dominated by a heightened judicial role in scrutinizing expert witnesses (in what are known as Daubert hearings). Professor Richard Nagareda contends that “[t]he full-scale, front-to-back, common law trial before a jury has nearly vanished. Its replacement effectively consists of a regime of sequenced trial-like proceedings on what are formally pretrial motions, all ruled upon by a judge alone.”
Richard Nagareda, 1938 All Over Again? Pretrial as Trial in Complex Litigation, 60 DEPAUL L.REV. 647, 667-8 (2010).
More broadly, Professor John Langbein argues that the Federal Rules of Civil Procedure displaced both judge and jury by arming both plaintiff and defendant with the information they need to settle early on in a case:
[A] civil procedure system serves two connected functions: investigating the facts and adjudicating the dispute. The better the system investigates and clarifies the facts, the more it promotes settlement and reduces the need to adjudicate. The Anglo-American common law for most of its history paid scant attention to the investigative function. . . . Pleading was the only significant component of pretrial procedure, and the dominant function of pleading was to control the jury by narrowing to a single issue the question that the jury would be asked to decide. This primitive pretrial process left trial as the only occasion at which it was sometimes possible to investigate issues of fact. Over time, the jury-free equity courts
developed techniques to enable litigants to obtain testimonial and documentary evidence in advance of the adjudication. The fusion of law and equity in the Federal Rules of Civil Procedure of 1938 brought those techniques into the merged procedure, and expanded them notably. The signature reform of the Federal Rules was to shift pretrial procedure from pleading to discovery. A new system of civil procedure emerged, centered on the discovery of documents and the sworn depositions of parties and witnesses. Related innovations, the pretrial conference and summary judgment, reinforced the substitution of discovery for trial. This new procedure system has overcome the investigation deficit that so afflicted common law procedure, enabling almost all cases to be settled or
dismissed without trial. Pretrial procedure has become nontribal procedure by making trial obsolete.
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John Langbein, The Disappearance of Civil Trial in the United States, 122 YALE L.J.
522 (2012).
Ironically, the decline in jury trials may not be a sign of the decline of jury power at all. In a world where discovery and pre-trial procedures such as Daubert hearings allow the parties to have increasingly good information about the value of their claims, plaintiffs and defendants alike will look to settle more often. But settlement happens in the shadow of the jury. Settlements, in other words, reflect the expected costs and benefits of going to trial with a jury. Indeed, the pervasiveness of settlement may
undermine one of the main complaints with juries. Many object that the random draw of lay juries injects an element of chance into the dispute resolution process. It is not fair, critics say, that important cases are resolved by the luck of the draw in juror selection.
But in a world of pervasive private settlements, one bad jury hardly matters. The quirks of any one jury’s outlier decision are washed away in the averaging that parties do when they estimate settlement values.