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The Dwindling Civil Jury
The National Law Journal
In recent years corporations have racked up significant victories before the U.S. Supreme Court a corporate windfall that has come at the expense of Americans who are unable to win redress for their injuries. These decisions have also worked an often overlooked harm: They have made it harder for the civil jury to play its constitutional function in our American system of government.
The jury is more than just a means of dispute resolution, just a fact-finding appendage to the court. It is a structural element of our system of separated powers. Alexis de Tocqueville described the civil jury as an "institution of government" and a "form of the sovereignty of the people." The civil jury, according to William Blackstone, "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."
The earliest American settlers established juries by 1624 in Virginia, 1628 in Massachusetts, 1677 in New Jersey and 1682 in Pennsylvania. Civil juries provided a means of self-government to early Americans as they chafed under colonial rule, and efforts to deny that right helped foment the American Revolution. Americans sounded the alarm when the original Constitution was silent on the civil jury, and the Seventh Amendment which protects the civil jury was ultimately sent to the states with the Bill of Rights.
The civil jury remains an important political institution. It provides a forum in which all citizens stand equal. It further distributes power in our divided government, vesting citizens with the authority to resolve disputes among themselves. It is a bulwark against judicial autocracy, thus providing what Alexander Hamilton called a "security against corruption." It fosters civic engagement and education, serving as what de Tocqueville called "a free school which is always open and in which each juror learns his rights." It is immune from the traditional exercises of political influence. Finally, it strengthens the fabric of our democracy by bringing Americans together to deliberate on questions that are important to the well-being of our communities.
Unfortunately, the Roberts Court does not appear to value this important tradition, perhaps because it is nettlesome to big corporations. One can see why the civil jury would be nettlesome to "the more powerful and wealthy" it was designed to be a guard against their encroachments. Corporations exert massive influence over executive and legislative branch officials, through lobbyists, campaign contributions and super PACs. Tampering with a jury is a crime. For a big corporation to be on an equal footing with a regular person, in a forum it cannot grease with corporate largesse that is not a corporation's accustomed state.
One line of recent cases has seen the Supreme Court expand arbitration in ways that allow powerful commercial interests to divert litigants away from civil juries, even allowing arbitrators to adjudicate whether an arbitration clause is unconscionable. Supreme Court decisions also have departed from the simple and long-standing notice pleading standard (preferring to test complaints for "plausibility") and have made it far harder for injured individuals to band together and proceed to a jury via class action. And the Supreme Court has limited the civil jury's discretion to impose punitive damages, concluding that they were too unpredictable for corporations.
These decisions all restrict the civil jury in its constitutionally intended political function. The founding fathers intended citizens, sitting as a jury, to decide disputes among fellow citizens. Today, however, more and more disputes are diverted to corporate-funded arbitrators, screened out by judges before they get to a jury, or not permitted to proceed in an economically feasible manner. Even when cases do make it to trial, the jury's authority to choose a remedy is cramped by new judicial control. As a result, the civil jury exercises a lesser share of the "sovereignty of the people" and is less able to prevent "the encroachments of the more powerful and wealthy citizens."
There are ways to restore the civil jury to its rightful place in our democracy, and have the Seventh Amendment stand equally beside its fellows.
The Supreme Court could find the Seventh Amendment jury right to be "deeply rooted in this nation's history and tradition" and "fundamental to our scheme of ordered liberty," and thus "incorporate" it against the states under the 14th Amendment. The court also could ask, for example, whether a rule "chills" the exercise of the civil jury right (as it asks in the First Amendment context); or whether only a knowing waiver of the jury right will be accepted (as is required in the context of the Fifth Amendment); or whether the solicitude recently shown by the court to the Second Amendment should also be directed to the Seventh Amendment.
Congress, too, can act. We could override most, if not all, of the Supreme Court's recent decisions that have undermined the civil jury. Bills to ban mandatory predispute arbitration, to restore notice pleading, to protect class actions and to enshrine the jury's proper discretion regarding punitive damages all have been introduced. I hope they will receive broad support.
A breakwater built into our system of government by our nation's founding fathers, the civil jury is designed to stand firm against the tide of influence and money. We allow it to crumble, or be disassembled, at our peril.
U.S. Senator Sheldon Whitehouse, D-R.I., is a member of the Senate Judiciary Committee, and a former U.S. attorney and attorney general for Rhode Island.