February 22, 2013

William & Mary Law Review Symposium: “The Civil Jury as a Political Institution”

Thank you for that kind introduction and for the chance to be with you today at the nation’s oldest law school – dating back to 1780, when Governor Thomas Jefferson prompted the College’s Board of Visitors to let his mentor, George Wythe, begin teaching law at the College. 

Among his first students was the future Chief Justice of the United States John Marshall.  To the current students let me just say this: no pressure.

This law school, although the nation’s oldest, is still young compared to the civil jury.  Scholars have documented, for example, that by 1624 – one hundred fifty-six years before Wythe’s appointment and sixty-nine years before the founding of this College – juries were available for all civil and criminal cases here in Virginia.

The civil jury has of course been a bastion of individual rights throughout a long history.  But it is more than that.  It also is a structural element of our system of government.  It is part of our constitutional design of separated powers. 

That is why this symposium on “The Civil Jury as a Political Institution” matters.  And it is why I want to discuss three topics today: the historical importance of the civil jury, the contemporary undermining of the civil jury, and how to protect the civil jury as an element of our system of government.

Let’s start with some history.

Elements of the jury system can be traced back to twelfth-century England when Henry II transformed the jury from an administrative body into an instrument of justice.  By the 1760s, Sir William Blackstone extolled the trial by jury as the “glory of English law.”

Blackstone understood the civil jury to be a political institution.  He explained:

[T]he most powerful individual in the state will be cautious of committing any flagrant invasion of another’s right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once the fact is ascertained, the law must of course redress it.  This therefore 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 likewise understood the importance of the jury.  In addition to Virginia in 1624, juries were established in 1628 in the Massachusetts Bay Colony, 1677 in the Colony of West New Jersey, and 1682 in Pennsylvania.  

Well before American independence, the civil jury provided Americans a mechanism for participating in their government.

Colonial Americans attacked British efforts to curtail the jury in the 1760s and 1770s.  In response to the Stamp Act, colonists declared that “trial by jury is the inherent and invaluable right of every British subject in these colonies.” 

The 1776 Virginia Declaration of Rights provided: “That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.”  And Mr. Jefferson’s Declaration of Independence complained of the King “depriving us, in many cases, of the benefits of Trial by Jury.”

As Blackstone said, the civil jury “preserves in the hands of the people that share which they ought to have in the administration of public justice.” 

Colonial Americans prized that rightful power, as did the drafters of State Constitutions.  Ten states included provisions protecting the civil jury in their early Constitutions or Bills of Rights, establishing the civil jury as another structural element of government consistent with the Locke and Montesquieu vision of separated powers.

When the original federal Constitution was silent on the civil jury, Americans sounded the alarm, fearing that the Constitution “effectually abolished” the right to a civil jury.  The pamphleteer calling himself “A Democratic Federalist” urged his fellow citizens to “never consent to part with the glorious privilege of trial by jury, but with your lives.”

Federalists were quick to reassure that the Constitution would not deprive anyone of access to the civil jury.  The differing forms of trial by jury in the various states made inclusion of any single form of civil jury in the Constitution impractical, they argued.  Legislation could sort out the details. 

This view did not prevail.  By August 1788, five of the thirteen ratifying conventions already had demanded greater jury safeguards, and the Bill of Rights was sent to the States with the Seventh Amendment, which would protect the civil jury. 

James Madison, who once doubted the need for a Bill of Rights, supported the amendment, stating that “[t]rial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” 

Alexis DeTocqueville agreed half a century later, calling the jury an “institution of government” and “a mode of the sovereignty of the people.” 

So we can see that the civil jury was understood from its beginnings in England as a mechanism for the people to exercise an element of sovereign power, and to defend themselves against power and influence. 

It was a flashpoint in the revolutionary period for exactly this reason; it was explicitly preserved in the Bill of Rights to serve this political function; and it was clearly recognized as such by DeTocqueville and other students of American politics. 

Against this historical backdrop, let’s turn to the recent Supreme Court decisions that have undermined the civil jury despite the special role that it plays in American society. 

These decisions, relating to arbitration, pleading, class actions, and punitive damages, do not interpret the Seventh Amendment — and in fact, they consistently ignore the civil jury amendment, as they busily make it harder for individuals to get to a civil jury, and harder for the civil jury to play its intended function in our system of government. 

One line of recent cases has seen the Court expand arbitration in ways that allow powerful commercial interests to divert litigants away from civil juries. 

The Federal Arbitration Act of 1925 provides procedural guidance to courts applying commercial arbitration agreements, and for a long time, the Supreme Court applied the statute narrowly. 

That has changed.  In 2001, the Court expanded the Act’s coverage of employees engaged in “interstate commerce,” and in the last three years the Court has held that arbitrators may even adjudicate whether their arbitration clause is unconscionable, and held that mandatory arbitration clauses may prohibit class actions. 

As a result, more and more cases are funneled into business-friendly arbitration, and away from the jury.

Supreme Court decisions also added a new element to Federal Rule of Civil Procedure 8(a), long understood as providing a simple pleading system intended to focus litigation on the merits of a claim. 

The Court’s decisions in Twombly and Iqbal departed from this understanding, deciding that a complaint “must state a claim to relief that is plausible on its face,” making it easier for defendants to use dispositive motions to keep plaintiffs away from a jury.

Relatedly, the Roberts Court has made it harder to establish that a class action is appropriate.  As a result, injured Americans must pursue relief one by one, effectively preventing cases of large-scale but low-amount fraud from getting before a civil jury.

Finally, recent Supreme Court decisions have limited the civil jury’s traditional authority to impose punitive damages. 

In the 1990s, the Court began to impose both procedural and substantive limits on jury awards in state court cases.  In 2008, the Court took this concept even further, holding that an award of punitive damages higher than the compensatory damages award would make punitive damages too unpredictable for corporations. 

The judgment of the jury, its role as a mechanism for redress against the powerful, and the historic wisdom of the Founding Fathers all stood for naught, compared to providing corporations “predictability.”

The sum total of these cases has been a windfall for corporations that injure Americans, whether through deficient products or employee discrimination. 

This result, of course, has been the intent of organizations such as the U.S. Chamber of Commerce’s “Institute for Legal Reform.”  Corporate-funded “Astroturf” campaigns have pressed the fight in local judicial elections, in state and federal legislatures, and in the court of public opinion. 

Ask Americans to fill in a blank before the word “jury,” and how many of them would come up with the word “runaway”?  Everyone who does is a testament to the influence of this campaign.

We have slid a long way since the popular outcry for jury trial in 1776.  Today, the civil jury has fallen precipitously in the esteem of both the public and the Supreme Court, and jury trials are the rare exception, not the rule in American courtrooms. 

One might even wonder whether we have lost our historic understanding of the political function of the civil jury.  We forget our history at our peril.  

Four reasons make the civil jury as necessary a part of our constitutional system today as it was at the birth of our nation. 

First, the civil jury prevents judicial autocracy.  By removing fact determination from the province of the judge, it offsets any bias that may be introduced through the judge’s preferences.  For this reason, Alexander Hamilton called the civil jury a “security against corruption.” 

Second, service on civil juries fosters civic education and engagement.  As De Tocqueville wrote, the civil jury “should be regarded as a free school which is always open and in which each juror learns his rights.”  

Civil jurors are empowered to actually make decisions on the outcome of disputes and the application of laws in their communities. 

Third, the civil jury brings together Americans of different walks of life.  By requiring jurors to be locked in a room together and to reach a reasoned conclusion, jury service strengthens the fabric of our democracy.

Fourth, the civil jury helps check and distribute power.  The American system of government, after all, is built on Montesquieu and Locke’s premise that divided government and separated powers are most protective of individual liberty.  The civil jury further distributes the authority of the state, vesting citizens with direct and substantial authority to resolve disputes among citizens. 

Not for nothing did the Founders reference the jury three times in the Constitution and the Bill of Rights. 

Imagine that you are all alone and unpopular; that the forces of society are arrayed against you.  Imagine that your adversary’s lobbyists have the legislature tied in knots and the governor in their pocket.  Imagine that the owners of the local press have marshaled public opinion against you. 

One last sanctuary remains: the hard square corners of the jury box stand firm against the tide of influence and money. 

That was why DeTocqueville called the jury an “institution of government” and “a mode of the sovereignty of the people.”  Not for nothing was the chapter of “Democracy in America” in which he discusses the civil jury entitled: “On What Tempers the Tyranny of the Majority.”

The Founding Fathers built safety valves into our system of government.  One was a civil jury that allows people without power to participate in our decisions. 

The powerful will always seek to gain influence over all levers of government power.  Look at the efforts of commercial interests to seek influence over the legislative and executive branches, through lobbyists and campaign contributions, and now through Super PACs. 

Is it not a matter of public concern when powerful commercial interests succeed at inhibiting the very institution of government designed exactly to counter their power and influence?

So, what can we do?

First, the Court could incorporate the Seventh Amendment against the states.  The civil jury would appear to meet the judicial test that it be “deeply rooted in this Nation’s history and tradition” and “fundamental to our scheme of ordered liberty.”

That would be a reasonable first step.

The Supreme Court also could reconsider, in light of the jury’s role, the decisions I described previously relating to arbitration, pleading, class actions, and punitive damages. 

In other areas of constitutional doctrine the Court is far more solicitous.

In the First Amendment context, the Supreme Court has struck down otherwise unobjectionable rules that “chill” the exercise of free speech rights.  Why not, under the Seventh Amendment, strike down rules that “chill” the ability to proceed to a civil jury?

The Supreme Court has shown great solicitude for the Second Amendment, recently discovering an individual right to bear arms for the purpose of self-defense. 

The Court has not been equally solicitous of the Seventh Amendment or similarly attempted to constitutionalize the purposes it serves.

Finally, in the Fifth and Sixth Amendment contexts, the Miranda warnings inform an individual of his or her legal rights, to avoid unwitting surrender of rights protected by the Constitution.  Why not, in the context of the civil jury, prohibit pre-dispute mandatory arbitration clauses without a clear and specific knowing, voluntary waiver?

Congress too can act.

Congress could override most if not all of the Supreme Court’s recent decisions that have undermined the civil jury.  Bills to ban mandatory pre-dispute arbitration, to restore notice pleading, to protect class actions, and to enshrine the jury’s proper discretion regarding punitive damages, all have been introduced in Congress. 

Unfortunately, corporate interests usually defeat these legislative efforts.  The success of the Lilly Ledbetter Act, which related to the civil justice system, if not the civil jury specifically, provides hope for those of us championing this fight, but it will be an uphill slog.

Furthermore, the Senate ought to promote the civil jury’s structural role through the judicial confirmation process.  Judicial nominees should not be confirmed to the bench thinking that the civil jury is simply an appendage of the court to manage and diminish. 

To that end, I have asked recent nominees before the Senate Judiciary Committee, including now-Justices Sotomayor and Kagan, about their perspectives on the jury. 

At a 2011 hearing on the role of judges under the Constitution, I asked Justice Scalia whether he understood the jury to be a political institution and “an important piece of our governmental architecture.”  He agreed, saying that the jury “is a check on the judges.  I think the Framers were not willing to trust the judges to find the facts. . . . So it absolutely is a structural guarantee of the Constitution.” 

Justice Breyer likewise addressed the structural role of the jury, observing that it brings “an entire community into the legal process.”  Summarizing their sentiments, Justice Scalia added: “I am a big fan of the jury, and I think our Court is, too.”

I hope that history will prove that the Court understands the importance of the jury.  Constitutional text and history place the civil jury as a political institution within our system of government. 

At our peril, we allow it to wither away unheeded and unappreciated.  Let’s not make that mistake.