What’s a Jury Good For?
John T. Nockleby1
In the past few years many organizations, companies and individuals have
mounted a campaign against the civil jury system. These entities have so
cleverly deployed their arguments against juries that the rhetorical flourishes by
now are commonplace: too many ―frivolous suits‖ clog courthouses; juries find
liability too readily; their awards are too generous; they are inefficient. 2
Corporate executives dislike the civil jury, contending that juries’ sympathies lie
with plaintiffs, and tilt against deep pocketed defendants. They also contend that
jury verdicts have grown increasingly unpredictable, and that juries’ damage
awards are ruled by emotion not fact. Despite the charges, much scholarship
shows both that juries are skeptical of the claims of victims, and take seriously
their oaths to judge fairly between the parties.3 Nonetheless significant
percentages of the public and policymakers believe the charges true.
Although the attacks upon the institution of the jury may have carried the day in
political discourse, it may prove worthwhile to survey some of the reasons the
American legal system has preserved jury trials in civil cases. Although polemics
against civil juries may have succeeded in undermining the public’s faith in civil
juries, it might still be a useful exercise to remind ourselves what functions the
civil jury serves. Doing so might also help us understand why the civil jury has
become controversial in recent years.4
In asking ―why does American society have a civil jury?,‖ one might point to the
pedigree of the civil jury; its antecedents in Magna Carta and before; and its
Professor of Law & Director, Civil Justice Program, Loyola Law School, Los Angeles, CA.
I have addressed aspects of the argument elsewhere. See Nockleby, ―100 Years Of
Conflict: The Past And Future Of Tort Retrenchment,‖ (With Shannon Curreri), 39 Loyola Law
Review (forthcoming March, 2005); Nockleby, ―How to Manufacture a Crisis: The Vacuity of
―Tort Reform‖ Arguments,‖ (article submitted to law reviews 2005). See also Marc Galanter,
―An Oil Strike in Hell! Contemporary Legends about the Civil Justice System,‖ 40 Arizona Law
Review 717-752 (1998).
See, e.g, Neil Vidmar, The Performance Of The American Civil Jury: An Empirical Perspective,
40 Ariz. L. Rev. 849 (1998); Neil Vidmar, Medical Malpractice and the American Jury: Confronting
the Myths About Jury Incompetence, Deep Pockets and Outrageous Damage Awards (1995);
Valerie P. Hans, Business on Trial: The Civil Jury and Corporate Responsibility 216-17 (2000)
(stating empirical studies do not support myth of jurors as pro-plaintiff); Marc Galanter, Real
World Torts: An Antidote to Anecdote. 55 Md. L. Rev. 1093 (1996); Galanter, News from
Nowhere: The Debased Debate on Civil Justice, 71 Denv. U. L. Rev. 77 (1993). Ted Eisenberg
has conducted many empirical studies of trial participant behavior. See, e.g., Juries, Judges, and
Punitive Damages: An Empirical Study, 87 Cornell L. Rev. 743-82 (2002) (with N. LaFountain, B.
Ostrom, D. Rottman & M. Wells); The Litigious Plaintiff Hypothesis: Case Selection and
Resolution, 28 RAND J. of Economics S92-S112 (1997) (with H. Farber).
Other scholars have studied this question with great care, so my goal in this essay is to
summarize with broad sweep rather than to create new theory.
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appearance in nearly all state constitutions; and its enshrinement in the 7 th
Amendment.5 These arguments might ordinarily carry the day.
For example, during the debate within the colonies about whether to ratify the
Constitution, one of the grounds cited by the anti-Federalists in opposition was
that the original text failed to provide for jury trials in civil cases—even though
Article III provided for juries in criminal cases.6 This defect was remedied with
enactment of the 7th Amendment.7
However, even though the civil jury carries a distinguished pedigree a critic might
nonetheless conclude that the institution has outlived its usefulness. As Holmes
famously said, [paraphrasing] ―there’s no more unsatisfying reason for a rule than
that it has existed since the time of Kubla Khan.‖ So, my goal will be to focus on
the current functions a civil jury serves rather than to review sound historical
reasons that compelled our country’s Founders to enshrine civil juries in the
Constitution, and most states to follow suit.
To summarize the following discussion, I think civil juries serve three distinct
functions. These functions are familiar to those participating in the Summit, but
to much of the public these functions may not be as well known. The system of
(1) incorporates a deliberative democratic body within the third branch;
(2) serves to check and balance the exercise of governmental and
corporate power, and to instill social norms within the judicial
(3) legitimates both the process and the outcome of legal judgments.
This history has been well-recounted by several scholars, including some by the panelists
presenting at this Jury Summit. See e.g., Stephen Landsman, ―The Civil Jury in America: Scenes
from an Unappreciated History,‖ 44 Hastings Law Journal 579 (1993); Nancy S. Marder, The
Myth of the Nullifying Jury, 93 Northwestern University Law Review 877 (1999); Neil Vidmar, ―The
Performance of the American Jury: An Empirical Perspective,‖ 40 Arizona Law Review 849
(1998); Valerie Hans and Neil Vidmar, JUDGING THE JURY (Perseus 1986);
See Leonard Levy, The Palladium of Justice 92-98 (1999). In Federalist No. 83, Hamilton
contrasted those who supported the Constitution with those who opposed:
―The friends and adversaries of the plan of the convention, if they agree in nothing else,
concur at least in the value they set upon the trial by jury; or if there is any difference
between them it consists in this: the former regard it as a valuable safeguard to liberty;
the latter represent it as the very palladium of free government.‖
Federalist Papers, No. 83 (
The Seventh Amendment to the United States Constitution reads:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-
examined in any Court of the United States, than according to the rules of the common
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In short, the civil jury serves a critical role in the delivery of justice; but it serves
equally important roles in the constitutional structure of our society, checking and
balancing public and private power. The institution also legitimates the exercise
of judicial power, ensuring public support and acceptance of judgments.
In the remainder of this essay, I’ll briefly expand on each of these functions. My
goal is to sweep broadly. While there are many caveats and reservations to the
following, I focus now on the critical role juries play in executing justice in civil
society. I leave for another day the project of adding nuance and caution. [I’ll
also do my best to avoid frequent strokes of my ―insert footnote‖ key.]
I. The civil jury system constitutes a democratic institution within the
judicial branch in which the public regularly participates in
Americans distrust governmental power, particularly centralized power. Our
federal system disperses power throughout many levels of government, and
incorporates many checks and balances on the exercise of power. To ensure
that the representatives of the people are sufficiently responsive to the
electorate, we regularly conduct elections. To guard against tyranny, most
important decisions require agreement or acquiescence by other branches to be
effective. In order to protect ourselves from arbitrariness, we have established
both structures and processes of governance.
By ―structure,‖ I mean the architecture of our institutions, the division into
formal agencies that exercise governmental power. ―Processes‖ refers to the
mechanics of how each governmental agency exercises power. Both the
structures and processes of institutional design help ensure that governmental
power is dispersed and channeled in ways that both check power, and ensure
The civil jury serves both structural and process functions in our democracy.
As a part of our constitutional design for the exercise of judicial power, the civil
jury ensures that judicial power is checked. No one may be convicted of a
significant criminal offense without participation by a jury. No significant
deprivation of property can be accomplished in a civil suit without participation by
a jury. The function of the civil jury as a bulwark against tyranny of power, the
checking function, will be addressed below in Part II. Here I want to focus on
how the jury empowers ordinary citizens directly to exercise governmental
power.9 It is the processes –the mechanics—of how the civil jury functions in our
democracy that I want to explore.
See, e.g., Jeffrey Abramson, We, The Jury: The Jury System and the Ideal of Democracy
(Harvard U. Press 1994).
See Abramson, supra, at 2.
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The media can sometimes treat democracy as though its only significant
function entails voting for candidates. The perennial obsession with electoral
horse races obscures other mechanisms by which citizens participate in the
functioning of the polity, such as through jury service. I don’t want to idealize jury
service, but want to point out three characteristics of jury service familiar to all
trial lawyers that signals a functioning democratic process: (a) equal opportunity
for participation by all; (b) the exercise of decision-making power; and (c)
protection from retaliation or punishment for decisions.
(a) Equal opportunity for participation in jury service means something
different here than in other democratic contexts such as voting. In the voting
context, all citizens vote on the same questions at the same time. With jury
service, participation is serial. Not everyone serves on every jury, but all citizens
have relatively similar opportunity to serve. Except in unusual circumstances, no
second jury reviews the outcome rendered by a jury. This results in what Heather
Gerken calls ―disaggregated democracy:‖ the jury system is comprised of
independent, roughly equal decision-making bodies.10 Individual juries are not
representative of the population, but over time everyone participates in the jury
In both voting and jury service contexts, each person’s voice and vote count
equally. The rich and powerful have no more weight in the jury room than the
humblest among us. This concept of equal justice, articulated in ABOTA’S
mission statement, gives voice to our aspiration for the jury system. The
democratic structure and procedures of the jury system facilitates a form of
citizenship that extends beyond elections.
In sum, the jury is the public’s means of participating in the judicial process.
The system of civil juries does not ensure public control of the third branch
anymore than voting for Congress ensures the public ―controls‖ the legislative
branch. Rather, the jury system ensures the public a voice, a role in the exercise
of judicial power.
The jury system also incorporates important community values into the
deliberative process. Trial lawyers are experts on understanding how juries think.
The rest of the society may not like the judgment of ―the common man,‖ but we
have committed ourselves to a society in which democratic values supposedly
govern. Whereas lawyers and judges are often prepared to force changes in law
and society, juries can act as a ―brake‖ on social change.11 The participation of
Heather Gerken, ―Second Order Diversity,‖ 118 Harvard Law Review 1099, 1108, 1137 (2005).
This is not always a positive feature. During the civil rights movement many southern juries
refused to convict avowed racists for heinous crimes. See, e.g., Gunnar Myrdal, An Amercian
Dilemma (1944), cited in Abramson, supra, at 62. As a result, to circumvent the recalcitrance of
many communities and civil institutions, the 1960’s-era civil rights statutes avoided juries by
granting federal judges equitable powers to desegregate the society. See, e.g., the Civil Rights
Act of 1964; Voting Rights Act.
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juries in the law-making and law-applying process helps ensure that the legal
system does not stray too far from the judgment of the larger community.
Moreover, unlike other opportunities for democratic participation, the jury is
uniquely the only institution that requires a pledge by jurors to participate in a
deliberative process in which they must both respect the law and the facts that
have been presented, and in which they must take account of others’ views.
The uniqueness of this requirement—truly ―deliberative democracy‖—is
insufficiently appreciated. To understand the magnitude of what we ask juries to
do, imagine if a handful of ideologically-diverse people randomly chosen
gathered to decide who should be the next governor of California. Could they
reach a consensus? The jury system puts our citizenry to the test—asking that
they put aside individual differences and deliberate with total strangers about the
fate of others’ lives or property, thereby reaching a fair judgment.12
The requirement of deliberation is not an inherent attribute of juries.
Professor Abramson reports that Brazil also employs a jury system, but Brazilian
jurors are forbidden to talk to one another. Instead, at the conclusion of the trial,
the jurors take a secret ballot and the majority vote wins.13
There may be no other governmental institution within our society that
requires such a deliberative process.14 Despite it being a representative body,
Congress certainly doesn’t deliberate like juries. We accept the necessity of
majority rule for elections, and accept that the shouting matches on ―talk shows‖
resemble an effort to entertain if not persuade. But nowhere else in our entire
system of democratic governance do we require those who exercise power
reason together in order to reach consensus on questions of shared justice.
Deliberative democracy is truly a remarkable characteristic of the jury system.
(b) The exercise of power by juries is also unique in a democracy. Most
societies do not trust ordinary citizens to vote or make important decisions that
affect important people or institutions. Even in democracies, direct participation
by citizens in making actual governance decisions is rare. The tradition of jury
service in which citizens issue final verdicts is also unique in this respect.
Indeed, in criminal cases once acquitted by a jury a defendant may not be re-
See Alexis de Tocqueville, Democracy in America (1833):
―Juries invest each citizen with a sort of magisterial office; they make all … feel that they
have duties toward society and that they take a share in its government. By making men
pay attention to things other than their own affairs, they combat that individual selfishness
which is like rust in society.‖
See Abramson, supra, We the People at xx.
Other institutions also value deliberation, such as appellate panels; the ―town meetings‖ of
communities in the northeastern United States; and the President’s Cabinet meetings. However,
in these contexts, consensus, even if sought, is not ordinarily required in order to reach decision.
In contrast, Quaker meetings value and endorse consensus as a means to decision.
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tried for the same crime. In civil cases, the principles of res judicata and
collateral estoppel accomplish similar objectives.
The guiding principle of democratic governance is that exercises of power
should be dispersed, shared and localized. The jury satisfies each of these
aspirations well. The judicial power itself is split between federal and state
systems. Every year thousands of separately-constituted civil juries sit in
judgment of thousands of claims. That these juries are not connected to one
another, and so far as we know have no specific knowledge of each others’
functioning, ensures that judicial power across civil cases is dispersed. Further,
the jury shares factfinding and adjudicative power with judges. And the process
of individual trials ensues that all initial claims are heard at a local level.
(c) Further, we shield juries and jurors from influence during the proceedings,
and from punishment afterwards.15 Even when individual juries make decisions
that afflict the powerful, we protect jurors from retaliation or coercion. Jury
deliberation is secret, and cannot be recorded. These guarantees are critical to
the independence of juries, and a secret to the power a jury can wield.
II. The Jury System Operates to Check and Balance Governmental and
In the United States, we have embraced the rule of law, and incorporated
multiple checks and balances into our system of governance. Legislation
requires approval of both houses of Congress, plus signature of the executive.
Courts interpret legislation, but their interpretations can be amended by
One judicial function that cannot be usurped or controlled by other branches
of government concerns the application of law to specific controversies. The
legislature may decree what constitutes libel, but it may not also decide whether
the New York Times libeled L.B. Sullivan.16 The executive branch may prosecute
John Peter Zenger for seditious libel, or may sue Alcoa Aluminum for civil
violations of OSHA. But the prosecutor may not convict Zenger without judicial
process, nor may the government exact a civil penalty without affording Alcoa
This has been so within the Western Legal tradition ever since the trial court’s punishment of
jurors for refusing to convict William Penn for preaching to a crowd was overturned in Bushel’s
Case, 124 Eng. Rep. 1006 (1670). See generally William L. Dwyer, In the Hands of the People
52-59 (N.Y. 2002).
New York Times v. Sullivan, 376 U.S. 254 (1964).
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Our government system is one of checks and balances. The jury serves
several critical checking functions of both public and private power. The function
of the jury as a check on the exercise of public power is fairly well understood.
First, and most important, the jury exercises power in a way that helps check and
balance the judicial power. When the public participates in juries, it exercises
governmental power in a manner that shares ultimate responsibility with jurists.
Under the current division of judge/jury responsibility,17 the judge determines
what law controls, and the jury answers two questions: (1) what happened; and
(2) did what happen satisfy the legal standard creating liability? If the parties
both agree, they are free to waive the jury trial. But when the jury is empanelled
the power of judgment is shared in the courtroom. In this fashion, judicial power
In addition to checking public power, the jury system also checks the
exercise of private power, particularly power exercised by large institutions and
corporations. One of the unfortunate truths about contemporary society is that
people have as much to fear from corporate carelessness and wrongdoing as
from governmental overreaching.18
The authority of the jury to check private power also has a long pedigree. From
the time of the Revolution, colonists worried that the powerful interests in that
era—the upper classes—would take advantage of the rest of the society.19
How do juries help check the power of corporations? The short version of the
answer has to do with the substantive nature of the questions juries are called
upon to answer. Questions such as these are the staple of jury decision-making:
Could the defendant foresee the hazard that befell the plaintiff, and did the
defendant thereafter act ―reasonably under the circumstances?‖
Was the defendant’s medical procedure performed with proper
authorization and informed consent?
Did the defendant act on adequate information when it detained the
plaintiff for shoplifting?
Did the defendant’s product create excessive preventable danger leading
to the plaintiff’s injury?
The current division of responsibility has not always been so. For more than a century
bracketing the founding of the country, many authorities insisted that the jury had the right and
power to determine for itself the law as well as the facts. See, e.g., Levy, supra at xx. Abramson
Many sources could be cited for this, but I’ll mention Enron, asbestos, the WorldCom debacle,
the Arthur Andersen accounting scandal, DES, the Ford Pinto. In the past year the New York
Times has run a series of exposes on grade crossing hazards that railroads have failed to repair.
See, e.g., Judge George Bryan writing as ―Centinel,‖ argued in a Philadelphea newspaper that
only a civil jury could prevent ―the encroachments of the more powerful and wealthy citizens.‖
Quoted in Leonard Levy, supra, at 94.
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These questions, like many in law, require the application of judgment and
thought. They cannot be answered without reference to some normative
standard, and in the case of juries this ordinarily means that the jury is applying
Those scholars who have conducted important empirical studies of jury behavior
are struck by the care and perspective jurors bring to questions requiring
judgment.20 In exercising judgment, most studies show, jurors are carefully
neutral, not tending to favor the individual nor unduly to respect the powerful
entity called to account.21
Juries are often attacked today by those corporations who are called to account.
Juries are sometimes painted in extreme terms, and critiqued as being out of
control.22 However, courts possess many jury-control mechanisms as well, and
regularly use their oversight powers to check unsupported verdicts.
Moreover, in the context of contemporary politics, corporations may feel that they
would get a better shake from judges. This may reflect a considered judgment
that judges as a class are more amenable to corporate power; that judges are
more manipulable; or that an unfriendly (state court) judge can be removed more
easily with the next election cycle.23 To the extent any of these are true, that
alone should give us pause before we consign juries to a marginal role in
checking private power. The rise of increasingly harsh judicial election
campaigns should also cause us concern for the threat they pose to judicial
independence. Jury decision-making helps in part to insulate state court judges
from the vitriol that accompanies recent attacks upon the jury system.
In addition to the checking-of-power function, the jury helps ensure that the
courts remain open to public inspection, so that important decisions are not made
in secret. Other constitutional rules also ensure that the doors to courtrooms
generally remain open even when the public is not seeking participation. 24 But,
the regularized participation of the citizenry in the judicial process helps ensure
that the public can regularly review the civil judicial process. Put another way,
suppose that a civil jury did not actually reach a decision but merely observed the
See e.g., Valerie Hans; Shari Seidman Diamond; Neil Vidmar; Ted Eisenberg. Also the classic
See Nockleby, The Past and Future of Tort Retrenchment, supra. Also see articles cited in
Nockleby, Past and Future, supra.
The recent Loyola Law School Symposium on civil justice addressed the increasingly
controversial election pressures that state court judges face. See xx
In Richmond Newspapers, the Supreme Court held that the structural function of the first
amendment required that criminal trials remain open even if the state, the defendant, and the
judge desired to close it. The principle of Richmond Newspapers was extended to criminal
pretrial hearings in xxx.
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proceedings. The fact that several random members of the public are physically
present during the trial helps guard the processes from abuse.25
Finally, related to the oversight function, the fact that ordinary citizens are
present in the courtroom helps to balance the power of a professional class of
lawyers and judges. Although we lawyers sometimes think we know what is in
the public interest, it would be an unfortunate turn if legal processes became the
sole province of a professional class of people trained in law.
In view of the fact that juries serve to counter-balance the power of legal
professionals in the courtroom, it is ironic that some of the leading defenders of
jury trials are those same legal professionals gathered for the 7th Amendment
III. Legitimation of Judicial Process.
The third function of juries is to legitimize the structure and decisions of the third
branch.26 Legitimation refers to the perception that a decision or series of
decisions issued by an agency of government derives from a valid authority, not
an illegitimate one.
The jury system legitimates the functioning of the third branch in several ways.
First, because the jury is a democratic institution requiring participation by all
citizens over time, that alone serves to legitimate the process of juror decision-
making. Citizens are invested in the process because they participate in it. If
people participate in a system of governance they share a stake in the success
and validity of the system. That at least is the backbone of democratic theory.
Second, the procedures to select and insulate juries validate the result. Each
jury is selected through a process designed to eliminate bias, and jurors take an
oath to deliberate based upon the law and evidence adduced at trial. Because
jurors are not interested in the results, and are shielded from influence or
punishment for their decision, in general jury verdicts in the aggregate are
thought to accord with community mores. While it is true that not every jury can
reflects a cross-section of the community, in aggregate juries ―represent‖ the
community from which they are chosen.27
Third, the deliberative process itself serves to legitimate the decision. When
people come from different economic backgrounds, competing political views,
and diverse cultural and religious traditions, and are asked to put aside their
The presence of neutral members of the public helps guard against possible judicial abuses, as
well as abuse of process by the parties.
See Jurgen Habermas, Legitimation Crisis (1977).
See Heather Gerken, ―Second-order Diversity,‖ supra.
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preconceptions, the process of deliberation—intense conversation directed
toward harmonizing competing perspectives—enhances the legitimacy of the
outcome. The public is more likely to accept the justness of the outcome if they
understand that the jury went through a deliberative process focused on the
evidence. Particularly when unanimous verdicts are required, the public is likely
to have confidence that ―a jury verdict was just, accurate and true.‖28
Finally, it might be useful to contrast a system of juror decision-making with the
alternative of judicial verdicts.
When judges exercise power that conflicts with popular will, they have become
targets of vitriol. We saw many instances of this on the attacks on federal judges
exercising their equitable powers in the desegregation cases. When North
Carolina Federal Judge James McMillan ordered Mecklenburg County to bus
school children as a desegregation remedy, he was ostracized and burned in
effigy.29 President Johnson was required to order the National Guard to enforce
desegregation orders in Alabama over objections of intransigent whites.
Consider also ongoing controversies over judicial review of legislation, which are
constantly the subject of roundhouse attacks from within the political process.
This year, the book ―Men in Black: How the Supreme Court is Destroying
America‖ currently ranks number 22 on the Amazon booklist. This book is not
alone in attacking judicial review.
Controversies over exercise of judicial power are not confined to attacks on
federal judges by any means. In recent years, state judicial elections have
become increasingly politicized—and polarized—with all sides running attack ads
on judges perceived to be too hard or too soft on corporations or criminals.
Whatever the source of these increasingly harsh attacks upon state judges, it is
clear that the exercise of judicial power is controversial.
Imagine how much more controversy would surround judging if judges not only
made law, but enforced it with verdicts. Do judges want to take over the function
of determining whether the Ford Bronco is defectively designed causing the
deaths of a family of four? I can only imagine how much more controversial
judging would become if we adopted such a system.
The virtue of power-sharing arrangement between judges and juries is that
responsibility is also shared. And that power-sharing arrangement not only
Abramson, supra, at 203.
When I began my employment with the civil rights firm that represented the Swann plaintiffs,
then known as Chambers, Ferguson, Watt, Wallas & Adkins, one of my first tasks was to cull the
Swann files of private correspondence so the papers couild be donated to a university archives.
Some of the papers were singed around the edges, reflecting the firebombing of the law firm’s
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buttresses the legitimacy of the outcome in the mind of the public, but also helps
to ensure the independence of the judiciary.
My purpose in this overview has been to identify some of the key functions the
jury serves in contemporary American society. This is not to say that the jury—or
the jury system—cannot be improved or that it is immune from criticism.
However, if the civil jury is in decline30, the reasons for its decline may have
something to do with the reasons we might as a society want to preserve it. In
other words, if the jury is being attacked in the political process, what are the
controversial functions it performs in contemporary society?
Putting the question colloquially, whose ox is being gored by the civil jury? Of
the functions currently performed by the civil jury, the one that is currently most
contentious is checking private power. But, this has not always been the most
controverted function. At other times, the jury has been criticized because it gave
too much power to ordinary and untrained citizens to check government policy.
I suggest that if we wish to understand the attack on civil juries, we need to pay
more attention to the checking function. Why is it a good thing to have juries
oversee regulate of private power?31
It is clear that the jury performs key functions in our constitutional structure. I
have identified three in this paper—its function as a democratic institution, its
function to check and balance public and private power, and its function as a
legitimating institution. We should carefully consider what we might lose before
we reduce or abandon civil juries in American society.
There are obviously alternative explanations for understanding the decline of the civil jury.
See, e.g., Galanter, The Vanishing Trial, 10 No. 4 Disp. Resol. Mag. 3 (Summer 2004).
See, e.g., Marc Galanter, ―The Regulatory Function of the Jury,‖ in Verdict: Assessing the Civil
Jury System, ed. Robert E. Litan (Washington, D.C.: Brookings Institution, 1993); Galanter, The
Turn Against Law: The Recoil Against Expanding Accountability, 81 Tex. L. Rev. 285 (2002).
See generally Nockleby, ―Manufacturing a Crisis,‖ supra.
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