The Political Puzzle of the Civil Jury

Abstract

At the root of many contemporary debates over the civil justice or tort system — debates over punitive damages, preemption, and tort reform more broadly — are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center. The debate over the jury — in both the academic literature and the public domain — tends to focus on how good or bad it is as an adjudicative institution. But its justification has often been based on its value as a political institution. In this Article, I look at the theory, concepts, and empirical evidence behind four principal justifications for the civil jury as a political institution: (1) acting as a check on government and corporate power, (2) injecting community norms into the legal system, (3) providing legitimacy for the civil justice system, and (4) fostering political and civic engagement among citizens. I tentatively conclude that the benefits of the civil jury as a political institution are overstated and provide suggestions for improving the functioning of the jury as a political institution and for further empirical research.

Keywords: civil jury, tort law