TorteDeForm

Cyrus Dugger

Juries as Democratic Participation

Juries, especially civil juries, instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.... They make all men feel that they have duties toward society and that they take a share in its government. By making men pay more attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.... [The jury] should be regarded as a free school which is always open and in which each juror learns his rights, . . and is given practical lessons in the law. .. I think that the main reason for the ... political good sense of the Americans is their long experience with juries in civil cases." - Alexis de Tocqueville

Tort “reformers” would have you believe that America is plagued by runaway juries that result in “jackpot” justice based on the jurors’ random and emotional whims about a particular case.

This framing of juries is inaccurate. Juries, although imperfect, do a reasonably good job of evaluating civil claims.


A March 2000 survey of federal judges by the Dallas Morning News and SMU School of Law found overwhelming support of juries. Over 81 percent of respondents thought that most jurors come into a civil case favoring neither side, with nearly 77 percent believing that juries did very well in reaching a just and fair verdict. In addition, 59 percent said they would prefer the dispute to be decided by a jury if they were a litigant in a civil case, with only 21 percent preferring a judge as the decisionmaker - Center for Justice & Democracy

When juries do fall short and grant excessive or insufficient civil verdicts, the judge steps in to invalidate the award.

In a 1987 study, the Rand Corporation's Institute for Civil Justice reported:

“Most criticism of large jury awards has ignored the fact that the current liability system already has a mechanism for reducing excess awards.” Post Trial Adjustments to Jury Awards, Rand Corporation Institute for Civil Justice (1987).

If anything, jury decisions more often than not favor businesses:


Professor Valerie P. Hans, who has studied juries extensively for years, found that jurors “expressed concern about the effect of an award on the business defendant” and that “jurors are “often suspicious and ambivalent toward people who bring lawsuits against business corporations.” - Center for Justice & Democracy


Indeed, as observed in “Distorting the Law,” “because civil juries are routinely asked to decide the 10-20% of the civil cases that are the thorniest – the easier cases and disputes …mostly disappear long before trial – those uninitiated into the workings of the court may underestimate jurors.”

But let’s put this traditional debate aside and say forgetting all of this information supporting the use of juries, even if civil juries are not completely fair, perhaps the answer is “… that’s democracy.”

Aren’t juries part of our democratic process? While imperfect, aren’t they an element of democratic participation, and indeed part of larger form of democratic governance? Sure we may not always like the decision of a small group of jurors in a given civil trial, but we also don’t always like the outcome of our larger democratic processes in our local, state, and federal elections. Yet, we respect the outcome of the democratic process, and the larger principles behind the process.

Indeed, the founders of our nation greatly valued the jury as a form of participatory democracy and a check on the elites they often feared would consolidate control.

“The Framers of the Constitution felt that juries-because they were composed of ordinary citizens and because they owed no financial allegiance to the government-were indispensable to thwarting the excesses of powerful and overzealous government officials. The jury trial was the only right explicitly included in each of the state constitutions penned between 1776 and 1789…Anti-federalists complained that the proposed constitution did not go far enough in protecting juries, and federalists eventually responded by enacting three constitutional amendments guaranteeing grand, petit, and civil juries.” (link)

Personally, I have been disappointed in the outcome of this nation’s federal democratic process for some time now. However, I still believe that the outcome of these processes (aside from the 2000 presidential election and a few others) are, for the most part, legitimate.

So if tort “reformers” believe in the larger federal and state democratic processes, why are they so intent on curtailing its close cousin, the jury, and why are they attempting to limit its involvement in the determination of damages in civil trials?

It’s an interesting question. In many respects, juries are presented with the facts in a less biased and distorted manner than the American electorate in our electoral process. When we select candidates for office we base our decisions on an often imbalanced public relations war between parties with different levels of access to the media, and therefore to us. Candidates often misrepresent facts, and there is infrequently an opportunity to immediately cross-examine or directly challenge a campaigning politician’s statements (with the small exception of disjointed TV ads and one or two short sound bite debates).

The electorate may vote for a candidate because of racist, sexist, homophobic, or ideological beliefs and there is no way to remove these members of the electorate from the process. Members of the electorate are free to publicly state that their votes are influenced by a person's race, religion, or gender and their right to participate democratically is in no way infringed.

Indeed, there is little filter of the information and misinformation to which the American electorate is bound. Ultimately, the decision is reached by a simple majority, and unanimity or consensus is not required. Indeed, candidates are sometimes chosen without a simple majority.

In contrast, jury selection is geared towards identifying and eliminating the bias that permeates our society in so many different fashions. Jurors that reveal bias through questioning can and are removed. Of course, this process is not perfect, and can also allow parties to remove members of some groups under the pre-text of neutral rationales. However, it nevertheless allows both sides to affect who decides the outcome of the case.

Even after the jury is selected, the rules of evidence protect jurors from being unduly influenced by information that is not relevant to the facts and issues before them.

Indeed, the entire judicial process is heavily controlled by rules to reduce bias and increase fairness.

While, like electoral democracy, in criminal and civil litigation different parties are advantaged or disadvantaged because of differing financial/legal resources, unlike electoral democracy, the jury is subjected to a high level of control and selectivity.

As a result, if we believe in the legitimacy of our current system of democratic governance, we’ve got to believe, at least somewhat, in the legitimacy of the jury.

Unlike our presidential elections, there’s even the safeguard of an at least somewhat neutral judge to determine when and if the civil juries decision should be reduced.

When we frame the jury as a sub-part of our larger democratic nation, it is more difficult to object that it should simply be eliminated.

If roughly demographically representative juries that are combed for bias and presented with carefully screened evidence are not legitimate, how can we be satisfied with a larger electoral process that does not have these same safeguards.

Of course, civil juries and elections are processes geared towards different ends, and so the comparison is ultimately imperfect.

The former, attempts to ascertain facts in the furtherance of the application of the nation’s laws, and the latter selects our representatives. Our elections also involve the entire nation (well more like half of it really), but juries are ultimately demographic samples of the smaller political subdivisions of this larger democracy.

However, the underlying point is that juries involve taking a sample of the community and involving them in a form of participatory democracy in a way that seeks to reduce many of the arguably negative motivations people use in our larger electoral democratic system.

Of course, throughout history juries have sometimes been the source of much injustice. Indeed, no person of color can ever fully disregard the historical experience of all white male juries swayed by virulent racism to convict innocent men in criminal trials.

And yet, can you say any less or more of the racial fairness of our larger electoral democracy during this same period of time?

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Posted at 11:45 AM, Feb 07, 2007 in
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