Academic journal article Duke Journal of Comparative & International Law

The American Civil Jury for Auslander (Foreigners)

Academic journal article Duke Journal of Comparative & International Law

The American Civil Jury for Auslander (Foreigners)

Article excerpt


In an important essay on comparative analysis of civil law, Herbert Bernstein drew attention to the risks of an author misunderstanding procedural law when he or she lacked a fundamental, system-neutral conceptual framework of a country and lacked first-hand experience with the various laws of that country. (1) Herbert and I occasionally talked about this problem of misunderstanding regarding the American civil jury. In this special issue devoted to the memory of Professor Bernstein, Paul Carrington has placed the American civil jury into its political context. (2) This Article complements Professor Carrington's Article by addressing the empirical issues related to the actual performance of the American civil jury and the constraints that the legal system has developed to correct occasional errant decisions by lay adjudicators.

Legal practitioners and scholars whom I encounter in my travels outside the borders of the United States frequently challenge me to explain the "crazy," "outrageous" system by which we allow groups of untutored lay persons to decide civil disputes. (3) Invariably, they bring up the recent McDonald's case (4) in which a civil jury in New Mexico awarded a woman $160,000 in compensatory damages and $2.7 million in punitive damages just because she spilled coffee on herself. (5) My inquisitors are frequently surprised to learn that for years McDonald's had kept its coffee many degrees hotter than home-brewed coffee or the coffee of its competitors; that for over five years it had been aware of the problem of serious burns resulting from the coffee through over 700 complaints but had never consulted a burn specialist, reduced the temperature of its coffee, or warned consumers; and that the seventy-nine-year-old woman who was injured suffered second and third degree burns to her private parts. (6) They are also surprised to learn that the plaintiff had tried to settle the suit for a much more modest amount before trial, initially around $20,000 to cover her medical expenses, and that the jury's punitive damage award was equal to two days' worth of the McDonald's corporation's profits from selling coffee. (7) Finally, almost everyone is ignorant of the fact that the trial judge subsequently reduced the punitive damage award to $480,000 for a total award of $640,000, (8) and that the case was later settled for an undisclosed, presumably lesser, amount. (9)

One source of misunderstanding in the McDonald's case is incomplete media reporting about the details of the case. This problem is endemic with media coverage of jury awards. A number of studies have carefully documented the fact that mass media newspapers and television tend to report jury awards selectively, focusing on large awards, ignoring small awards and defendant verdicts, and not providing complete details about issues put to the juries or matters preceding trial or following the jury verdict. (10) In addition, industry groups generally opposed to the tort system frequently distort information about jury awards in order to further their political agendas. (11) Moreover, some legal commentators who have made claims about the legal system (12) may be less than informed about the empirical realities of jury behavior.

I do not suggest that the American civil jury is a perfect institution. Jury decisions are sometimes questionable, but systematic empirical research examining their performance according to various criteria and in the context of the judicial constraints and other dynamics of the legal system presents a picture quite different from public perceptions both within the United States and abroad.

This brief Article does not present a comprehensive survey of empirical research. Rather it highlights research that addresses some of the most misunderstood aspects of the American civil jury system. The Article first discusses research bearing on jury performance, followed by a discussion of the jury system as it is embedded in the broader context of procedural law and practice. …

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