Why Lawsuits Are Good for America: Disciplined Democracy, Big Business, and the Common Law

By Carl T. Bogus | Go to book overview

4
Disciplined Democracy and the
American Jury

Legends

The jury system was both an ancient and a central feature of the common law heritage. Indeed, it is not too much to say that within the common law world, the jury is one of the institutions most closely associated with the development of civilized society.

Scholars debate whether the jury system was brought to England by William the Conqueror in 1066 or whether it previously existed in some form in England.1 Either way, before trial by jury, disputes in England were resolved by trial by ordeal, trial by battle, or a process called “wager of law,” where a litigant produced a prescribed number of friends of specified social rank to take an oath “with united hand and mouth” on his behalf.2 Trial by ordeal was not fully extinguished until the church condemned it in 1215, leaving the jury system as the sole means of adjudication. By the time of the founding of the American Republic, therefore, the jury had been an element of the common law system for more than five hundred years.

Then relatively recent events caused the jury system to have a special resonance for the American founders. Four cases bear mentioning, not because they were all genuine legal landmarks but because the stories about them had become allegories that shaped the founders' thinking about the American legal system they wanted to create.

The first, known as Bushell's Case, occurred in 1670. William Penn and William Mead preached a Quaker sermon to an audience numbering several hundred in a public square in London. Quakerism was considered an effrontery to the king and to the Church of England, and consequently Penn and Mead were prosecuted for disturbing the peace. There was no question about what Penn and Mead had done; the only issue was whether their conduct constituted a crime. The judge instructed the jury

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Why Lawsuits Are Good for America: Disciplined Democracy, Big Business, and the Common Law
Table of contents

Table of contents

  • Title Page v
  • Contents ix
  • Acknowledgments xi
  • Introduction 1
  • 1: Why Tell Tales? 6
  • 2: War on the Common Law 22
  • 3: The Third Branch of Government 42
  • 4: Disciplined Democracy and the American Jury 66
  • 5: The American Common Law System 102
  • 6: Who Regulates Auto Safety? 138
  • 7: The Three Revolutions in Products Liability 173
  • 8: The Common Law and the Future 197
  • Notes 221
  • Index 259
  • About the Author 265
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