Expanding the Search for America's Missing Jury

By Jolly, Richard Lorren | Michigan Law Review, April 2018 | Go to article overview

Expanding the Search for America's Missing Jury


Jolly, Richard Lorren, Michigan Law Review


EXPANDING THE SEARCH FOR AMERICA'S MISSING JURY

THE MISSING AMERICAN JURY: RESTORING THE FUNDAMENTAL CONSTITUTIONAL ROLE OF THE CRIMINAL, CIVIL, AND GRAND JURIES. By Suja A. Thomas. New York: Cambridge University Press. 2016. Pp. ix, 251. Cloth, $99.99; paper, $34.99.

INTRODUCTION

It may come as a surprise to more than a few readers to learn that America's juries are disappearing. Whether it is the murder of Caylee Anthony, the libel of Hulk Hogan, or the shooting of Michael Brown, media outlets dedicate extensive coverage to criminal, civil, and grand juries alike.1 But reports of the jury's life are greatly exaggerated. Juries today determine fewer cases than at any other point in the nation's history. For instance, in 1962, the year when most judicial statistics become available, federal juries decided 8.2% of criminal cases and 5.5% of civil cases.2 Yet by 2015, these numbers dwindled to just 2.04% of criminal cases3 and a paltry 0.76% of civil cases.4 Every state court across the country has seen a commensurate decline.5

This decline is alarming. Juries allow lay citizens to check judges' work for corruption, state aggrandizement, and application of grounded normative standards.6 They have thus been described as the "lower judicial bench" in a bicameral judiciary7 and as "the democratic branch of the judiciary power."8 Moreover, jury service offers one of the few opportunities for citizens to be directly involved in the administration of law. As Alexis de Tocqueville described, it is "a free school" that "instill[s] some of the habits of the judicial mind into every citizen."9 Perhaps unsurprisingly then, trial by jury is the only right to appear by name in all three of the nation's founding documents: the Declaration of Independence, the Constitution, and the Bill of Rights. The disappearance of America's juries should thus give us pause and command our scrutiny.

Many authors have attempted to explain the jury's decline. Some focus on the adoption of the Federal Rules of Civil Procedure and Federal Sentencing Guidelines, which, coupled with advancements in evidence preservation, have rendered the truth-finding role of jury trials mostly redundant.10 Others emphasize the costs and unpredictability of jury trials, observing that the resources and risks attendant to jury trial make it an inefficient form of dispute resolution.11 Finally, some point to the rise of managerial judges who view their role as to guide parties toward settlement rather than to preside over jury trials.12

Professor Suja Thomas13 offers a novel approach in her new book, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries. She begins by recognizing the jury as a constitutionally mandated institution possessing specific powers and limitations in relation to the executive, legislature, and judiciary. She then explains how these traditional government actors have gradually usurped the jury's unique powers for themselves and so diminished the jury's constitutional import. Juries are vanishing, then, because the other actors have emerged in their stead. As a solution, she proposes recognizing the jury as a "branch"- a coequal to and a significant check on the traditional branches (p. 5)-and offers a doctrinal approach she calls "relational originalism" to assure this position (p. 8).

While The Missing American Jury provides an encompassing look at the jury's decline, it is not complete. In the introduction, Professor Thomas explains her decision to omit arbitration and settlement from the discussion, choosing instead to focus only on "procedures imposed by the government to which parties do not consent or procedures such as plea bargaining to which a party may unwillingly consent" (p. 3). This omission is a rare misstep. The emergence of binding arbitration and private ordering of public adjudication has tracked and contributed to the decline in the civil jury's constitutional esteem. …

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