September 11, 2012
Solomon on Civil Juries
Jason Solomon (W&M) has posted to SSRN The Political Puzzle of the Civil Jury. The abstract provides:
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.
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Juries probably enhance the "lottery" nature of tort resolution. Most juries are conservative in tort cases. So most plaintiffs are not going to win in front of a jury. And cases with a lot of potential damages tend to settle before they get to the jury. So in general, only the "iffy" cases make it to trial. Or the ones where a resolution can't be reached before trial. Tort cases in front of juries are expensive and highly inefficient. Insurance companies figured this out years ago and have tried to supersede the jury system with schemes like "no fault" among others.
Not withstanding the Seventh Amendment, it is possible to convert pure tort into an administrative system. Worker's Comp is a good example. The awards are less. But everyone gets something for the most part. And medical is generally covered. The system is more efficient, but can be manipulated by state level politics.
If we look at something like medical malpractice, it is more difficult to envision an administrative paradigm. About 7% of adverse outcomes get filed as medical malpractice cases. So in an administrative system where the barrier is low and the rules of evidence are sloppy, there could be a floodgate opened of new filings. It could get very expensive on a lot of fronts.
Posted by: Tony Francis | Sep 14, 2012 10:39:10 AM