Attacks on the Civil Jury Hurt American Citizens

It appears that many Americans have forgotten how important the jury system is in the U.S.  We should remember that the civil jury has a constitutional function in our American system of government.  The jury is a structural element of our system of separated powers.  Unfortunately, the influence of civil juries has been greatly reduced in the last 30 years.

Americans sounded the alarm when the original Constitution was silent on the civil jury, and the Seventh Amendment–which protects the civil jury–was ultimately sent to the states with the Bill of Rights.  The civil jury, which provides a forum in which all citizens stand equal, remains an important political institution.  It distributes power in our divided government, vesting citizens with the authority to resolve disputes among themselves.  Under our system of government–and because of the Seventh Amendment, the civil jury is immune from the traditional exercises of political influence.  It provides security against corruption, which is extremely important and a protection for all American citizens.

The civil jury was designed to be a guard against the encroachments of “the more powerful and wealthy.”  Corporations exert massive influence over executive and legislative branch officials, through lobbyists, campaign contributions and super PACs.  But tampering with a jury is a crime.  A huge corporation doesn’t like being on an equal footing with a regular person in a forum it cannot influence with corporate power.  That is not a corporation’s accustomed state.  That’s why efforts to elect judges and influence judicial appointments have intensified in Corporate America.

One line of recent cases has seen the Supreme Court expand arbitration in ways that allow powerful commercial interests to divert litigants away from civil juries, even allowing arbitrators to adjudicate when an arbitration clause is unconscionable.  Supreme Court decisions also have departed from the simple and long-standing notice pleading standard (preferring to test complaints for “plausibility”) and have made it far harder for injured individuals to band together and proceed to a jury via class action.  The Supreme Court has also limited the civil jury’s discretion to impose punitive damages, concluding that they were too unpredictable for corporations.  That’s most difficult to comprehend since we have seen cases where corporations actually weighed the effect of punitive damages when deciding safety issues.

The decisions all restrict the civil jury in its constitutionally intended political function.  The founding fathers intended citizens, sitting as a jury, to decide disputes among fellow citizens.  Today, however, more and more disputes are diverted to corporate funded arbitrators, screened out by judges before they get to a jury, or not permitted to proceed in an economically feasible manner.  Even when cases do make it to trial, the jury’s authority to choose a remedy is cramped by new judicial control.  As a result, the civil jury exercises a lesser share of the “sovereignty of the people” and is less able to prevent “the encroachments of the more powerful and wealthy citizens.”

There are ways to restore the civil jury to its rightful place in our democracy, and have the Seventh Amendment stand equally beside other amendments.  The Supreme Court could find the Seventh Amendment jury right to be “deeply rooted in this nation’s history and tradition” and fundamental to our scheme of ordered liberty,” and thus “incorporate” it against the states under the 14th Amendment.  The court also could ask, for example:

  • whether a rule “chills” the exercise of the civil jury right (as it asks in the First Amendment context); or
  • whether only a knowing waiver of the jury right will be accepted (as is required in the context of the Fifth Amendment); or
  • whether the solicitude recently shown by the court to the Second Amendment should also be directed to the Seventh Amendment.

While at one time it seemed very unlikely, we could also see Congress act.  They could override most, if not all, of the Supreme Court’s recent decisions that have undermined the civil jury.  The public could pressure Congress into taking action and there is a strong movement underway to put pressure on Congress.  Bills to ban mandatory predispute arbitration, to restore notice pleading, to protect class actions and to enshrine the jury’s proper discretion regarding punitive damages all have been introduced.  Hopefully, they will receive broad support.  A breakwater built into our system of government by our nation’s founding fathers–the civil jury–is designed to stand firm against the tide of influence and money.  We allow it to crumble, or be disassembled, at our peril!