The American Civil Jury for Auslander (Foreigners)

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