The Civil Jury and American Democracy

Herbert Bernstein, like others who admire European institutions (1), never acquired a taste for American civil procedure. (2) Having taught him precisely that course at the University of Michigan Law School in 1965-66, I always took this as a personal failing on my part. What Herbert and others of his persuasion are unable to appreciate is the central importance in the American scheme of government of the right to jury trial in civil cases. As a tribute to him, I will explain one more time why that institution is indispensable and why it explains other features of American government that many international observers, and not a few Americans, find objectionable. The importance of the institution is not measured by the number of civil jury trials, which is not great. It is, however, the right to jury trial that makes the rest of the constitutional scheme acceptable. (3) And other institutional arrangements were structured around the concept of a democratic courthouse. In this essay, I will briefly account for how the civil jury came to America, why it is here to stay, and how other features of American civil litigation are linked to that central institution. My words are addressed in part to foreign lawyers who are not intimately familiar with American institutions. I. As most readers likely know, the common law jury emerged in the wake of the Norman Conquest of 1066. For those not familiar with the history of the institution, I briefly explain. The jury had roots in practices familiar to Anglo-Saxons brought to England from the continent a few centuries before the Normans arrived. (4) For the Norman conquerors, it served as a means of securing participation by the indigenous subjects of a new monarchy in their judges' application of the lash of royal power. It was thus a source of social and political stability. (5) The ancient jury took two forms; the grand jury was an assembly summoned from the hundred (a unit of local government) or the larger shire to consider whether in an instance stated by the Crown a crime had been committed and, if so, who should be prosecuted. The petty jury was a smaller group of men summoned from the community to decide the guilt or innocence of a person so charged, or, increasingly as time passed to decide civil cases. Juries sat in the common law courts administered by the royal judges sent out from Westminster to bring the king's law to every shire of the realm. The petty jury was increasingly used by the royal judges after 1215. In that year, a papal edict withdrew the clergy from the conduct of trials by ordeal, a method by which the royal courts had previously invoked supernatural forces to resolve disputed matters. (6) When that device was withdrawn, the Crown issued a writ acknowledging that his judges were on their own to devise an alternative. (7) No longer permitted to share the odium of decision with the divinity, the royal judges resorted to the jury as a standard feature of their process, thus substituting the community for the divinity as their partner in bearing the weight of moral responsibility for many of their decisions. Over the nine centuries in which the jury has been in use, it has been radically transformed. (8) Its one constant feature has been its status as a representative of the community being governed. Its one constant function has been to lighten the burden of moral and political responsibility otherwise borne by the judiciary, diffusing that responsibility through the community and thereby strengthening the courts. William Blackstone, so widely read in America, expressed the belief that the 18th century jury has been, and I trust ever will be, looked upon as the glory of the English law. (9) In its thirteenth century form, jurors were subjects drawn from the community in which the dispute arose; they were identified as the persons most familiar with the events in question who could thus decide a dispute on the basis of their personal knowledge. …