Winter Newsletter 2007

Tort Reform Part II: Preserving the Right to Trial by Jury

In the debate about tort reform, much criticism has been leveled against the jury system. Advocates of tort reform increasingly want to restrict the role that juries play in resolving disputes between parties. Jurors drawn from the community, they maintain, are not competent to decide the often complex issues of fact that are the subject of today's litigation. Too often, critics say, they are swayed by emotion or yield to the impulses of sympathy or prejudice. "Blue ribbon" panels or judges are often touted as a superior way to resolve disputes.

Before we consider abandoning the right to trial by jury, however, we do well to review a little history. Trial by jury is not a recent phenomenon. It dates back over a thousand years, and its use has been documented in a variety of civilizations. The right to trial by jury has been particularly prominent in the American system of law and justice. When the Founders enumerated their grievances in the Declaration of Independence, England's deprivation of trial by jury was in the forefront of their complaints. George Mason famously refused to sign the Constitution unless the right to trial by jury was made explicit. Its importance is highlighted by the fact that the right to trial by jury was expressly included in the Bill of Rights. The Seventh Amendment specifically provides, "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved..." Thomas Jefferson made clear the value he placed on juries when he said, "I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its Constitution."

Our Founding Fathers recognized that the collective judgment of ordinary people, while not perfect, is the most reliable means devised by man of resolving conflicts in America's courtrooms. Here are some of the advantages of the jury system:

• A jury is made up of local citizens, men and women from the community who are in the best position to evaluate how the conduct at issue compares with the standards of the community in which they live.
• The composition of the jury is not known in advance of the trial, thus reducing the likelihood of undue influence being exerted on the jurors from either side.
• Jurors cannot be paid by either side. They can only consider evidence that meets a certain threshold of reliability and can only consider testimony given under oath. They cannot be approached by one party outside the presence of the other party. (Compare this with the legislative process, where access to the decision maker often depends on contributions having been made by an interested party; testimony is frequently not given under oath; no reliability threshold for evidence is required; and interested parties usually lobby the decision maker outside the presence of the other interested parties).
• Jurors commonly complete their service in just a few days or weeks and then return to their private lives. Judges are often on the bench for many years, and in some cases for life, leaving them vulnerable to ongoing efforts to influence their decisions.
• It may be easy to find one errant adjudicator who is out of touch with their community (such as a judge). It's much harder to find 12 ordinary citizens who will come to an outrageous result, and even if they do, there are mechanisms in place to correct such a result.

In spite of all of these advantages, there is a widespread effort underway to take away our right to a trial by jury. Those pushing this wrong-headed agenda claim that it will reduce the costs of healthcare and eliminate "frivolous lawsuits." But what they are really saying is, "We don't trust our fellow citizens to resolve disputes. Lobbyists and politicians know better." And truth be told, the agenda behind the agenda has less to do with lowering the cost of healthcare and eliminating frivolous suits and more to do with immunizing wrongdoers from the consequences of their behavior. The question is, will we trust our fellow citizens along with the Founders and a thousand of years of history, or will we trust professional politicians and the lobbying corps to look out for our best interests?

Scrapping the jury system will not bring about the lofty goals the tort "reformers" claim to be seeking. The only sure-fire result of such action is that the outcome of disputes will be decided in advance by politicians and the lobbyists of special interest groups that influence them. Is that justice?

There is a responsible way to bring about legal reform. We will be outlining a number of proposals for legal reform in future editions of Ideas in Action. In the meantime, however, we should be skeptical of any proposals that trample on the right to trial by jury that our Founding Fathers fought and died to preserve.

Center for a Just Society

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