It's a Saturday afternoon in October, 2012. You're sitting on your shady front porch in Atlanta, or maybe Albuquerque, opening the mail. It's a warm fall day, a perfect day in fact -- until you spot it. The envelope. A jury summons. You've read about this new system, but hoped somehow you'd escape it. You tear it open nervously, and your heart sinks when you see you've been called to jury duty . . .
. . . in Milwaukee, Wisconsin, in February.
National jury service. It's a bold response to a big issue, and it's the proposal made in Prof. Laura Dooley's paper, "National Juries for National Cases: Preserving Citizen Participation in Large-Scale Litigation." Prof. Dooley teaches at Valparaiso University Law School; her paper is to be published in New York University Law Review next year, and it was posted in draft last week on SSRN.
"A national case demands a national jury."
The problem -- at least tort defense lawyers call it a problem, but it can hurt plaintiffs too -- is that a single case in a single courtroom can decide the fate of hundreds or thousands of parties, either because many cases are joined in that one case or because that case is a "bellwether" that will direct the others. The perceived unfairness of this threatens the jury system itself, as Prof. Dooley explains in the abstract:
Procedural evolution in complex cases seems to have left the civil jury behind. The trend toward centralization of cases pending on the same topic in one court results in cases of national scope being tried by local juries; this reality is a catalyst for forum shopping and a frequent justification for calls to eliminate jury trial in complex cases altogether.
Prof. Dooley thinks the solution is clear, if we can only do it:
When a case of national scope is being litigated, the proper jury pool is not local (as in state court, where jury pools are typically defined along county lines), or even regional (as might be true in a federal district); a national case demands a national jury, drawn from a national pool.
Hey, what about . . .
That's on page seven of a 59-page paper. In the rest, Prof. Dooley tackles the questions and objections:
- What kind of case would have a national jury? Large multidistrict and class action cases, she argues, but also the "bellwether" cases. We might even use the same group of jurors in a series of separate, similar tort cases: "An argument sometimes used to denigrate jury trial in general is that a judge sees more cases across a career and has a better sense of how individual cases fit within that overall framework—a national jury that sat for a number of cases (on something like a grand jury model) could do the same. "
- Is it constitutional, and should we do it at all? Prof. Dooley argues yes to both. The jury system is weakening under the strain of these cases, she believes, and national jury service might reclaim it. "Without attempting to undertake a wholesale defense of the institution of the civil jury, a task already ably performed by many, I will argue here that in cases of national scale jury decisionmaking may well play a particularly important role in legitimating difficult verdicts. "
- Can a national jury be diverse enough? "The difficulty, of course, will be assembling a national jury pool representative of a country as large and diverse as the United States," Prof. Dooley says. "Using congressional districts might be a starting point, since those would comprise jural districts that have already withstood both constitutional and statutory scrutiny under the election laws."
- But then how big should the jury be? Bigger than they are now, probably. "[T]he discussion may well have to shift to how large a group can be assembled without becoming unwieldy. The question of optimal size for a national jury charged with consideration of a complex case, say a class action for damages caused by an allegedly defective product, should not be constrained by a rigid allegiance to the traditional size of juries." This in turn raises issues of voting mechanisms and unanimity, which Prof. Dooley addresses as well.
Each of these questions is provocative; the one that caught my attention most was "how large a group can be assembled." If you've done even a few mock trials, you know that large groups deliberate differently from small ones, in ways both "good" and "bad." (Jurors who are merely quiet in a small group are utterly silent in a large one, for example. On the other hand, large juries remember information better, and their verdicts are less "variable.") When does a group get so big that we have to stop calling it a jury and start calling it an electorate?
"Just a matter of cost"
As I read through all this, one question kept nagging at me, the biggest drawback of all. How will anybody get a national jury to come to Milwaukee in the winter? We can do it if we're determined, says Prof. Dooley at the end:
Other logistical concerns largely would be just a matter of cost—transportation, lodging, etc. Certainly the technological advances that have impacted other areas of procedure—discovery being a prominent example—could be brought to bear to alleviate some of the cost and inconvenience. In any event, our willingness to grapple with logistical problems and their possible technological fixes is a reflection of our commitment to lay decisionmaking in civil cases. Merely dismissing out-of-hand the possibility of making a national jury work plays into the agenda of those who harbor deep-seated distrust of such lay decisionmaking.
I have to admit she lost me here, although the final version of the paper may expand on the point. Are jurors going to hear the evidence on remote video transmissions, and gather together only when it's time to deliberate? Or will they review written submissions on their own time, the way three-judge factfinding panels in Japan do now? These questions aren't just logistical; "technological fixes" like that could leave us without a jury at all, at least one we'd recognize by that name today.
On the other hand, techology might be easier than actual travel. Faith and vision might move mountains, and the Milwaukee County Courthouse is beautiful, but it's hard to picture jurors from around the country packing their bags to spend the winter here.
(Photo of Milwaukee's December 1, 2006 blizzard, which shut down the town, by Purple Slog at http://www.flickr.com/photo_zoom.gne?id=311606855&size=s; license details there. That's my office building on the right.)