"Yet the American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than that on the criminal side, but it is dying. It will never go entirely, but it is already marginalized."
Judge William G. Young said that, speaking to the Florida Bar at its annual convention in late June. (An article in Florida Bar summarizing the speech is here, linking to the transcript here, and thanks to Florida jury expert Phil Monte for the link to both.)
Judge Young, chief judge of the United States District Court for the District of Massachusetts, is no ordinary speaker. The words he chose in sentencing shoe bomber Richard Reid make as good an Independence Day reading as you're likely to find; and in an opinion that was widely praised, he held the federal sentencing guidelines unconstitutional before the Supreme Court's Blakely decision came down. Nor is he new to this topic. He published a much longer, footnoted version of the jury-system speech in the Suffolk Law Review as "Vanishing Trials, Vanishing Juries, Vanishing Constitution."
Is he right? Are we losing the jury system? Judge Young isn't the only one who says we are. It's clear that courts are holding fewer jury trials. Adam Liptak of the New York Times discussed the issue in late April, calling his article "Cases Keep Flowing In, but the Jury Pool Is Idle." (It's subscription, but it was reprinted in full by others, so a search should find it.) Liptak cited Judge Young's Suffolk article as well as Prof. Suja Thomas's arguments that summary judgment denies the right to jury trial, and Prof. Marc Galanter's work for the American Bar Association's Vanishing Trials project. (Prof. Galanter's 130-page report is here for ABA members.)
"Look what has happened."
Even among these voices, Judge Young's passion and his understanding of the relationship of judges and juries are extraordinary:
No country, in the history of the world, has turned to jurors more than the United States of America. No country. And look at what has happened. Look at what has happened. The fact that it was necessary to explain the law to real, average people who came in off the streets has worked an extraordinary empowerment on the judiciary of this country. The fact that we share the judicial power with juries has only made judges stronger, so that today the judiciary of the United States is the most independent and most envied judiciary in the world.
Why fewer jury trials? Judge Young concedes (as some wouldn't) that "[t]here is not, in the United States today a direct attack upon the jury system." Rather, he says, "difficulties are thrown in its way":
- Arbitration: "Do any of you trade on the New York stock exchange? You've given up your rights. Do you have long distance phone service? You've given up your rights. Do you use cell phones? You've given up your rights. Work for Circuit City or other major employers? You've given up your rights to trial by jury."
- Statutory preemption: "Congress passes ERISA and the Supreme Court reads preemption broadly and suddenly it's snapping up out of the state court all these consumer protection cases so long as the defendant is an insurance company."
- Resolution of cases by motion: "Page after page of these carefully reasoned adjudications with the reasons why we don't go to trial."
- Discovery: "The lawyers engage in contentious discovery that requires an enormous amount of attention, both from magistrates and judges."
He's right about all of that, of course, and it's beautifully said. But there's a factor missing here, and I think missing from, or underemphasized in, the leading discussion on this topic. More on this tomorrow.
(Photo by Zyada at http://www.flickr.com/photos/zyada/462780785/; license details there.)
