The previous post described the adoration of the jury because of its role in protecting substantive rights in England, and even more in revolutionary America. Juries played this role in specific types of cases: criminal prosecutions, and suits against government officials. But the worship of the jury that led to its enshrinement in state constitutions affected ordinary disputes between private parties as well.

What happened to the civil jury once the American Revolution had succeeded?

Many writers focus only on the jury in the founding era, when it was at its most glamorous, and ignore the sordid story of what came later. To sum it up: Starting soon after the Revolution, judges and legislators chipped away at the civil jury. Adversarial pressures made jury trial ever longer and more expensive. The merger of common law and equity was the final blow. In the late 20th century, the civil jury collapsed.

After independence, jury nullification — which had seemed so desirable when America was ruled by Britain — turned out to be deeply problematic in a self-governing republic. In the American republic, the people elected representatives to make and enforce the laws. Not only that, but the laws were made in accord with carefully designed mechanisms specified in constitutions, themselves ratified by the people or their representatives.

Why should 12 persons have the right to nullify laws made in this manner?

And yet, nullify they did. In the new republic, state juries were well known for sympathy toward debtors and verdicts against creditors. In effect, they nullified the laws of contract. (Some state legislatures passed pro-debtor legislation, but still debtors relied heavily on the sympathy of juries.) [Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minnesota L. Rev. 639, 673-703 (1973); Matthew P. Harrington, The Economic Origins of the Seventh Amendment, 87 Iowa L. Rev. 145, 173-74 (2001).] James Madison was alarmed, and worried that these verdicts would discourage the investment that the new republic so badly needed.

When the convention met in Philadelphia in the summer of 1787 to draft the federal constitution, all members agreed it should include a right to jury trial in criminal cases. That right is found in Article III, Section 2. But many members did not think a right to civil jury trial should be included, and it was not.

Alexander Hamilton explained why, in The Federalist No. 83. His main argument was that certain types of civil cases were not appropriate for resolution by juries. Equity cases, among others, required a large amount of discretion and were often too complicated and lengthy for trial by lay jurors. Drawing a line between cases suitable for a civil jury and those that were not was too difficult in a constitution.

Hamilton wrote that the strongest argument in favor of civil juries was that the judiciary might be corrupt. He observed, however, that jurors could be corrupted as well as judges. We have seen that the problem of bribery is endemic to the jury system. Blackstone, in a rare lucid remark about the civil jury, made a related argument that juries were useful in countering the class biases of judges. Jurors, of course, may have their own biases, among other problems. I’ll address these arguments further in the final post.

Despite Hamilton’s arguments, the anti-federalists were outraged at the lack of a civil jury right in the federal Constitution. Patrick Henry of Virginia and others made clear their concern for debtors facing judges without juries to protect them. [Renée Lettow Lerner, The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial, 22 William & Mary Bill of Rights Journal 811, 827 (2014).] Fearing that a second constitutional convention might be called if anti-federalist concerns were not addressed, a reluctant James Madison drafted what became the Seventh Amendment. It guaranteed the right to jury trial in federal court “in suits at common law” and protected jury verdicts from being reexamined by federal judges other than “according to the rules of the common law.” These formulations have led to much dispute.

Judges regularly praise juries, but in practice they have steadily curbed rights to civil jury trial. Although almost all the other provisions of the federal Bill of Rights have been incorporated against the states — including the right to criminal jury trial — the right to civil jury trial in the Seventh Amendment has not. The states are free to determine the existence or extent of civil jury trial in their courts.

As soon as the founding era was over, judges and legislators began limiting civil jury trial. At the founding, the jury had been, as Tocqueville famously described it, a political institution. In the 19th century, however, many Americans in all areas wanted to encourage commercial development through predictable, uniform legal rules. Use of civil juries could lead to unlawful, unpredictable results that undermined the authority of legislatures and courts, and thwarted the ability to plan and carry out actions.

The jury began to be regarded more as a judicial institution than as a political one, and as a judicial institution, the jury fell short. Judges, legislators and members of state constitutional conventions pointed to many problems with adjudication by civil jury trial. As the American population and economy expanded, the number of civil cases rose. Meanwhile, jury trial became ever longer, more expensive and prone to delays. The development of the lawyer-driven, adversarial system in America had led to time-consuming changes such as extensive voir dire (questioning to select jurors) before trial, detailed rules of evidence, and exhaustive cross-examination. All greatly slowed down trials. (Extensive jury selection by lawyers also undermines the rationale that the jury represents the voice of the community.) The remedy of new trial for jury error, discussed in yesterday’s post, added to the expense and inefficiency.

Furthermore, there was concern that jurors acted out of passion or bias, or failed to understand complicated facts and law. The latter concern grew as commercial transactions and technology became more complicated. (This problem is even more potent today.) Judges were increasingly unable to aid juries in understanding cases because in many states they lost the power to comment on evidence.

By 1848, the chief justice of Georgia, Joseph Lumpkin, explained in an opinion about the right to civil jury trial that “it is notorious, that modern law reform, both in England, and in this country, seeks, amongst other objects, to dispense, as much as possible with juries.” [Flint River Steamboat Co. v. Foster, 5 Ga. 194, 207 (1848).]

Lumpkin and many other judges, together with legislators, approved wholeheartedly of this program. They increased the use of juryless summary proceedings and courts, allowed parties to waive civil jury trial, approved increases in jury fees, expanded the use of directed verdict (a procedure that allowed a judge to give a binding instruction to a jury), and permitted judgment notwithstanding the verdict. [Renée Lettow Lerner, The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial, 22 William & Mary Bill of Rights Journal 811 (2014); Renée Lettow Lerner, The Rise of Directed Verdict: Jury Power in Civil Cases Before the Federal Rules of 1938, 81 George Washington Law Review 448 (2013).]

The final blow to the civil jury was the merger of the systems of common law and equity. This was done first in New York, in the Field Code of 1848. A member of the commission that drafted the Field Code explained that if you want to merge law and equity and have only one type of procedure for all cases, equity must prevail. [John H. Langbein, Renée Lettow Lerner, and Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions 383 (2009). ] The reason is that only equitable procedure can handle complex cases. [See post 2.]

Modern civil procedure — like equity — permits flexible claims, joinder of multiple parties and claims, and complex factual disputes. None of these were previously thought suitable for juries.

Most of all, modern litigation is driven by the existence of extensive pretrial procedures to discover facts, called discovery. Discovery is all drawn from equity; there was virtually none at common law. The Federal Rules of Civil Procedure of 1938, which merged law and equity for the federal system and served as a model for the states, vastly expanded the scope of discovery compared with any previous system. The scope of discovery has only increased since then.

Discovery has grown so expensive that many parties settle without engaging in any of it, or only a bit, to avoid the costs. They settle with little knowledge of the facts. Recall from the first post that the American Rule generally does not permit the winner of litigation to recover costs from the loser. Judges typically play a passive role in discovery, allowing parties to inflict great costs on each other.

In theory, this discovery is tacked on the front of a jury trial — the one remaining legacy of the common law.

In practice, that jury trial almost never happens. If the parties are willing to bear the time and expense of discovery, they often do find some relevant facts. [John H. Langbein, The Disappearance of Civil Trial in the United States, 122 Yale Law Journal 522, 547-48 (2012).] They don’t want to go over those facts again in an expensive jury trial, with an unpredictable outcome. They settle immediately after discovery or move for summary judgment (a procedure described in post 1, again hugely expanded under the Federal Rules). If the judge doesn’t grant summary judgment, or grants it for only part of the case, they settle.

This is the fate of the civil litigation system. Since especially the New Deal, there is a large separate world of administrative litigation, to enforce government regulations, run by administrative law judges (ALJs) and others, without juries. [Philip Hamburger, Is Administrative Law Unlawful? 143-55, 227-76 (2014).]

The civil jury is dead. What do we do now? That is the topic of the next post.