A dominant factor motivating discussions of the jury is the factor of bias: Identifying it, striking the worst of it, and adapting to the the portion that remains. But if bias stems from the facts of being human, developing experience, and having attitudes (and it does), then there is no reason to believe bias is confined to the jury box. Indeed, there is ever reason to believe that it ascends to the bench, and persists there in a form that is far harder to strike. If bias can influence the randomly generated panel of citizens, it can also infect a single individual with a long-term appointment. Law school and legal experience doesn't convey immunity to bias, and is more likely to generate biases on their own. Judicial bias is arguably becoming an even greater problem over time, as we increasingly move toward elected judges with looser and looser restrictions on campaign finance and campaign speech. There is now a fair amount of data quantifying the influence of this bias, and traditional checks against it seem to be generally ineffective. Requiring judges to recuse themselves in the event of a real or perceived conflict is a self-policing tool that is most likely to fail when the bias is greatest. Judges could have a blind spot for their own bias, or they could have a vested interest in deciding exactly the kinds of cases that motivate contributors and mobilize public opinion. And the harms of that potential bias are greater now that judges decide the overwhelming number of cases. With less than one percent of state court cases ending in a jury trial, more are resolved using procedural tools that allow the judge, not the jury, to be the final decision maker.
In response to this situation, many have nostalgically called for a return of the days when the jury was the main way of resolving civil disputes. Many of those calls have been light on the details of exactly how this return could be accomplished. One recent article from Dmitry Bam, Associate Professor at the University of Maine School of Law, however, contains a novel idea that is worth thinking about. The article, "Restoring the Civil Jury in a World Without Trials," (Bam, 2016) proposes the use of "Hybrid Judicial Panels," which consist of a judge along with a small number of jurors who would decide many of the determinative motions that are now decided by judges alone. The solution is originalist in hewing to the reasons that motivated the framers to embrace the jury in the first place, while also modern in attempting to adapt to the realities of modern pretrial procedure. The likelihood of implementing a solution like that seems small, but at the same time, judges are powerful and often all it takes to implement a reform is a single judge who is open to experimentation. Independent of its likelihood of adaption, however, the idea is worth discussing just for what it says about judges, about juries, and about the state we're in.
Here are four thoughts drawn from the article. They're worth thinking about and contribute to our assessment of the role and future of the jury.
Yes, the Jury Was Meant to be the Most Important Check on Judicial Bias
In the early days of our republic, civil trials were common and cases decided by judge's rulings were rare. Even settlement was uncommon, and arbitration was for all practical purposes nonexistent. Jurors decided nearly all civil disputes, and the reason for that was the colonists' fresh experience with colonial British judges, often biased in favor of the crown or in favor of their wealthy friends. "For our forefathers," Bam writes, "the solution was not recusal. Instead, the founding generation looked to the people themselves to check judicial bias. They inserted the people directly into the judiciary to control judicial corruption and bias from within. the people, serving on juries, would act to hold judges accountable, and ensure that judges lived up to the principles of the Constitution. For them, the jury was the quintessential bulwark of liberty -- a way for ordinary people to stand up to government officials, including judges, and to ensure judicial impartiality." That is the reason why the right to trial by jury was the only right protected in every state constitution in the country's founding era.
But No, the Jury Does NotFunction as a Check Now
Obviously, with such a small percentage of cases being decided by juries today, they cannot serve as a check on judges. Bam continues, "The civil jury as we have come to know it is powerless and largely obsolete because, in modern civil litigation, judges alone decide most cases -- at least the ones that don't settle -- long before they reach the jury, and sometimes, as with post-verdict judgment as a matter of law or remittitur of damages, even after the jury has acted." Today's jury will only receive a case after it has been thoroughly vetted and narrowed by a judge. The balance of power has shifted overwhelmingly from lay juries to professional judges, and rather than juries being a tool to limit what a judge could do, it has become very much the opposite.
And Yes, Judges Are Biased
As documented in Bam's article, the U.S. leads the world in elected judges. In 39 states, judges face the electorate in order to stay in office, and 80 percent of all trial judges, 90 percent of state court judges, are elected. Those elections are often non-partisan, or confirmatory elections after appointment, but that doesn't relieve the judges of having to raise money and campaign. Spending in those elections still pales in comparison to some other statewide or national elections, but it is catching up, and for many judges, dealing with parties who are also donors is becoming common. Bam cites a study of the Pennsylvania Supreme Court, for example, showing that nearly two-thirds of the cases the court heard included at least one party, lawyer, or firm who contributed to at least one of the judges. Beyond that direct entanglement, there is also the more general consideration of what would make the electorate happy, or what would keep the judge from becoming a target in the next election. As justice Otto Klaus, "There's no way a judge is going to be able to ignore the political consequences of certain decisions, especially if he or she has to make them near election time. That would be like ignoring a crocodile in your bathtub." Bam shares data indicating that judges are measurably biased toward interests that have helped in past elections or could help in future elections.
But No, Elections Aren't the Only Sources of Bias
Professor Bam's article focuses on elections as the primary source of judicial bias. That is important, but the reality is also that the judge is a human being. As a human, with perceptions shaped by legal training and years of experience, the judge is likely to carry strong attitudes which, on a case by case basis, will predispose the judge toward some cases, parties, and arguments and away from others. Those are not generally the kinds of bias that would lead a judge to consider recusal, but they are every bit as important from the perspective of advocacy. As a judge gains experience, she is highly likely to see the world differently from the average person, and even differently from the average judge. That bias provides another reason for Bam's Hybrid Judicial Panel: It prevents the idiosyncrasies of one individual's experience from holding too much sway. In addition to providing another argument for Bam's proposal, the inevitability of judicial bias also provides a good reminder to analyze your judge just as you would your jury, and think of ways to persuasively adapt to and motivate your judge, just as you would your jury.
As a contribution to the dialogue on what to do about the vanishing jury,Dmitry Bam's proposal is refreshing: It acknowledges that we aren't likely to turn back the clock on the extensive role judges play in deciding cases without trial, or on elected judges and unrestricted campaign speech and finance, and it creatively posits a role for juries in the current system in deciding aspects of pretrial issues that depend on a factual determination. It might be too optimistic, for example, in assuming that judges wouldn't exert an undue influence on their citizen juries, but that is an implementation detail potentially solved by the jury deliberating independently on at least some issues. Even if the hybrid panel is likely to be influenced by the judge, a larger and more diverse group is still less likely to perpetuate systemic bias. The proposal, the author concludes, "reintroduces the jury into American civil jurisprudence, and allows the jury to serve the bias-checking role it was intended to serve."