Imagine you are visiting your old college and observe: There only are mandatory courses, with few exemptions being granted.
Students have no real choice in what classes to take. Their interest and capabilities are not generally taken into account. They are
given only minimal information about the content and structure of a class. Typically they are told no more than, say, that it is a
course in inorganic chemistry or European history, likely to require five to eight weeks, and meeting all day, five days a week.
The instructor in charge provides little in terms of orientation and explanation. He does not present a series of organized lectures.
Rather, he turns over the course to two or more advocates, who, in adversarial fashion, advance one-sided and contradictory
arguments regarding the facts, rules, and theories of the subject matter. The advocates are assisted by experts, whose testimony
also has a partisan hue. The course deals with a substantial number of specific issues -- many of them complex and technical --
for the comprehension and recollection of which the students will be responsible, and about which they will be examined. The
relevant materials are not introduced by issue-by-issue, in logical order, in temporal sequence, or in any other organized pattern, but
in a disordered and jumbled fashion.
There are no textbooks. The students are not permitted to ask questions, take notes, or discuss the materials among themselves or
with others. At the end of the course the instructor offers some (not very comprehensible) guidelines for how to think about the
materials and the advocates strongly urge the use of their favorite conclusions as answers for the approaching test. For purposes
of the final examination, the students are divided into groups of six or twelve and told to discuss the exam questions among
themselves. Each group must give a single set of answers. In the case of persistent disagreements, the group's responses are to be
decided by majority vote.
Since no notes have been taken during the lectures, all questions must be answered from memory. There does exist a transcript of
the class presentations, but the students do not receive a copy. They may ask that certain passages be read to them. This,
however, requires re-assembling all participants in the classroom, and the students learn quickly that repeated request of this
nature are not welcome.
The examination results are mixed. Some exam-groups do well, some produce incomprehensible answers, and some return clearly
erroneous responses. Who or what deserves the blame for the inadequate performances? The students? Would it be proper to
conclude on the present evidence that higher education, while a fine ideal, is a practical failure? And would it be proper to
conclude that it is an irredeemably flawed enterprise, and that colleges should be abolished?
It is difficult to imagine that anyone would answer YES to these questions. Yet, a substantial number of YES votes can be
obtained when equivalent questions are asked about juries and jurors. Such YES votes are not necessarily cast by persons
unfamiliar with the conditions of jury work and the great need for change. Rather, they are cast by individuals whose
jurisprudential theories do not value the participation of ordinary citizens in the adjudicative process, and who rank administrative
efficiency and fiscal parsimony far above popular government and democratic institutions.
To preserve at least a semblance of the common law trial jury -- which, it seemed, was guaranteed to us by the Sixth and Seventh
Amendment to the Constitution -- will continue to require extensive, persistent, and determined efforts. The calamities of
WILLIAMS V. FLORIDA and the other jury size and decision-rule cases, and the threat posed by appellate court decisions
denying trial by jury on grounds of a fictitious "complexity exemption," have served to
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activate jurists and scholars to defend and improve trial by jury. The book here reviewed is a major contribution to this endeavor.
The various chapters were prepared initially for a 1992 conference on the civil jury system, sponsored jointly by The Brookings
Institution and the American Bar Association. The majority consensus of the conference was that the civil jury trial should be
preserved, even on complex cases. The contributions included in VERDICT reflect this position. While none of the authors
regards the civil jury as a perfect institution, the tenor of the contributions is that it performs rather well -- whether we employ
absolute or comparative standards of evaluation. Indeed, given the conditions of jury service, juries perform much better than one
has any right to expect. Of course, there is room for improvement, and VERDICT presents many useful suggestions. Among
them are providing better access to jury trials, improving the ability of jurors comprehend and recall evidence and legal instructions,
and aiding the jury to formulate appropriate verdicts and awards. Attention also is given to such matters of concern as the various
types of cost associated with trial by jury, scheduling of juror time, the function of alternates, and the juror selection process. Only
one major reform possibility has been left unexplored by the present authors: the presentation of witness testimony in the form of
edited videotapes -- a consideration of which was called for particularly in the discussion of repetition, redundancy, and
out-of-order presentations. (289) The book has several distinct parts. After a brief introduction by the editor, there is a historical
treatment of trial by jury (Chapter 2), followed by two chapters presenting alternative sets of objectives for trial by jury and
evaluations of how well these objectives are being met in current practice. Chapters 5 through 8 deal with the attitudes toward trial
by jury held by lawyers, judges, litigants, former jurors, and the public at large, as well as with the current state of knowledge about
the work of the jury. Chapters 9 through 13 introduce most of the improvements noted above. Chapter 13 also contains the useful
reminder that (hypothetical or actual) bench decisions are NOT the only or even the most appropriate way to assess the
performance of juries. Judges also can err. The last two chapters are SUI GENERIS. Chapter 14 (to be discussed shortly)
focuses on the use of peremptory challenges; Chapter 15 is a discussion of various dispute resolution alternatives.
VERDICT does not mete out a one-sided account of trial by jury. The strengths and the weaknesses of the civil jury receive
attention. Possible negative as well as positive consequences of reform are carefully explored. A spirit of fair-mindedness and
generosity characterizes most of the book. VERDICT, of course, has its share of dubious assertions and arguments. There is the
resurrection of the jury-phobic tale that juries, above all, are responsible for the delays in civil litigation. (127-132) Strangely, this
view is advanced in the context of findings that "only 2 to 4 percent of the disputes were ever tried to juries," (128) and that "96 to
98 percent of disputes settle out of court." (131) The author comments on the second set of data by writing: "The only way to
significantly affect the level of litigation delay ... is to increase the rate of civil settlement." (131) A rate of 98 percent does not
seem to allow much of an increase, and one wonders how much more quickly cases will move through the courts when the final
"2 to 4 percent" of jury trials have been eliminated.
Some authors manifest an excessively sanguine outlook on the future prospects of trial by jury. The statement that "there is little
likelihood that the jury will be seriously altered ..." (319) flies into the face of the loss in many jurisdictions of the traditional
common law jury of twelve persons deciding unanimously. The author appears to be unaware of the attempts to create a
complexity exemption to trial by jury, as well as of the intention (reported in VERDICT) to deny to the jury the right to find the
facts of a case, when these facts involve legal concepts. (439-449) As is well known, the American trial jury once had the right to
decide factual AND legal issues. In most jurisdictions, the jury has been deprived of the prerogative to decide legal issues. The
new endeavor now seeks to divest the jury of a substantial part of its remaining competence: the right to
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decide the facts of the case. It also seems strange to discuss judicial suggestion that "there should be some limitation on the use of
juries in minor cases involving small sums of money," (378-379) without considering the language of the Seventh Amendment: "In
suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ..."
The minimum sum of twenty dollars, which surely should be increased, cannot be changed, it would seem, without a Constitutional
act. There is a lesson here that should be made explicit: exact dollar amounts should not be written into fundamental documents
intended for all times. Currency values change.
These, however, are minor quibbles. The real disappointment is the inclusion of Chapter 14: "Jury Service and Community
Representation." First, it is not well done. For example, the author ignores important distinctions, such as the GENERAL fitness to
be a juror (which is unrelated to race and gender) and the SPECIFIC fitness to serve on a particular jury (where this
unrelatedness cannot be taken for granted). Second, the language of the chapter is intemperate. While acknowledging that
peremptory challenges often are based on biases or preconceived notions about "nationality, business, religion, politics, social
standing, family ties, friends ... and many more [such] matters" that shape a person (481), and while regarding such exercises of
peremptories as harmless, or at least as tolerable, there is a dramatic shift in tone when preconceived notion about race or sex
come into focus. Thus, the author holds that "tides of racial passion swept through the courtroom when peremptory challenges
were exercised [against African Americans];" (465) indeed, that such peremptories are likely to have been manifestations of "race
hatred." (466) Using peremptories to strike African American women is said to subject these women "to the most virulent double
Third, the chapter is largely an exercise in advocacy. The author's real purpose is to argue that BATSON V. KENTUCKY should
be extended to WHITE WOMEN, because they also have been discriminated against. (473-474) The assumption is that whenever
a peremptory challenge is exercised against a woman, it is because of her sex. The author seems to find it inconceivable that a
woman might be challenged because she is a Presbyterian [challenging Presbyterians meets with the author's approval (478)],
rather than because she is female. The discussion culminates in the argument that peremptory challenges should be permitted
(without explanation) only when they are exercised against WHITE MALES: "If the juror [being challenged] is a white woman or
a person of color, a neutral explanation would be required." (481) White males are the only citizens who may be struck from a jury
solely for reasons of racial and sexual attributes. The reason that white males are denied the protection extended to everyone else
is that, as far as the author seems to know, no white men ever have suffered discrimination, whereas all white women and all
people of color invariably have been discriminated against -- a remarkably undifferentiated reading of American history.
The chapters are well written and the book has been competently edited. I found only one typographical (326) and one
grammatical lapse (356). It was an error of judgment, however, to convert true footnotes (containing important substantive
discussions) into endnotes. Since all chapters include a large number of notes, the necessity to move back and forth between the
pages is constant -- and thoroughly annoying. VERDICT is a significant contribution to the on-going discussion about the future of
the civil jury. The various chapters address not only the concerns of legal professionals and academics, but also of public policy
makers and interested citizens. It is a book that deserves the widest possible audience.