Expanding the Search for America's Missing Jury

Abstract

Professor Suja Thomas offers a novel approach in her new book, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries. She begins by recognizing the jury as a constitutionally mandated institution possessing specific powers and limitations in relation to the executive, legislature, and judiciary. She then explains how these traditional government actors have gradually usurped the jury’s unique powers for themselves and so diminished the jury’s constitutional import. Juries are vanishing, then, because the other actors have emerged in their stead. As a solution, she proposes recognizing the jury as a “branch”— a coequal to and a significant check on the traditional branches (p. 5)—and offers a doctrinal approach she calls “relational originalism” to assure this position (p. 8). While The Missing American Jury provides an encompassing look at the jury’s decline, it is not complete. In the introduction, Professor Thomas explains her decision to omit arbitration and settlement from the discussion, choosing instead to focus only on “procedures imposed by the government to which parties do not consent or procedures such as plea bargaining to which a party may unwillingly consent” (p. 3). This omission is a rare misstep. The emergence of binding arbitration and private ordering of public adjudication has tracked and contributed to the decline in the civil jury’s constitutional esteem. The legislature and the judiciary have removed from the jury and vested it in private parties’ hands. In so doing, they have allowed powerful social and economic actors to sideline the civil jury and have shielded their own behavior from public scrutiny. These developments in private civil procedure are a necessary part of the discussion. This Review incorporates private procedure into Professor Thomas’s explanation for the jury’s disappearance. Part I analyzes Professor Thomas’s central premise that the jury has fallen in constitutional esteem due to power grabs by the traditional actors. It also considers her proposal to fill the doctrinal void that has allowed this decline. Part II provides a historical overview of the emergence of private procedure and stresses that this development mirrors those power grabs reviewed in the book. Finally, Part III applies Professor Thomas’s relational originalism doctrinal approach to private procedure.