The Civil Jury and American Democracy

Abstract

Herbert Bernstein, like others who admire European institutions, never acquired a taste for American civil procedure. Having taught him precisely that course at the University of Michigan Law School in 1965-66, I always took this as a personal failing on my part. What Herbert and others of his persuasion are unable to appreciate is the central importance in the American scheme of government of the right to jury trial in civil cases. As a tribute to him, I will explain one more time why that institution is indispensable and why it explains other features of American government that many international observers, and not a few Americans, find objectionable. The importance of the institution is not measured by the number of civil jury trials, which is not great. It is, however, the right to jury trial that makes the rest of the constitutional scheme acceptable. And other institutional arrangements were structured around the concept of a democratic courthouse. In this essay, I will briefly account for how the civil jury came to America, why it is here to stay, and how other features of American civil litigation are linked to that central institution. My words are addressed in part to foreign lawyers who are not intimately familiar with American institutions.