Civil Jury Research Articles

Why Federal Rule of Evidence 403 is Unconstitutional, and Why that Matters

Federal Rule of Evidence 403, described as the cornerstone of the entire Code, provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” It is an iconic rule. The Rule, along with its state law counterparts, is the primary trial management tool in the American court system. FRE 403 is the means judges use to keep trials “on track” and “on task,” by excluding “unquestioned” relevant evidence from the jury in order to promote accuracy and efficiency. The Rule also has a major constitutional problem -- one that has not even been identified, much less resolved. The Sixth and Seventh Amendments to the Constitution -- respectively guaranteeing the right to a criminal jury and a civil jury -- make it a right of all Americans that juries, not judges, decide what weight to give to evidence. Thus, constitutionally, there is no way to keep relevant evidence from the jury, at least not without a countervailing constitutional value. There is no countervailing constitutional value. Efficiency is not a constitutional value. Accuracy is not a constitutional value. One might argue that a rule premised on trusting judges more than juries to weigh evidence makes for better justice, but such a rule is at odds with the Framers’ decision. 19th Century evidence theorists were the first to propose efficiency or accuracy as a basis to exclude relevant evidence. This was decades after the ratification of the Constitution, and the adoption Sixth and Seventh Amendments. Yet neither these theorists, nor any judge or writer since, has ever addressed the possible constitutional barrier to the Rule.The implications of this conclusion -- that the desirability of efficient trials cannot justify declining to honor the constitutional prerogative of juries -- are potentially profound. Large swaths of federal jurisprudence -- both criminal and civil -- are grounded in making trials more efficient and accurate. If efficiency and accuracy are insufficient to overcome the prerogative of the jury, then potentially lots of rules are built on illusory foundations.

Nonincorporation

Very few rights in the Bill of Rights have not been incorporated against the states. In McDonald v. Chicago, the Supreme Court held that the Second Amendment right to bear arms, which the Court previously had decided did not apply against states, was incorporated. This decision left only three, what this Article terms, “nonincorporated” rights — the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right — rights that the Court previously decided do not apply against the states that remain not incorporated. After the decision to incorporate the right to bear arms, an important unaddressed question with far-reaching implications is whether nonincorporation is defensible under the Court’s jurisprudence. Scholars to date have viewed the Bill of Rights exclusively through theories of incorporation, including the theory of selective incorporation under which incorporation occurs if a fundamental right exists. This Article is the first to view incorporation from the perspective of a theory of nonincorporation. This theory could be simply the opposite of selective incorporation — that a right is not fundamental — or, it could be, that the Court has not incorporated rights for some other reason. This Article sets forth possible theories of nonincorporation, both prior to and after McDonald, and exploring their viability, concludes that no nonincorporation theory is defensible under the Court’s jurisprudence. The resulting incorporation of the nonincorporated rights would change the administration of justice in the states and also would make the Court’s theory of selective incorporation more justifiable.

Objectivity and the Culture of Personal Responsibility in Civil Jury Deliberations

Objectivity and the Culture of Personal Responsibility in Civil Jury Deliberations

Predicting Civil Jury Verdicts: How Attorneys Use (and Misuse) a Second Opinion

When predicting potential jury verdicts, trial attorneys often seek second opinions from other attorneys. But how much weight do they give to these opinions, and how optimally do they use them? In a four‐round estimation task developed by Liberman et al. (under review), pairs of law students and pairs of experienced trial attorneys estimated actual jury verdicts. When participants were given access to a partner's estimates, participants' accuracy improved in both groups. However, participants in both groups underweighted their partners' estimates relative to their own, with experienced attorneys giving less weight to their partners' opinions than did law students. In doing so, participants failed to reap the full benefits of statistical aggregation. In both groups, requiring partners to reach agreement on a joint estimate improved accuracy. This benefit was then largely retained when participants gave final individual estimates. In a further analysis, we randomly sampled estimates of various‐sized groups. The accuracy of mean estimates substantially increased as group size increased, with the largest relative benefit coming from the first additional estimate. We discuss the implications of these findings for the legal profession and for the study of individual versus collective estimation.

Law and the Emotions: The Problems of Affective Forecasting

Legal scholarship on behavioralism and the implications of cognitive biases for the law is flourishing. In parallel with the rise of such commentary, legal scholars have begun to discuss the role of the emotions in legal discourse. Discussion turns on the appropriateness of various emotions for the substantive law, and on attempts to model the place of the emotions in the law. Implicit in some of these theories, however - and explicit in others - is the assumption that emotions are predictable, manageable, and (for some commentators) under conscious control. This assumption is belied by psychological research on affective forecasting that demonstrates individuals' inability to accurately predict future emotional states, both their own and others'. Such inaccuracy has surprisingly broad implications for both substantive and procedural aspects of the legal system. The research findings also demonstrate the implausibility of some theoretical models of the emotions; if these models are flawed, then the normative conclusions drawn from them may be flawed as well. In this Article I review the psychological data demonstrating inaccuracies in affective forecasting, and spin out their implications in a number of substantive legal areas. The data show potential flaws in the way civil juries assign compensatory awards, and in our approach to certain aspects of sexual harassment law. The findings have profound implications for the presentation of victim impact statements to capital juries, but also undercut some abolitionist claims regarding the suffering that death row prisoners experience. Contract law is implicated by these findings, especially in the context of contracts for surrogate motherhood. And the data are relevant to areas of health law as well - for instance, regarding the use of advance directives broadly as well as in the specific context of euthanasia. I also discuss broader issues, such as the implications of the affective forecasting research for theories of law and the emotions more broadly. In this discussion I include some of the specific drawbacks to some current theories. In addition, I address the data's implications for the very theories of welfare and well-being that underlie much legal policy, as well as some speculations about what the findings might have to say about potential paternalistic policies.

The Predictability of Juries

This article discusses the meaning of jury “predictability” and whether jury research supports claims of unpredictability. It then analyzes the factors that are associated with perceptions of civil jury unpredictability using data from (1) surveys of corporate and insurance attorneys’ views of the civil justice system, and (2) the outcomes of civil jury trials in state courts. Perceptions of punitive damages dominate business and insurance industry attorneys’ jury predictability ratings. Punitive damages data are significantly and strongly related to attorneys’ judgments about jury predictability across states. This strong association occurs despite evidence of infrequent punitive damage award requests and less frequent occurrence of punitive awards.

The Validity of the Public Rights Doctrine in Light of the Historical Rationale of the Seventh Amendment

Slowly, the body of civil disputes that are guaranteed a right to a jury trial under the Seventh Amendment is contracting. It is doubtful that the amendment will ever be repealed, but its content is being chipped away and there is increasingly little distance left between the current interpretation of the amendment and no amendment at all.The agent of this erosion is the Supreme Court. If deeds speak louder than words, the message of the Supreme Court is that civil juries have, at best, a limited future. The Court writes frequently about the sanctity of the jury system, and a Justice occasionally laments the erosion of the traditional sphere of jury cases, but the Court nevertheless continues to exempt more and more cases from the scope of the Seventh Amendment.This Article examines the exception that now threatens to swallow the rule: the public rights doctrine. Under this doctrine, a potentially huge body of civil disputes, including virtually all administrative law cases, are exempt from the Seventh Amendment. Although the philosophical basis for the public rights doctrine is as old as the Constitution, its lineage suggests nothing to justify this exception.

The Myth of How to Interpret the Seventh Amendment Right to a Civil Jury Trial

The Seventh Amendment reads: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of common For two hundred years, our courts have labored under the myth that this language contains the kernel of a black-letter rule of law. This is the so-called “historical test,” which derives from jury practices prevalent under English common law during the eighteenth century. The result has been muddled jury jurisprudence. This 1994 article proposed abandonment of the historical test in favor of a more philosophically and jurisprudentially understanding of the the Seventh Amendment.

Knowing Killing and Environmental Law

This paper argues that the ethical commitment against knowing killing should play a role in decisions about environmental problems. The ethical commitment against the knowing killing of one person by another - against murder - is reflected in laws that exist in all fifty U.S. states, in modern regulatory laws at the federal level, and in civil jury awards in tort cases involving profit-oriented corporations. This ethical commitment is also reflected in otherwise disparate approaches to moral philosophy. The ethical value discussed here is thus not a new norm, nor, in its traditional setting, a controversial one. Applying this norm in the context of environmental risks does create several complications, but they are not enough to de-activate the norm in this setting. This analysis reveals the morally problematic nature of using cost-benefit analysis to evaluate environmental decisions. Cost-benefit analysis involves precisely the kind of pre-killing weighing of the choice whether a person will live or die which our norm against knowing killing condemns.

Pace v. Swerdlow: Can Expert Witnesses Face Liability for Changing Their Minds? The Tenth Circuit Weighs in on the Element of Proximate Cause in a Claim of Expert Negligence

Expert witnesses are a necessary component of the legal system because many claims involve technical facts that would be beyond the understanding of judges and juries without expert testimony. Expert witnesses are also pervasive throughout the legal system. For example, a “recent survey of California civil jury trials determined that at least one expert testified in eighty-six percent of all cases, with two or more opposing experts testifying in fifty-seven percent of the trials.” Courts, motivated by a desire to obtain objective expert testimony, have historically held experts immune from liability based on their activities as experts. However, expert negligence has increasingly become a problem. Thus, courts have recently begun to erode expert immunity and allow claims against experts for alleged negligence - this trend is particularly true regarding so-called “friendly” experts (experts subjected to suits instigated by the same party that retained them).

Empirical Legal Studies Before 1940: A Bibliographic Essay

The modern empirical legal studies movement has well‐known antecedents in the law and society and law and economics traditions of the latter half of the 20th century. Less well known is the body of empirical research on legal phenomena from the period prior to World War II. This article is an extensive bibliographic essay that surveys the English‐language empirical legal research from approximately 1940 and earlier. The article is arranged around the themes in the research: criminal justice, civil justice (general studies of civil litigation, auto accident litigation and compensation, divorce, small claims, jurisdiction and procedure, civil juries), debt and bankruptcy, banking, appellate courts, legal needs, legal profession (including legal education), and judicial staffing and selection. Accompanying the article is an extensive bibliography of research articles, books, and reports.

Achieving Diversity on the Jury: Jury Size and the Peremptory Challenge

Diversity on the jury promotes the perceived fairness of the jury system. Analyzing the jury selection and composition in 277 civil jury trials, we examine how the jury selection process and jury size, two contested features of the jury system, affect diversity. We show that while peremptory challenges were systematically related to juror race/ethnicity, the opposing challenges cancelled each other out, producing no overall effect on the makeup of the jury. In contrast, jury size had a substantial effect on minority representation. We conclude that diversity is most effectively promoted by restoring the 12‐member jury.

Do Caps on Damage Awards Crowd Out Judicial Oversight of Civil Jury Verdicts?

There are numerous policies that limit the dollar value of damage awards rendered by juries in civil disputes. Presumably intended to correct perceived problems with the jury system, these policies can be seen as automating an oversight function otherwise left to the initial discretion of trial judges. It is possible that having these limitations imposed in verdicts where judges would have not chosen to exercise any oversight in their absence makes them less willing to exercise their discretion to oversee other aspects of the damage award. We test for the “crowding out” of judicial oversight using a survey of post-trial adjustments to jury verdicts in New York and California. The results suggest that when certain components of a damage award are subject to external limits, judges are less likely to exert oversight and reduce other components of the award. These findings support the hypothesis that mandated limitations to damage awards crowd out judicial oversight and may have consequences unintended by policymakers.

An Attributional Sequence Model of Jury Decision Making in Civil Torts

A jury simulation study was designed to replicate and extend prior research on attributional decision-making sequences in a litigation context. Although previous studies implicated injury severity, causality, responsibility, and punishment, a maximum of three stages in various combinations were tested, and only occasionally in the context of civil litigation. The present effort integrated all four stages into a more inclusive model focused on civil jury decision making. Undergraduate participants (N=91) read six case vignettes and responded to attribution questions in each of four categories. Path analyses supported the hypothesized 4-stage attributional sequence.

Empirical Legal Studies Before 1940: A Bibliographic Essay

The modern empirical legal studies movement has well-known antecedents in the law and society and law and economics traditions of the latter half of the 20th century. Less well known is the body of empirical research on legal phenomena from the period prior to World War II. This paper is an extensive bibliographic essay that surveys the English language empirical legal research from approximately 1940 and earlier. The essay is arranged around the themes in the research: criminal justice, civil justice (general studies of civil litigation, auto accident litigation and compensation, divorce, small claims, jurisdiction and procedure, civil juries), debt and bankruptcy, banking, appellate courts, legal needs, legal profession (including legal education), and judicial staffing and selection. Accompanying the essay is an extensive bibliography of research articles, books, and reports.

The empirical estimation of the cost-minimizing jury size and voting rule in civil trials

Since the early 1970s, the literature examining the court system has placed much emphasis on the importance of the jury size and voting rule when analyzing the jury decision-making process. In addition, researchers have also used deductive reasoning to theoretically determine the cost-minimizing jury size and voting rule with regards to Type I and Type II errors. In this paper, we take this analysis one step further by empirically estimating the cost-minimizing jury size and voting rule in civil jury trials.

Early Empirical Research on Civil Justice

The modern empirical legal studies movement has well-known antecedents in the law and society and law and economics traditions of the latter half of the 20th century. Less well known is the body of empirical research on legal phenomena from the period prior to World War II. This paper is a short bibliographic essay surveying the pre-war English-language empirical legal research focused on issues related to civil justice. The essay is arranged around the themes of general studies of civil litigation, auto accident litigation and compensation, divorce, small claims, jurisdiction and procedure, and civil juries. Accompanying the essay is a bibliography of early research articles, books, and reports related to civil justice.

General Civil Jury Trial Litigation in State and Federal Courts: A Statistical Portrait

Using data from the Civil Justice Survey of State Courts and the Administrative Office of the U.S. Courts, this article compares general civil (tort, contract, and real property) jury trials concluded in a sample of state courts and all federal district courts in 1992, 1996, and 2001. The study's key findings are: (1) that the types of civil cases coming before state and federal juries differ substantially; (2) that overall plaintiff win rates are nearly the same in both state and federal courts; (3) that the damages awarded to plaintiffs in federal courts are substantially higher compared to their state counterparts; (4) that although the vast majority of jury trials take place in the state courts, the federal courts accounted for a relatively significant minority of product liability trial litigation; (5) that state courts took substantially longer to dispose of civil jury trials than federal courts; and (6) that trend data show similar patterns of declining trials and stable plaintiff win rates in both court systems.

Preferences for Juries Over Judges Across Racial and Ethnic Groups*

Objective. The objective of this article is to explore whether a preference for juries rather than judges to decide legal cases varies across racial and ethnic groups. We hypothesized that minorities (African Americans, Hispanics), who generally express less trust in the legal system, may also express less trust in juries than non‐Hispanic whites.Method. A representative sample of 1,465 residents of Texas were surveyed and asked whether they would prefer a jury or a judge to be the decisionmaker in four hypothetical circumstances. Analyses control for a number of possible factors that might also predict views of the jury besides race and ethnicity.Results. Consistent with expectations, non‐Hispanic whites favored juries over judges, particularly if they imagined themselves as a defendant in a criminal trial. By comparison, African Americans and some Hispanics showed a weaker preference for a jury over a judge. African Americans had markedly lower support for the civil jury, but jury support was higher among minorities with prior jury service. Among Hispanics, respondents who took the survey in Spanish typically preferred a judge to make legal decisions.Conclusions. Faith in the jury as a more trustworthy decision‐making body is weakest among those groups that have a history of discriminatory treatment in the legal system and who are less acculturated on other measures, such as language dominance.

Testimony to Constitution Subcommittee of the U.S. Senate Judiciary Committee Regarding the Arbitration Fairness Act of 2007 and the Constitutional Duty of Congress to Restore Citizens' Seventh Amendment Rights

The Framers' election to preserve the common law right to civil jury trial in the Bill of Rights means that businesses may not remove this right from citizens by making its waiver a precondition to delivery of goods, services or employment. This conclusion is compelled by two considerations. First, the decision by the Framers to include this right in the Bill of Rights designates it as the kind of fundamental right waiver of which must be protected from any form of coercion, including the coercion imposed when a business makes waiver of the right a non-negotiable condition to delivery of a good, service or employment. Second, looking to the text of the Constitution, the decision by the Framers to protect the civil jury trial right with Article V's strong supermajority amendment requirements evinces their intent that the scope of the right's applicability not be subject to reduction by a less restrictive amendment mechanism - be it a majoritarian statutory amendment process (something the Framers contemplated) or what amounts to private legislation through standardized contractual waivers, a future development that the Framers, understandably, failed to anticipate. Pursuant to the Supreme Court's unconstitutional conditions doctrine, the state may not seek advance waiver of a citizen's Sixth Amendment criminal jury trial right in favor of bench trials in return for some unrelated benefit such as subsidized public housing or college tuition assistance. The coerciveness of such an offer becomes clear when one realizes that if the benefit offered were sufficiently valuable the citizen would readily waive her criminal jury trial right even if she strongly preferred jury trials over bench trials. Symmetrically, the Seventh Amendment civil jury trial right should enjoy the same protection against coercive removal as that provided the Sixth Amendment criminal jury trial right. Thus, a business should not be permitted to require that a citizen waive his jury trial right as a take-it-or-leave-it precondition to delivery of goods, services or employment. Coercion is coercion whether imposed by the state or a private party. Properly understood, it is protection against this form of coercion that constitutes the core minimum distinction between fundamental Constitutional rights and ordinary property interests. Viewed from a slightly different perspective, the very fact that lawmakers set forth an individual right applicable against other private parties in a constitution instead of a statute signals an intent that such right trump other persons' standard property rights where necessary to preserve citizens' ability to invoke such constitutional right. For example, in PruneYard Shopping Center v. Robins, California's Supreme Court held, and the Supreme Court unanimously affirmed, that California shopping centers may not make waiver of a customer's reasonably exercised state constitutional free speech and petition rights a condition to entry. Thus, the California Supreme Court found that the inclusion of these individual rights in California's constitution signals an intent that such rights trump a shopping center owner's common law rights to exclude people from its property and to control the activities permitted thereon. Following the same logic, the decision by the Framers to preserve in the Bill of Rights rather than in an ordinary statute (or not at all) the common law civil jury trial right signals an intent that such right trump the otherwise operable common law right of a business to make waiver of this or any other right a condition to delivery of goods, services or employment.