Trial by Jury: The Seventh Amendment and Anglo-American Special Juries.

Trial by Jury: The Seventh Amendment and Anglo-American Special Juries James Oldham NYU Press www.nyupress.org 368 pp., $55

We often need legal rights to protect our access to something we want or need that somebody else doesn't want us to have.

The right to trial by jury is no exception: Almost every court decision on the subject of trial by jury arises because someone opposes someone else's desire to have a jury hear the merits of their dispute. A hearing is held; case law, legislation, and constitutions are cited; history is invoked; and exquisite arguments are made for why a jury should not hear the case. Those opposing the jury trial may argue that the issue historically has not been decided by juries; that relevant legislation makes no provision for a jury trial; that the issue is too complex for a jury to decide; that the issue is one of law, not fact; or that there simply are no facts in dispute.

In essence, the struggle over the right to trial by jury is a political contest over how much power will be left in the hands of ordinary Americans and how much power the courts will allow to be taken from them and turned over to corporate and other special interests. The battle over trial by jury has been fought through legislation, litigation, and--recently--highly partisan extrajudicial publicity campaigns to denigrate jurors, ridicule their verdicts, and intimidate judges. And, as important as it is, the struggle over trial by jury is but one of many fronts in the overall 30-year-old assault on the U.S. civil justice system.

This is the background to Georgetown University legal historian James Oldham's Trial by Jury: The Seventh Amendment and Anglo-American Special Juries, in which he relates much of trial by jury's long, colorful, but decidedly checkered, history in England and the United States. Along the way, he elaborates on several issues critical both to those who support jury trial of civil and criminal cases as an indispensable element of American democracy and to those who oppose it.

The first of these problems is the "historical test" that the U.S. Supreme Court has applied to determine whether the Seventh Amendment requires a particular issue to be decided by a jury. This test, established in Dimick v. Schiedt in 1935, requires courts to examine "the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791." Oldham rightly calls the historical test "an American legal fiction in application, since many more things were lodged with juries in England in 1791 than modern American courts, including the Supreme Court, are prepared to acknowledge." Whether fact or fiction, the historical test of the right to trial by jury illustrates the defensive position in which jury trial proponents often find themselves.

The second problem is the argument that there is or should be a "complexity exception" to the Seventh Amendment for cases that are simply too difficult for ordinary citizens to understand and decide. The U.S. Supreme Court in 1970 sent shivers of excitement through the anti-jury forces with a footnote in Ross v. Bernhard, referring to "the practical abilities and limitations of juries" as one of three criteria for deciding whether an issue is primarily legal (requiring jury trial) or equitable (requiring none). The footnote engendered a spate of speculation, academic inquiry, and procedural maneuvering to determine whether complex cases could be kept out of the hands of the "great unwashed."

Oldham notes that several litigants raised this question directly in a 1979 antritrust case, In re Japanese Electronic Products Litigation, in which several U.S. electronics manufacturers alleged a conspiracy by their Japanese competitors to achieve "the methodical destruction of the United States' domestic consumer electronic products industry." The Japanese manufacturers argued that the case was "so extraordinarily complex" that it was "beyond the practical abilities and limitations of a jury." The district court disagreed.

In preparation for appeal, both sides hired distinguished legal historians to search for historical evidence to support their positions, and both of them succeeded. The Third Circuit held for the anti-jury side, but on due process grounds, and the Seventh Amendment argument subsided. In the meantime, however, a few judges and lawyers observed that not all complexity is insuperable, and that lawyers and courts can make most if not all cases comprehensible to juries if they have the will and the professionalism to try.

The third problem is the use of various "special" fact-finding bodies that historically have been employed on both sides of the Atlantic, usually for their familiarity with the case's subject matter. Among these were juries of merchants who heard commercial disputes in England.

Another such "special" fact-finding body, to which Oldham devotes an entire chapter, was called a "jury of matrons." He describes how groups of "honest women of good reputation" were sometimes assigned to inspect the clothing of women accused of being witches to see if "instruments of witchcraft" were hidden in them.

And juries of matrons were often impaneled in both England and colonial America to decide whether a woman was pregnant. A finding of pregnancy could affect matters of inheritance and would, of course, scotch suits for annulment. More critically, in criminal cases in which a woman had been convicted of a capital offense--which in 18th-century England could be as minor as stealing property worth 40 shillings--a finding of pregnancy could lead to a stay of execution or even a pardon. A condemned woman who claimed pregnancy was said to "plead her belly."

The special juries of yore are gone, but litigants' pleas for special treatment of their cases are alive and well, and they may pose the greatest danger of all to trial by jury, as they have led in some instances to legislative action that has taken whole categories of litigation out of the common law court system. Thus we have special tribunals set up for cases involving vaccine-related injuries and other neurological injuries to infants and a well-organized and well-funded campaign to establish "health courts" dedicated to resolving medical malpractice cases.

The idea of having one's dispute heard by an understanding "special" mind has great appeal to corporate America and to many professions. And special juries might, arguably, be legitimate in disputes between two individuals or business entities involved in the same special field. But in suits between a specialist and a layperson, special juries portend bias in favor of other members of the same club.

In the meantime, corporate America has found ways to achieve some of the benefits of a "special jury" regime while escaping from the courts entirely. For example, mandatory arbitration, which is often imposed on consumers, investors, and some medical patients who are coerced into signing what amount to adhesion contracts, comes close.

Arbitrators often hear numerous disputes involving the same party, and some have been found to have astonishingly consistent records of ruling in favor of their frequent customers. Such schemes have been held unenforceable by some courts, but it remains to be seen whether this use of economic and political leverage will make the entire institution of jury trial in courtrooms moot.

Oldham's book is challenging to read. Its subject matter is highly specialized, its writing is not always lively, and its organization, which pulls together several previously published articles that do not always flow easily from one to another, lacks finesse. But Oldham's knowledge of the subject matter is encyclopedic, and his investigation has unearthed voluminous material on the historical workings of juries. Most important, although Oldham does not argue for or against trial by jury in his book, his research is sure to be cited in support of future attempts to curtail the use of jury trials. Those who support the existing civil justice system will ignore it at their peril.

JAMES E. ROOKS JR. is senior counsel in AAJ's research department.