Strengthening the Civil Jury

By Anna Offit & Richard Lorren Jolly

The civil jury is disappearing. Despite constitutional or legislative protection in every American jurisdiction, juries today decide fewer civil disputes than at any other point in history. For instance, although federal juries decided roughly 15.2% of filed civil cases in 1940, they decided a mere 0.63% in 2017. A similar trend is apparent in all state courts that report their caseload statistics, including California. This decline has serious consequences for not just the health of our judiciary, but of our polity more generally. It demands our attention.

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Although quantitative figures document well the alarming downward trend, qualitative research by scholars and academic institutions paint a fuller picture of what the decline of the civil jury means. Interdisciplinary legal scholars such as John Gastil and Richard Reuben have drawn attention to the deep relationship between democratic governance and the civic engagement of ordinary citizens that results through jury service. Others, including Myriam Gilles, have highlighted the importance of court access, reminding us of the perils of a justice system that precludes poor litigants from having their day in court due to the appearance of class action bans in standard contracts, for example. In the wake of the #MeToo movement, researchers are increasingly questioning the wisdom of non-disclosure agreements that can exclude lay decision-makers—and the public more broadly—from scrutiny of serious sexual harassment allegations. (See research and scholarship on issues discussed in this article at https://civiljuryproject. law.nyu.edu/.)