Our Juries Our Selves: The Power Perception and Politics of the Civil Jury
The modern American jury has a bipolar presence in the popular consciousness. On the one hand, the jury is a cultural icon as revered in the United States as the flag, 1 its contribution to democracy equated to voting. 2 On the other hand, the jury is reviled as an agent of arbitrary injustice, its output considered evidence of the decline of moral consensus. Controversial, high-profile jury verdicts in the last few years have intensified the debate about the efficacy of the jury as the principal decisionmaker in court-settled disputes. This cultural ambivalence about the jury has significance beyond the ongoing need to assess jury performance, because the modern jury is the most diverse of our democratic bodies. 3 After courts began to interpret constitutional mandates of equal protection and impartial juries to require that women and minorities be included on juries, 4 the demographics of juries changed dramatically at a pace far exceeding the diversification of legislatures, executive branches, or the judiciary. 5 But as this jurisprudence of inclusion developed, so too did restraints on jury power. The twentieth-century civil jury is subject to legal restraints unknown to our constitutional framers and enjoys far less prestige than its eighteenth-century ancestor. The confluence of the dual trends toward inclusion and restraint creates some troubling questions. What does it mean that the most diverse of our democratic institutions is subject to increasing legal restraints and cultural disdain? Is the treatment of the modern jury as an institution (now that women ...