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The Role of the Civil Jury in a System of Private Litigation, 1990 U. Chi. Leg. Forum 161 (1990)


This paper attempts to examine critically the role of the civil jury by determining what functions it actually serves in the American system of justice. The civil jury is an institution of distinctive importance in American society. The United States employs the lay jury to adjudicate civil claims to an extent far greater than any other modern nation. And because our rules provide jury election to either litigant, the civil jury defines the substance of liability for all civil disputes: directly, for cases litigated to judgment; and through potential recourse, for cases settled out of court. Moreover, beyond its utility as an instrument of claims resolution, the civil jury occupies a central political role in our democratic society. The civil jury is widely viewed as establishing a critical popular counterforce to governmental control of law enforcement and engendering a sense of citizenship and commitment to the rule of law.

Yet, despite the civil jury's administrative and political importance, there has been little critical joinder in recent years over either the civil jury's direction or the magnitude of its duties. There has been widespread approval of the civil jury as an institution for claims adjudication. The particular features of the jury's composition—12 persons, lay citizens, chosen randomly from the population—are frequently invoked to justify the civil jury as the institution best suited to resolve particularly vexing legal disputes. But there has been little attention given to whether the types of disputes that the civil jury actually faces correspond to the types of disputes for which this method of decisionmaking is most appropriate, and equally little attention to the broader implications of delegating all civil disputes to juries in our increasingly litigious times.

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