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Who Loves a Jury?

The Framers of the Constitution, that’s who.

Jan 20, 2014, Vol. 19, No. 18 • By DAVID M. WAGNER
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At first the Bill of Rights was binding only on the federal government, and to this day the 7th Amendment remains one of the provisions in the Bill of Rights that the Supreme Court has not fully applied to the states. The reason? No apparent need: The states themselves guarantee the civil jury right, and have done so since the Founding. Northwestern’s Steven Calabresi and his fellow legal scholars have recently found that 12 of the original 13 states, representing about three-fourths of the population of the new United States of America, had civil jury provisions in their state constitutions at the time of the Founding, second only to provisions for the free exercise of religion.

Civil juries are not perfect, but, in accordance with the Framers’ vision, they should come out of the doghouse they seem to be in today. They should not take the whole blame for excessive tort judgments, and the higher insurance rates and research costs that these create. A critical eye should also be cast on liability theories that legitimize plaintiffs seemingly in need of infinite and unforeseeable product warnings; fee structures that favor lawyers over victims; and, increasingly, hedge funds that see litigation as an investment opportunity, turning on its head the common law rule against “champerty” (which meant, fairly precisely, investing in litigation).

The civil litigation system is flawed along several fissures; juries are not the only ones, or the worst. Above all, they have countervailing, decisive civic, and constitutional benefits. At least our Framers, after debating the issue, came to that conclusion, and we are unwise to ignore their counsel. 

David M. Wagner teaches constitutional and administrative law at Regent University.

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