The Civil Jury: The Disregarded Constitutional Actor

Abstract:     
This lecture "The Civil Jury: The Disregarded Constitutional Actor" argues that the significant division of power between the judiciary and the jury should be recognized alongside the separation of powers between the branches and the federalism division between the federal government and the states. While the jury is a separate constitutional actor with important powers, the judiciary and the legislature have not recognized it as such. This has led to the constitutionalization of modern procedures which take away the jury trial right before, during and after trial, including through remittitur, summary judgment, the motion to dismiss and federal caps. This jurisprudence on the civil jury exhibits an odd alignment under which so-called liberal justices may hold a jury trial right does not exist, whereas other so-called conservative justices may hold such a right exists. This appears to result from the tendency of liberal justices to shun originalism, even in the context of the Seventh Amendment where originalism is constitutionalized in the text. Here, the liberal justices should embrace originalism. Moreover, the lecture argues that all of the Justices should recognize the significant division of power between the judiciary and the jury by eliminating modern procedures which impinge this division of power.

Keywords: jury, summary judgment, motion to dismiss, remittitur, tort reform, Seventh Amendment

JEL Classifications: J71, K41, K22, K21, K13

Working Paper Series