Restoring the Civil Jury in a World Without Trials

54 Pages Posted: 27 Aug 2016

See all articles by Dmitry Bam

Dmitry Bam

University of Maine - School of Law

Date Written: August 25, 2016

Abstract

Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.

This article argues that we must reimagine the civil jury to match the framework of modern civil litigation and modern civil procedure. Civil litigation in the 21st century revolves around pre-trial practice, including the motion to dismiss and the motion for summary judgment. Today, judges alone decide those dispositive motions. And when the judges deciding these motions are biased, the jury is conspicuously absent. I propose that jurors serve alongside judges to decide fact-intensive dispositive motions on what I call Hybrid Judicial Panels. This proposal restores the jury’s historical power to control biased judges, and offers the people themselves a renewed role in modern civil litigation.

Keywords: judicial bias, juries, civil procedure, constitutional law, courts, judges, judicial selection

Suggested Citation

Bam, Dmitry, Restoring the Civil Jury in a World Without Trials (August 25, 2016). Nebraska Law Review, Vol. 94, No. 4, 2016, Available at SSRN: https://ssrn.com/abstract=2830103

Dmitry Bam (Contact Author)

University of Maine - School of Law ( email )

246 Deering Avenue
Portland, ME 04102
United States

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