Better By the Dozen: Bringing Back the Twelve-Person Civil Jury

104 Judicature 46 (2020)

12 Pages Posted: 18 Feb 2021

See all articles by Steven Gensler

Steven Gensler

University of Oklahoma College of Law

Lee Rosenthal

U.S. District Court for the Southern District of Texas

Patrick Higginbotham

St. Mary's University School of Law

Date Written: August 1, 2020

Abstract

In the 1970s, the Supreme Court held that federal courts no longer needed to use traditional 12-person juries in civil cases, ultimately concluding that civil juries could have as few as 6 members. Since then, anecdotal evidence has suggested that civil jury size in federal court has been shrinking consistently. To better understand civil jury size in federal courts today, we gathered civil jury size data from 15 federal districts. Our data confirm that the 12-person civil jury is disappearing in most federal districts. Four out of five civil juries begin with nine or fewer members. By far, the most common size of civil juries today is eight. In this article, we present our findings and then explain why the trend toward smaller civil juries threatens to undermine core features and benefits of the civil-jury system. We close with a call for federal judges to return to using 12-person civil juries and set out three steps that can be taken immediately to begin the process of bringing back the 12-person civil jury.

Keywords: Jury trials, Civil Juries, Federal Procedure, Civil Procedure

JEL Classification: K41

Suggested Citation

Gensler, Steven and Rosenthal, Lee and Higginbotham, Patrick, Better By the Dozen: Bringing Back the Twelve-Person Civil Jury (August 1, 2020). 104 Judicature 46 (2020), Available at SSRN: https://ssrn.com/abstract=3768017

Steven Gensler (Contact Author)

University of Oklahoma College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States
405.325.7889 (Phone)

Lee Rosenthal

U.S. District Court for the Southern District of Texas

TX
United States

Patrick Higginbotham

St. Mary's University School of Law ( email )

One Camino Santa Maria
San Antonio, TX 78228-8602
United States

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