The Civil Jury: 200 Years Under Siege

A historical retrospective reveals the importance of preserving the right of each citizen to a trial by jury.

by Jeffrey Robert White

A fine compliment to the American Association for Justice appeared in–of all places–the editorial page of the Wall Street Journal: "Over the years, [AAJ] has developed a reputation for success on Capitol Hill with a simple but powerful message that the right to a jury trial embedded in the Seventh Amendment should be preserved at all costs."¹

For over half a century, AAJ has devoted its efforts, talents, and resources to that mission. The text of the Seventh Amendment is inscribed on the front of AAJ's headquarters building in Washington, D.C.: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of common law."

For much of the association's history, the civil jury has been under heavy assault. State legislatures have enacted hundreds of tort "reform" statutes to limit its authority, and Congress's repeated attempts to do the same have failed only narrowly.

Judges have become bolder in taking issues away from the jury–both before and after the verdict–and routinely remit damage awards. Federal preemption of state tort law, class action settlements, and mandatory arbitration-all pressed by corporate defendants and blessed by federal judges-threaten to take entire classes of cases out of the hands of juries. In the legal literature and the popular press, the jury is demeaned as incompetent, inefficient, and untrustworthy. Through it all, trial lawyers have insisted that the Seventh Amendment means what it says.

Wait, some may say. Doesn't this mission lack a certain loftiness? If the jury's purpose is, as the Supreme Court stated, merely "to assure a fair and equitable resolution of factual issues" in civil cases,² what is to be lost by handing over this procedural task (which many citizens avoid if at all possible) to more competent and efficient judges, panels of experts, or professional arbitrators? In short, is the civil jury worth fighting for?

If the civil jury fades from the American civil justice system, it will be because its opponents have succeeded in marginalizing it as an antique fact detector, hardly worth manning the barricades to defend.

Past generations fought for the civil jury. Its history has been filled with "passion and violence."³ Twice before, Americans faced the question of whether the civil jury would remain an essential element of their democracy. These earlier struggles reveal how and why the right to trial by jury must be preserved.

Risking it all

It was muggy and hot. They were tired. To maintain secrecy, they kept the windows closed, though they might gladly have thrown them open if not for the biting flies and the stench of garbage piled in the streets. It was September 1787. Welcome to Philadelphia.

The delegates to the constitutional convention, about half of them lawyers and all of them white men, had been meeting for almost four months to forge a new national government, and they were desperate to return home. So when Hugh Williamson of North Carolina rose five days before adjournment to propose a guarantee of the right to trial by jury in civil cases, a collective groan (or worse) must have gone up from the delegates. George Mason, however, quickly seconded the motion.⁴

James Madison, driving force behind the convention and author of the Virginia Plan, which formed the basis for discussion, must have cast a wary eye at his fellow Virginian. Mason, a leading opponent of a strong central government, had authored Virginia's Declaration of Rights. But he knew full well that the delegates had no plans to add such a declaration to their outline for the structure of government. Nor was there much sentiment for extending their stay in Philadelphia.

What could be the point of proposing a right to jury trial at this late hour? It was, some later claimed, a setup.⁵

On September 15, the convention delegates overwhelmingly voted against adding a guarantee of trial by jury or other individual rights to the Constitution. It was a near-fatal mistake.

Those who feared handing power to a national government, like Revolutionary firebrand Patrick Henry, were already planning to oppose the new constitution. They were acutely aware that, following the experience with a weak central authority under the Articles of Confederation, they were unlikely to attract much of a following. But the absence of a Bill of Rights, highlighted by the delegates' outright rejection of the civil jury, gave the antifederalists an issue that could rally widespread opposition to ratification.⁶

At that time, no element of democratic government was more revered than the jury. The immigrants from England had brought it to every colony. In some, the jury played a more active role in day-to-day governance than even the colonial legislature.⁷ Eventually, American blood would be spilled on battlefields from Lexington to Yorktown to preserve that right.

Back in Britain, popular esteem for the jury was skyrocketing during what a leading historian called "the heroic age of the English jury" when "trial by jury emerged as the principal defense of English liberties."⁸ Edward Bushel and the other jurors who refused to convict Quaker William Penn in 1670 were fined and jailed by the trial judge. But they were hailed as heroes for forcing Parliament, at last, to prohibit punishing juries who returned a "wrong" verdict in the judge's estimation.⁹ The jury acquittal of seven Anglican bishops accused of seditious libel in 1688 was cheered so loudly in the streets that the judge could not be heard in his own courtroom. The verdict led to the passage of the English Bill of Rights.¹⁰

And when was the last time a jury verdict in a tort suit triggered massive street celebrations and the ringing of church bells? That was the scene in London in 1763 when the jury returned the first punitive damages verdict for plaintiff John Wilkes against government officials who had conducted an illegal search and seizure aimed at squelching Wilkes's critical newsletter. Lord Camden's affirmance remains a leading precedent for the primacy of the jury in deciding the amount of damages in tort actions.¹¹

In America, the colonists shared the enthusiasm of their English cousins. Wilkes's lawsuit "was probably the most famous case in late 18th-century America, period."¹² Colonists named cities in Wilkes's honor and even sent him campaign contributions.¹³ "Treatises extolling the jury flooded the market" in America as well as England, celebrating the jury "as a bulwark of liberty, as a means of preventing oppression by the Crown."¹⁴

Increasingly, the colonists came to rely on that bulwark. In 1735, at the trial of John Peter Zenger, the publisher of the New York Weekly who was charged with libel for criticizing the governor, attorney Andrew Hamilton successfully persuaded the jury to reject the judge's statement of the law and stand as a shield against the despotic tendencies of government.¹⁵

In the years running up to the Revolution, the right to a jury trial became closely intertwined with the issue of taxation without representation. Colonial governors relied on criminal prosecution and civil forfeitures to enforce the hated Stamp Act and other unpopular tax laws. Colonists successfully appealed to local juries not only to acquit them of the taxes but even to award damages against officials for having the temerity to try to collect them.¹⁶

England responded by removing many cases to jury-free vice-admiralty courts, where cases were decided by judges beholden to the Crown. "The fight over jury rights was, in reality, the fight for American independence."¹⁷

Finally, the colonists felt compelled to declare their independence. Knowing that they were leading their neighbors and communities into a bloody war with a world power, and that each would surely swing from the gallows if that war were lost, the signers of the Declaration of Independence published to the world their grievances against the king, including "depriving us, in many cases, of the benefits of trial by jury."

Demanding a Bill of Rights

Now, the antifederalists complained, the delegates to the constitutional convention were all too willing to cast aside the civil jury and other rights Americans had fought for. George Mason would become the opposition's leading spokesman. As he rode out of Philadelphia in his carriage, he jotted on his copy of the final draft his chief objection: the absence of a Bill of Rights including the important right to a jury in civil cases.

Mason's strategy worked. The federalists were forced to defend their unpopular rejection of the civil jury. Alexander Hamilton attempted to explain that the federalists, too, admired the jury, but the scope

of the right should be left to Congress. The former revolutionaries now felt considerably less enthusiastic about the jury's power to disregard the law. Surely the need for a bulwark against despotic government was gone, now that government was in the hands of the elected representatives of the people.¹⁸

But Congress, the antifederalists shot back, was a large part of the problem.

Madison foresaw, perhaps better than any of his contemporaries, that the danger facing the new democracy was not the would-be king or petty tyrant. It was the struggle between the wealthy elite of society and the mass of less favored citizens.

Half a century ahead of Karl Marx, he wrote in one of the most famous passages of the Federalist papers that "the most common and durable source of factions has been the verious [sic] and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society."¹⁹ The constitution's function in the new republic was "not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part."²⁰

Madison was most concerned with protecting the propertied few against the excesses of the majority. But the antifederalists used this class-conflict point to make their most powerful argument for an explicit constitutional guarantee of trial by jury: Ordinary citizens could not depend on Congress to protect them from depredations by the powerful elite. The national government was distant from their concerns and would be captured by the wealthy few. Federal judges would be drawn from the propertied class and, as Blackstone warned, would tend to identify with those of their own social rank. The common people could depend only on themselves, sitting as jurors.²¹

This was no theoretical exercise. America's success as a trading power had given rise to a relatively wealthy commercial class. Most Americans, however, were farmers. Like today, they depended on credit to weather the uncertainties of the harvest and the commodities markets. When they could not pay, creditors–British brokers and, increasingly, American mercantile interests in New England and New York–took them to court. Plantation owners and small growers alike appealed with increasing success to local juries to mitigate the harshness of the law, prompting creditor interests to demand "reforms" making it more difficult to obtain a trial by jury.

The situation became more desperate in the recession that followed the Revolutionary War. Hard currency was hard to come by, and some states made matters worse by printing large amounts of paper money. Disputes between debtors and creditors roiled through state courts and legislatures, and many saw the rejection of the civil jury as the work of creditor interests that were heavily represented at the constitutional convention.²²

The antifederalist arguments for the civil jury resonated with a broad segment of society.²³ Juries meant direct citizen participation in government. Speakers during the ratification debates often proclaimed that the jury box was at least as important to true democracy as the ballot.²⁴ Thomas Jefferson even ventured that "were I called upon to decide whether the people had best be omitted in the legislation or judicial department, I would say it is better to leave them out of the legislative."²⁵

Growing public opposition to the perceived abolition of the civil jury threatened ratification of the entire Constitution. The federalists finally prevailed by promising that the first Congress would add a Bill of Rights.²⁶ Madison himself drafted the set of amendments, including the Seventh, placing the civil jury, as Justice William Rehnquist stated, beyond "the whim of the sovereign or . . . of the judiciary."²⁷

Early 19th-century juries exercised extraordinary power. They were called upon to decide issues of law as well as fact.²⁸ They might recall witnesses or ask additional questions of a witness, even after deliberations had begun.²⁹

As an exercise of democracy, the civil jury was an impressive success, according to the most famous tourist to visit America. Alexis de Toqueville astutely recognized that the jury is, above all, "a political institution" and "a gratuitous public school" in which Americans learned self-government by governing.

"I do not know whether the jury is useful to those who have lawsuits," he reported, "but I am certain it is highly beneficial to those who judge them . . ." He wrote that "the main reason for the . . . political good sense of the Americans is their long experience with juries in civil cases."³⁰

Industrial revolutionary juries

It turned out that those cranky antifederalists were right. The ink was barely dry on the Bill of Rights when the new life-tenured federal judiciary began its incursions on the province of the jury. Nineteenth-century judges resorted to a variety of devices to control juries, most notably by commenting on the evidence and ordering new trials. The Supreme Court upheld the use of remittiturs, establishing a significant restriction on the jury's role in assessing damages.³¹ By century's end, the civil jury was facing a battle over its very existence. The battlefield was the emerging law of torts.

Modern tort law was forged in the coal fires of the Industrial Revolution. Mills, mines, and factories–and most especially railroads–changed the American landscape and its economy. Locomotives–the symbol of American industry-carried progress to every part of the nation but also left unprecedented injury and death in their wake.

In the laissez-faire days before government safety regulation or medical insurance, jurors well understood the conditions workers were forced to endure. They also understood that a serious injury meant destitution for a working-class family. Even without a sophisticated plaintiff trial bar, in industrial accident cases juries overwhelmingly returned damage awards for injured workers and families.

Business interests

Judges, however, tended to reflect the outlook of business interests. They saw juries as pickpockets who were too simple to understand that excessive liability could stifle America's fledgling industries.

At the behest of the railroads, judges constructed a rigid law of negligence that protected corporations from juries by a wall of immunities and defenses. Contributory negligence, assumption of the risk, and fellow-servant doctrine shielded even blatantly negligent employers from accountability to juries.³²

The jury also came under fierce attack in the law reviews and bar associations by eminent judges and professors at prestigious law schools. Juries were not only sentimental and unsophisticated, they wrote, juries were guilty of the greatest sin of that era: inefficiency.³³

The Supreme Court affirmed a position already taken by most courts that judges alone, not juries, may decide issues of law.³⁴ Even more ominously, the Court declared, "trial by jury has never been affirmed to be a necessary requisite of due process of law."³⁵

Jurors' resistance and America's "backlash against one-sided and harsh tort doctrines resulted in a renewed reliance on the jury to humanize the law," Professor Stephan Landsman has pointed out.³⁶

The Populist and Progressive movements were galvanized by violent labor unrest, tragedies like the Triangle Shirtwaist fire, and exposés like Upton Sinclair's The Jungle. These political parties mobilized public support for breaking the grip of corporate special interests on the instruments of government, instituting greater participatory democracy through initiatives, direct election of senators, and expanded protections for workers and consumers.

Congress enacted the Federal Employers' Liability Act in 1908, including the jury right for injured railroad workers, and followed with the Jones Act for seamen. Beginning in New York in 1910, state legislatures adopted workers' compensation programs to take worker injury cases from control of judges and out of the reach of the negligence defenses.

State lawmakers also carved out exceptions to contributory negligence, and a handful of pioneering states adopted comparative negligence, placing the evaluation of plaintiffs' negligence in the hands of the jury.³⁷ State legislatures eliminated judges' power to comment on the evidence or fashion their own instructions and broadened the right to serve on juries, notably to include women.³⁸

In Dimick v. Schiedt, the Supreme Court appeared to find new respect for the jury's role in assessing damages, ruling that additur violated the Seventh Amendment and even expressing some doubt as to the constitutionality of remittitur. The Court declared, "Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care."³⁹

Station wagon soldiers

The civil jury faced yet another danger. Plaintiffs were getting trounced at every turn. Personal injury lawyers, viewed with immense distaste by the legal elite, were struggling and isolated. They were easily outgunned and overpowered by well-organized and well-provisioned insurance company lawyers.

In the 1950s, a band of plaintiff lawyers conceived the notion that the secret to success for themselves and their clients was to have no secrets at all. Scores of the best trial lawyers in the country threw boxes of documents and demonstrative evidence into the backs of station wagons to deliver seminars in cities and towns to any plaintiff lawyer who cared to attend.

By sharing and developing theories, techniques, and information, the National Association of Claimants' Compensation Attorneys (AAJ's name from 1946 to 1964) caused a dramatic upswing in the number of injury cases that went to juries and in the amount of compensation juries awarded to plaintiffs–so dramatic that the insurance organ National Underwriter cried out with alarm that "NACCA is the greatest threat confronting the insurance industry."⁴⁰

The industry responded with articles and advertisements in popular publications such as Reader's Digest and the Saturday Evening Post. The message, sometimes accompanied by an illustration of a housewife pushing a shopping cart or a pipe-smoking dad lecturing his son, was unsubtle: When you sit on a jury, remember that the money you give away comes out of your own pocket. It was jury tampering at the wholesale level, protected, courts held, by the First Amendment.

Attack of the anecdotes

The public relations campaign turned a good deal nastier in the mid-1980s and 1990s when it became part of an aggressive lobbying campaign for state and federal tort "reform." Its success in garnering public support came from skillful use of "crazy cases." Some anecdotes were simply gross distortions of the facts in a particular lawsuit, such as the portrayal of the McDonald's coffee case. Others, including the widely repeated story of the man lifting his lawnmower to trim his hedges, were completely fictitious.

The message pounded into the public consciousness, repeated in legislative hearings and in court briefs, was that juries are mindless and perverse, easily manipulated by greedy plaintiff lawyers (not a flattering reflection on well-paid defense counsel), and utterly lacking in common sense (not a flattering view of the American public from whose midst jurors are drawn).

Even greater than the harm to injury victims due to tort "reform" statutes is the damage to democratic values caused by this drumbeat of jury bashing.

'Shall be preserved' . . . by whom?

Will the new century see a new defense of the civil jury?

Representatives in Congress and the state legislatures show few signs of willingness to say no to corporate contributors demanding greater protection from juries. The press, the direct beneficiary of the courageous juries in Zenger, Wilkes, and other cases, is frequently guided by its own business interests.

The Supreme Court has relied on the Seventh Amendment to turn aside some overt attempts to eliminate the jury entirely. Congress may not, in a move reminiscent of King George III of England, shift cases from Article III courts to jury-free Article I tribunals.⁴¹ Class action attorneys may not trade away the jury rights of any future asbestos victims in order to fashion a compensation scheme for numerous claimants.⁴²

Relying on the decisions in Wilkes and Dimick, the Supreme Court unanimously ruled that where a federal statute provides a cause of action analogous to a suit at common law, not only do parties have a right to a jury under the Seventh Amendment, but also "the right to a jury trial includes the right to have a jury determine the amount of statutory damages."⁴³

On the other hand, the Court has not hesitated to expand the authority of federal judges to restrict juries. The Court found that the Seventh Amendment was no impediment to requiring federal judges to act as "gatekeepers" to exclude expert testimony they deem unreliable,⁴⁴ requiring district courts in diversity suits to review federal jury awards under more stringent state tort "reform" provisions,⁴⁵ and requiring even state courts to undertake review of punitive damages awards for possible excessiveness.⁴⁶

Following the High Court's lead, federal district courts and courts of appeals have become measurably more activist in using directed verdicts and summary judgments to prevent tort cases from reaching juries and in using remittitur to reduce jury awards.⁴⁷

There have also been encouraging developments. State supreme courts have reinvigorated state constitutional guarantees, including the right to a remedy and the right to trial by jury, to invalidate tort "reform" legislation.⁴⁸

In addition, the overstated propaganda attacks on the civil jury have prompted researchers to conduct empirical studies of jury performance. The results have borne out the wisdom of the Seventh Amendment. In sharp contrast to the "crazy" juries lampooned in propagandists' anecdotes, these studies overwhelmingly have found that real juries perform their duties remarkably well.

Juries follow the court's instructions conscientiously and base their decisions on evidence rather than emotion.⁴⁹ Their decisions are generally in line with what judges or professional arbitrators would have decided, demonstrating that juries are capable of doing justice in even complex cases.⁵⁰ Nor are judges demonstrably better decisionmakers than juries are.⁵¹ Not only are judges and arbitrators drawn from a fairly narrow segment of American society, but also they are subject to a measurable bias toward the court system's "repeat players," who are, overwhelmingly, corporate defendants.⁵²

Legal scholars, who had virtually ignored the Seventh Amendment until 1966, have in recent decades enlivened analysis of the civil jury not as a mere rule of procedure but as an instrument of participatory democracy.

Court decisions, empirical studies, and law review articles are not themselves likely to save the jury (as a century ago they were not sufficient to eliminate it). The right to trial by jury will be preserved in this new century, as before, by the American people themselves.

If history provides a guide, this right may be reinvigorated as part of a grass-roots, populist-style movement pressing for broader changes. In the late 18th and early 20th centuries, those movements enflamed activists who identified with the great majority of working Americans, were alarmed at the power of commercial interests to influence the instruments of government and obtain special protections against accountability, and valued the direct participation of ordinary citizens in governing.

Certainly, the growing activism in favor of campaign finance reform could portend such a movement. So, too, does the growing importance of the inherently democratic Internet.

Perhaps the greatest reason for optimism is that in our history political truths eventually prevail. From the moment

America accepted as self-evident the truth "that all men are created equal," slavery became a lie that was ultimately swept away. The broad attacks on the civil jury are premised on the most corrosive lie that can be told to a democratic society: that the people are incapable of governing. The jury surely needs to be improved, made more effective and even more efficient. And it will be preserved.

Notes

1. Richard B. Schmitt, Trial Lawyers Split Over Tobacco Pact, WALL ST. J., Apr. 22, 1997, at A24.
2. Colgrove v. Battin, 413 U.S. 149, 157 (1973).
3. Alan Howard Scheiner, Note, Judicial Assessment of Punitive Damages, the Seventh Amendment, and the Politics of Jury Power, 91 COLUM. L. REV. 142, 146 (1991).
4. Curiously, legal scholars had virtually ignored the "legislative history" of the Seventh Amendment until publication of Edith Guild Henderson, The Background of the Seventh Amendment, 80 HARV. L. REV. 289, 292-95 (1966). The most meticulous and authoritative analysis remains Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639 (1973).
5. See Wolfram, supra note 4, at 658-61.
6. Joseph C. Wilkinson Jr. et al., A Bicentennial Transition: Modern Alternatives to Seventh Amendment Jury Trial in Complex Cases, 37 KAN. L. REV. 61, 80-81 (1988).
7. This was most true in the New England colonies, based on historical records. See WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830 (1975); Vikram David Amar, Jury Service as Political Participation Akin to Voting, 80 CORNELL L. REV. 203, 218 (1995); see also Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 HASTINGS CONST. L.J. 579, 591-96 (1993).
8. J.M. Beattie, London Juries in the 1690s, in TWELVE GOOD MEN AND TRUE: THE CRIMINAL TRIAL JURY IN ENGLAND, 1200-1800, 214 (J.S. Cockburn & Thomas A. Green eds., 1988).
9. The story of Bushel's case is rendered in lively detail in JOHN GUINTHER, THE JURY IN AMERICA, ch. 1 (1988).
10. See J. KENDALL FEW, IN DEFENSE OF TRIAL BY JURY 144-47 (1993).
11. Wilkes v. Wood, 98 Eng. Rep. 489 (K.B. 1763); Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763).
12. Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 772 (1994).
13. Landsman, supra note 7, at 591.
14. Austin Wakeman Scott, Trial by Jury and the Reform of Civil Procedure, 31 HARV. L. REV. 669, 676 (1918).
15. See FEW, supra note 10, at 157-58.
16. Renee B. Lettow, New Trial for Verdict Against Law: Judge-Jury Relations in Early Nineteenth-Century America, 71 NOTRE DAME L. REV. 505, 517 (1996).
17. ROSCOE POUND, THE DEVELOPMENT OF CONSTITUTIONAL GUARANTEES OF LIBERTY 69-72 (1957).
18. THE FEDERALIST NO. 83 (Alexander Hamilton).
19. THE FEDERALIST NO. 10 (James Madison).
20. THE FEDERALIST NO. 51 (James Madison).
21. See the antifederalist writings quoted in Scheiner, supra note 3, at 145-60 and Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1187-88 (1991).
22. Landsman, supra note 7, at 597.
23. Scheiner, supra note 3, at 152.
24. 2 THE COMPLETE ANTI-FEDERALIST 149 (Hebert J. Storing & Murray Dry ed., 1981); Amar, supra note 21, at 1186, 1188.
25. Letter from Thomas Jefferson to L'Abbe Arnoux (July 19, 1789), reprinted in 15 THE PAPERS OF THOMAS JEFFERSON 282, 283 (Julian P. Boyd ed., 1958).
26. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (Ronald D. Rotunda & John E. Nowak eds., 1987) (1833).
27. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 343 (1979) (Rehnquist, J., dissenting).
28. See e.g., Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794); see also LLOYD E. MOORE, THE JURY: TOOL OF KINGS, PALLADIUM OF LIBERTY 101-12 (1973).
29. Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. DAVIS L. REV. 1169, 1185 n.31 (1995).
30. 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 293-96 (Phillips Bradley rev. ed. 1945) (1835); see also Amar, supra note 21, at 1185-89.
31. Northern Pac. R.R. v. Herbert, 116 U.S. 642 (1886).
32. LAWRENCE MEIR FRIEDMAN, A HISTORY OF AMERCAN LAW 467-87 (2d ed. 1985); Wex S. Malone, The Formative Era of Contributory Negligence, 41 ILL. L. REV. 151, 155 (1946).
33. Edson R. Sunderland, The Inefficiency of the American Jury, 13 MICH. L. REV. 302 (1915).
34. Sparf v. United States, 156 U.S. 51 (1895).
35. Maxwell v. Dow, 176 U.S. 581, 603 (1900).
36. Stephan Landsman, The History and Objectives of the Civil Jury System, in VERDICT: ASSESSING THE JURY SYSTEM 22, 43 (Robert E. Litan ed., 1993).
37. MORTON J. HOROWITZ, THE TRANSFORMATION OF AMERCAN LAW, 1780-1860, at 67-108 (1977); Lawrence M. Friedman, Civil Wrongs: Personal Injury Law in the Late 19th Century, 1987 AM. B. FOUND. RES. J. 351, 369-73.
38. See Landsman supra, note 36, at 46-47; see also Lawrence M. Friedman, Some Notes on the Civil Jury in Historical Perspective, 48 DEPAUL L. REV. 201, 207-08 (1998).
39. 293 U.S. 474, 486 (1935).
40. Swift Rise of NACCA and the Portent of the Big Award, NAT'L UNDERWRITER, July 10, 1952. See generally Samuel B. Horovitz, NACCA and Its Objectives, 10 NACCA L.J. 17 (1952).
41. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989).
42. Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).
43. Feltner v. Columbia Pictures Television, Inc; 523 U.S. 340, 353 (1998); see also Hetzel v. Prince William County, 523 U.S. 208 (1998).
44. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
45. Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996).
46. Honda Motor Co. v. Oberg, 512 U.S. 415 (1994).
47. See 9A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §2529 (1995 & Supp. 1999); James A. Henderson Jr. & Theodore Eisenberg, The Quiet Revolution in Products Liability: An Empirical Study of Legal Change, 37 U.C.L.A. L. REV. 479 (1990); Eric Schnapper, Judges Against Juries: Appellate Review of Federal Civil Jury Verdicts, 1989 WIS. L. REV. 237.
48. See, e.g., Smith v. Department of Ins., 507 So. 2d 1080 (Fla. 1987) (per curiam); State ex rel.Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (1999); Lakin v. Senco Prods. Inc., 987 P.2d 463 (1999); In re Certification of Questions (Knowles v. United States), 544 N.W.2d 183 (S.D. 1996); Lucas v. United States, 757 S.W.2d 687 (Tex. 1988); Sofie v. Fibreboard Corp., 771 P.2d 711 (1989).
49. See, e.g., GUINTHER, supra note 9, at 230-31.
50. See Joe S. Cecil et al., Citizen Comprehension of Difficult Issues: Lessons from Civil Jury Trials, 40 AM. U. L. REV. 727, 764 (1991); see also NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS, AND OUTRAGEOUS DAMAGE AWARDS 175-82 (1995).
51. Richard Lempert, Civil Juries and Complex Cases: Taking Stock After Twelve Years, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 181, 214-19 (Robert E. Litan ed., 1993).
52. See, e.g., Barry R. Furrow, Managed Care Organizations and Patient Injury: Rethinking Liability, 31 GA. L. REV. 419, 493 (1997) (citing authorities).

Jeffrey Robert White is associate general counsel of AAJ.