Re: The First Immortal
Sat, 7 Feb 1998 08:52:41 EST

In a message dated 98-02-05 14:16:29 EST, Damien R. Sullivan writes:

> On Feb 5, 8:41am, "Peter C. McCluskey" wrote:
> > >> January 11, 1999 - Michigan sees new economic growth, possibly the
> > >> result of having recently eliminated juries in all nonfederal civil
> > >> trials.
> > I'm puzzled by the connection between economic growth and jury trials.
> > I guess I need to read the book.
> My guess:
> juries give too much in punitive damages, choking growth. Eliminate
> jury trials, and companies will surge forward, unhindered by the
> millstone of high damages.
> I'd bet this is far too simplistic a view of law and the economy, but
> Greg Burch or Robin might be more qualified to say something about this.

[A couple of comments, upon being roused from my literary torpor by mention of
my name . . .]

I haven't read TFI (but soon will), but think Damien is probably on target, at
least as far as expressing one part of a fairly wide-spread negative view of
the role and result of jury trials. The more generalized expression of that
view is that "lay" juries (1) don't do a very good job of judging factual
disputes involving complex or technical matters and/or (2) are too easily
swayed by emotion.

On the first point, opponents of the lay jury point to the increasingly
complex and technical nature of matters brought before the courts, and bemoan
the necessity of using expert witnesses to express such issues in "common
sense" terms that sometimes lose essential matters. Thus the development of
the professional expert witness who may have a minimum of technical expertise,
but who has "jury appeal". And thus the recent spate of (I think laudable)
judicial opinions creating a filter for scientific methodology on such expert
testimony (although that just moves the preliminary assessment of methodology
from the jury room to the bench).

As I and others have written on this factor before, the use of private
arbitration panels in which the arbitrators are people selected for (among
other reasons) their experience and expertise in the field at issue is a
developing trend arising from dissatisfaction with the lay jury as judge of
technical fact questions. The problem is that such arbitration is only
available as a matter of contract: Juries are still the primary -- and, in
most cases, the only -- judges of facts made available by our current legal
system in tort cases. The one exception is the use of "special masters"
appointed by the court (although a party may in some instances move for
appointment of such a master). Unfortunately, special masters are rarely used
in jury trials.

The second point is much less susceptible to rational argument and analysis.
Opponents of the lay jury argue that lay jurors, with little or (usually) no
experience in resolving important disputes between people with whom they have
no personal connection, tend to base their decisions far too greatly on their
"gut" reactions to the emotional aspects of the case. The paradigm example is
the apparently natural human tendency to be less than properly skeptical in
deciding the question of liability when faced with evidence of painful
personal injury. The natural human tenancy to empathize with someone who has
been badly injured causes most people to want to do SOMETHING for the injured
party. In the context of a trial, the only available remedy is the award of
money damages. All too often a clearly injured plaintiff is awarded damages
out of sympathy, despite the fact that the defendant has made a compelling
case that she was not the CAUSE of those damages. Professional judges become
quite literally (and, in my opinion, properly) "hard-hearted" in this
connection: Having seen many similar disputes and having been schooled in the
skepticism inherent in evidentiary law and the procedural due process inherent
in the adversary legal system, they more easily reserve judgment and separate
natural human empathy from the task of deciding causation.

There are those who point out, perhaps ironically, that private arbitrators
suffer from the same failings as the lay juror on this second point. Most
arbitrators perform that function only a few times in their lives. Thus,
while they may be more technically competent judges of complex factual
questions, they tend to be less adept at isolating their own personal
emotional response to the issue presented to them. This factor tends to be
offset by the subject matter usually presented to professional arbitrators,
which by and large tends to be in less emotional disputes to begin with (a
construction contract or maritime charter dispute, for instance).

Proponents of the lay jury advocate their use for two main reasons: (1) lay
jurors represent a means of tapping a community's standards of common sense in
deciding basic human disputes and (2) they serve as a check on the sometimes
arbitrary exercise of power by a professional judge. The first of these
points is difficult to attack, as it is usually expressed in terms so closely
allied with the democratic ideal of our age that to do so risks being labeled
the tool of tyrants or plutocrats. The second (closely related) point has
more rational appeal, as it represents a systemic argument based on the ideal
of a legal system characterized by procedural and substantive checks and
balances. On more than one occasion I have heard an otherwise conservative
lawyer ruefully admit that she was glad of having a jury to protect her client
from a cantankerous judge. In any event, proponents of the lay jury
ultimately appeal to essentially political concepts to support continuation of
that institution.

The extropian ideal of a polycentric legal system appeals to me because it
holds out the promise of experimentation with all of the elements discussed
above. It isn't difficult to imagine many different procedural variants in
which professional judges, technical arbitrators and lay jurors are mixed,
matched and set in dynamic tension to achieve an optimal system of dispute
resolution for disputes of different kinds. The U.S. federalist experiment
has been a beginning in this direction, as has the development of arbitration
law as a regime of private law-by-contract. The common law's and modern
procedural codes' division of labor between judge and jury in matters of law,
procedure and fact is another. Abolition of lay juries in one of the states
would be an excellent experiment and forum choice clauses would allow parties
-- in contract disputes at least -- to engage in a determination of the merit
of such an experiment.

Greg Burch <>----<>
Attorney ::: Director, Extropy Institute ::: Wilderness Guide -or-
"Good ideas are not adopted automatically. They must
be driven into practice with courageous impatience."
-- Admiral Hyman G. Rickover