An English jury.  Can America dispense with this inheritance?

A fascinating amicus brief (copy here) arrived on January 6, 2007, in the office of the Clerk, Supreme Court of Texas.  The author, a law professor at Baylor University, submitted it pro bono.  His purpose?  To lament what he sees as the Court’s role in hastening the demise of trial by jury in civil cases. 

Writing as private citizen, Professor Gerald R. Powell regrets that the Court’s recent 5-4 decision in an antitrust case "exemplifies another reason that trial by jury is endangered."  (See the majority opinion in The Coca-Cola Co. v. Harmar Bottling Co., No. 03-0737 (Tex. Oct. 20, 2006) here.)  Five justices, he points out, found no evidence of anticompetitive conduct despite two months of trial, a verdict finding that Coca-Cola monopolized the relevant market, and a unanimous affirmance by the court of appeals.  He continues:  "Every time a court takes away a jury verdict the bedrock beneath the right to trial by jury shudders ever so slightly.  The tremors are now felt with increasing frequency."

Skeptical of growing complaints about the vanishing jury trial, Blawgletter did a little research.  It found that, in 1996, according to the "Jury Activity" report by the Texas Office of Court Administration (available here), Texas district courts tried 2,971 civil cases to verdict and directed verdicts in 253.  Ten years later, the same courts put 1,335 civil cases to juries while instructing verdicts in 459 cases.

What accounts for the 55 percent drop in jury trials and the 81 percent increase in taking cases out of jurors’ hands?  Has the Court’s recent record of overturning verdicts, restricting expert evidence, curtailing class actions, and taking other steps that make cases harder to win for plaintiffs produced filing of fewer cases, more (and cheaper) settlements, and greater boldness by trial judges to kick cases out of court?  Blawgletter shudders to think that the subject deserves study.

Barry Barnett

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