Federal Judges Warning About the Death of Civil Jury Trials

If you doubt that the 7th Amendment is under attack, take a look at this presentation by a current federal judge, cited often in other articles on the need to maintain the right to a jury trial. U.S. District Court Judge William Young has been writing and speaking on the subject for several years, as typified by an article he wrote for the Suffolk University Law Review in 2006 titled, “Vanishing Trials, Vanishing Juries, Vanishing Constitution.” Several paragraphs vividly describe the extent and impact of the degradation of the 7th Amendment (footnotes deleted for ease of reading) and summarizes a number of issues that I will address in individual posts on this website:

The jury system proves the wisdom of the Founders in their utilization of direct democracy to temper the potential excesses of the only unelected branch of government. According to one scholar, “the jury achieves symbolically what cannot be achieved practically–the presence of the entire populace at every trial.” Through the jury, we place the decisions of justice where they rightly belong in a democratic society: in the hands of the governed. The very structural bedrock of our constitutional form of government confirms the centrality of the jury’s role.

(I)t is fair to observe that for decades, business and insurance interests have disparaged our civil juries while the courts have failed to defend the single institution upon which their moral authority ultimately depends. As a result of their assault, the bipartisan majorities in the Congress have restricted access to the American jury severely. The most sophisticated recent analysis has led one commentator to conclude that “a civil justice system without a jury would evolve in a way that more reliably serve[s] the elite and business interests.”…

Our pre-emption jurisprudence, long a matter for narrow construction, today is applied so broadly as to oust state courts (and juries) of their traditional areas of adjudication and replace them with less-protective federal standards, or no remedy at all. The Supreme Court has even preempted older, more comprehensive federal civil rights statutes with newer, more restrictive statutes. The Court also allows federal agencies to trump state laws that interfere with their domain. The judicial system’s preference for arbitration also threatens the American jury. The Supreme Court, in building on a decisional edifice that most commentators consider shaky if not outright wrong, has interpreted the Federal Arbitration Act to supplant juries with arbitrators whenever possible. So, today, citizens cannot trade on the stock exchange, have long distance telephone service, or be employed in many necessary jobs and industries unless they surrender statutory and procedural rights (specifically, relinquishing the right to a jury decision and submitting instead to arbitration)…

Of paramount importance, however, is a matter neither of substance nor procedure, but culture. We federal trial judges appear no longer to revere the jury trial as the central and paramount goal of our American system of justice. We have so “deconstructed the role of the trial judge” that today far too many judges do not understand the concept.

Congress, by adjusting the jurisdiction of the lower federal courts, effectively strips disfavored classes from full access to justice. As a consequence, it restricts, if not extinguishes, cherished individual rights and liberties. This congressional maneuvering is known as “courts stripping.” Because the practice does not implicate the American jury directly (it would be unconstitutional had it done so), Congress accomplishes it largely below the public’s radar and without public debate.