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2013 Jotwell: J. Things We Like [1] (2013)

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Considering the Civil Jury

Jason M. Solomon, The Political Puzzle of the Civil Jury, 61 Emory L.J. 1331 (2012).

Suja A. Thomas

The civil jury is in this year. In The Political Puzzle of the Civil Jury, Jason Solomon examines the role of the
civil jury as a political institution-in other words, the role of the jury in democracy. Seeking to begin a
discussion in the literature on whether the civil jury serves as a political institution, Solomon exhaustively and
critically examines the justifications for the civil jury in this role. Solomon's is one of several excellent recent
articles on the civil jury; others include John Langbein's The Disappearance of the Civil Jury, and Darrell
Miller's Historical Tests, (Mostly) Unbalanced Rights, and What the Seventh Amendment Can Teach Us About
the Second.

Solomon  begins with a provocative argument that some of the most important cases in the last four terms of the
Supreme  Court, including Snyder v. Phelps, Wyeth v. Levine, Exxon Shipping Co. v. Baker, and Wal-Mart
Stores, Inc. v. Dukes, reflect a distrust of the civil jury and a concern that juries are deciding law-like questions.
As a result, Solomon argues, we must continue to evaluate the jury. In doing this in the past, the focus has been
on whether the jury has the ability to decide cases effectively. The ready response here has been that the ability
of juries to decide cases matches that of judges. In addition to an adjudicative role, however, some scholars
argue that the jury serves as a political institution. Solomon argues that this justification should be fully
assessed, and the competencies of juries to judges should be compared.

Solomon  commences  his analysis of the jury as a political institution by looking at whether the jury serves as a
check on governmental power.  After arguing that the jury does not perform this role, Solomon examines
whether the jury is a check on corporate power, which he also rejects with much evidence. Next, Solomon
wonders whether the jury is important to counteract repeat players. He ultimately concludes, though, that repeat
players actually have more influence over juries than one-time litigants.

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