12 J. Am. Jud. Soc. 166 (1928-1929)
A Program for the Trial of Jury Trial

handle is hein.journals/judica12 and id is 168 raw text is: A Program for the Trial of Jury Trial

1. Plainly the time has arrived when Jury
Trial is to become one of the issues in the
general movement for revision of judicial
institutions. Mr. H-arley's article in the Feb-
ruary number of this JOURNAL has definitely
given it a place on the calendar of the Amer-
ican Judicature Society.
How shall this issue be approached? Of
course, the issue itself stands thus: Shall
Jury Trial be abolished? Or shall it only be
reformed?   No thoughtful person can be
content to leave it as it is.
But the recent demands for its abolition
have been marked by the two prime fallacies
found at all periods in almost all iconoclastic
attacks on an established institution. Either
the attacker calls for abolition on grounds
which are remediable and need only reform,
not destruction. Or the attacker, in calling
for abolition, on specified grounds, fails to
prove that any substitute is demonstrably bet-
ter, on those grounds or on any others.
In the present issue, there is only one con-
ceivable substitute for trial by jury, and that
is trial by a bench of judges. Therefore the
clearest way to deal with the problem is to
phrase the issue thus:
Would Jury Trial, if reformed as much as
feasible, still be inferior to trial by judges?
Thus the reasons on both sides must be meas-
ured  always by   a comparative standard.
There is, for our purposes, no intrinsic good-
ness or badness in jury trial. We must have
some kind of personnel for trying facts.
Jury trial, then, is either better or worse than
judge trial.
Such is the issue.
2. The writer happens to be one who
believes that jury trial, properly reformed, is
on the whole superior to judge trial.
But before surveying the specific defects
alleged against jury trial, let the following
fable convey the spirit of those who agree
with the writer:
The Fable of the Watch That Stopped
A Man came to a Jeweler's Shop with a
Watch, and said: I want one of those new
Swiss Watches that I saw advertised. This
is my old Watch, a Walginson Perfecto; I
bought it for $500 in New York in 1914.
But lately it has been going to Pieces. It
runs down every Week or so. I cannot make
it Go. It is a Failure. And I want a first-
class Modern   Watch, by   that celebrated
Swiss Firm.
The Watchmaker took the Perfecto Watch
in his I-land, opened it, screwed his Eye-
Glass on, and scrutinized the Watch. Then
he said, My Assistant will show you some
of the new Swiss Watches; but will you

excuse me for ten minutes, while you inspect
them?   He then retired to his Workshop.
In less than Ten Minutes, the Watchmaker
returned, with the Perfecto Watch, and said
to its Owner: My friend, you have here
already the finest Make of Watch ever pro-
duced in America, and as fine a Type as any
in the World. But it is in bad Condition,
first because it lacks one or two recent
Improvement Devices, and secondly, because
you have treated it so badly. As to Improve-
ment Devices, I have them here in my Shop
and can insert them for vou at small Cost.
As to bad treatment; in the first place, you
have evidently dropped it in some Muid or
Water, for two or three of the Pinions are
rusted; and you have not had it cleaned since
you bought it; and you must have let the
Children open it and play with it at some
time, for the Hour Hand is bent; and there
are two or three minor features of l)amage,
due to Rough Handling. But all of these
items are remediable.  Let me have the
Watch for a Month, and I will guarantee to
put it in Order as good as new.
As to this Swiss Watch, he went on, I
am ready to sell you one, of course. But my
Advice to you is that it is not as good a
Watch for your Purposes as this Perfecto.
In the first place, the Swiss watch is made of
European steel, which is not so composed as
to stand the wide Temperature Variations in
this country as well as American Steel; and
in the next place, these Swiss Watches are
hand made, and if anything should happen to
break, there is no Spare-part System from
which the broken Part could 'be readily
The Man thanked the Watchmaker for his
Advice, and said Put my American Watch
in First-Class Order, and I will call for it in
30 Days.
Jury trial and the American legal profes-
sion are like the man with the watch. The
fable is a pretty close parallel.
3. And so, to approach the issue in that
spirit, let us enumerate and analyze the vari-
ous alleged demerits of jury trial, according
to whether they ate remediable or not reme-
diable. And let us then analyze the merits of
the revised jury trial as compared to judge
trial. In the course of such enumeration we
can better perceive the real points of differ-
ence of opinion.
In making up this tally of demerits, it will
be enough to use, as the source of the numer-
ois counts of the indictment, half a dozen
recent articles which take a fairly broad sur-
vey of the case, both pro and con. Nothing
has ever been alleged against jury trial that

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