Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
jury’s authority so substantially as to make abolishing the institution less imperative. Green
expressed much the same idea when he wrote that
the extravagant pains we take to preserve the integrity of jury trial in final analysis
are completely counteracted in the more extravagant provisions which we make for
[judicial] review, together with the remarkable technique . . . courts have developed
for subjecting every phase of trial to their own scrutiny and judgment.
LEON GREEN, JUDGE AND JURY 390-91 (1930). The Green and Lerner explanation of the
persistence of the civil jury system is that jury trials survive in the United States, and only in the
United States, in significant part because they exist in theory but barely exist in practice. The
pattern grows stronger when we see that jury trials are expressly disallowed in the Federal Tort
Claims Act, the Longshoreman and Harbor Workers Compensation Act, and the Miller and
Tucker Acts (governing contract claims against the federal government). There are no juries in
Tax Court, Customs Court, or the Court of Claims. Workers’ compensation did away with juries
for work accidents. And entire fields such as admiralty and maritime law, naturalization and
immigration law, and bankruptcy law are largely conducted in the absence of juries. See Edward
Devitt, Federal Civil Jury Trials Should Be Abolished, 60 A.B.A. J. 570 (1974).
Another distinctive factor in the U.S. is the politically influential plaintiffs’ bar, which
responded by embracing the beleaguered institution. Even as judges attempted to pry tort cases
away from the jury and scholars and politicians attempted to pry personal injury cases away from
civil trials entirely, in the 1950s and early 1960s, the plaintiffs’ bar became a powerful interest
group defending the common law trial and the jury. Rallying against administrative alternatives
as “bureaucratic socialism” and “modern totalitarianism,” against which only the jury could stand
tall, the plaintiffs’ bar lobbied loudly and in many cases successfully against the displacement of
the ancient Anglo-American institution. See JOHN FABIAN WITT, PATRIOTS AND COSMOPOLITANS
209-10 (2007).
Setting aside the continuing controversy over the merits of the jury, virtually everyone
agrees that in day-to-day practice juries are deciding less and less. In a review of data on state and
federal court trials through the mid-2000s, Professor Marc Galanter discovered a century-long
decline in the proportion of civil trials terminating in or after trial: while about 20% of cases
ended in trial in 1938, just 2% did in 2003. In fact, even as the absolute number of cases in
federal and state systems has increased, there has still been a decline in the absolute number of
civil trials. In 1992, federal courts held 1,728 tort trials with juries, and state courts in the
seventy-five most populous counties held 9,431. Yet in 2001, federal courts held 1,471 tort trials
with juries, and the county courts held 7,218. That’s a respective 33% and 24% decline in jury
trials for tort cases over the course of a decade. Marc Galanter, The Hundred-Year Decline of
Trials and the Thirty Years War, 57 STAN. L. REV. 1255, 1256-59 (2005).
6. Replacing the jury. What, if anything, has replaced the jury? In addition to more judgeintensive
inquiries into the plausibility of pleadings, summary judgment, and class certification
processes, civil trials have been dominated by a heightened judicial role in scrutinizing expert
witnesses (in what are known as Daubert hearings). Professor Richard Nagareda contends that
“[t]he full-scale, front-to-back, common law trial before a jury has nearly vanished. Its
replacement effectively consists of a regime of sequenced trial-like proceedings on what are
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