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Copyright (c) 1987 The Harvard Law Review Association. Harvard Law Review APRIL, 1987 100 Harv. L. Rev. 1363 LENGTH: 11871 words NOTE: PRACTICE AND POTENTIAL OF THE ADVISORY JURY. HIGHLIGHT: Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislature. The execution of the laws is more important than the making [of] them. -- Thomas Jefferson (1) TEXT: [*1363] Jury trial in civil actions is available in this country when it is guaranteed in the Constitution (2) or when the trial judge believes it is a good idea. (3) An important, substantial body of scholarship has analyzed the former type of jury usage; (4) this Note examines the latter. (5) Part I identifies the broad discretion of the trial judge to call and submit questions to an advisory jury. Part II examines the advisory jury in the context of recent experiments in finding alternative, flexible processes for dispute resolution. Part III then identifies the strong connection between advisory jury use and the goal of community participation in legal proceedings. The Note concludes with a proposal for greatly expanded use of the advisory jury as one way to maintain the legitimacy of legal decisions in light of Realist and radical critiques of the legal system. [*1364] I. USING THE ADVISORY JURY The seventh amendment provides that in civil actions, "the right of trial by jury shall be preserved." (6) Courts today preserve this right by applying an historical test that defines modern jury rights according to the practice of American courts at the time of the Constitution's ratification. (7) The advisory jury, now authorized by Federal Rule of Civil Procedure 39(c), (8) is consistent with this historical approach. Although there was no right to a jury in cases in the old courts of equity, the chancellor trying a case could appoint at his discretion an advisory jury "to enlighten the conscience of the court." (9) The present discretionary power to appoint an advisory jury descends directly from the chancellor's prerogative. (10) Modern American judges, however, need not exercise their discretion as the chancellor exercised his. They must decide in light of contemporary goals whether or not it makes sense to appoint an advisory panel.
Few formal constraints limit the modern trial judge's use of the advisory jury. (11) This nearly unbounded discretion exists because an advisory jury trial is not formally tried before the jury at all, but rather before the judge. Federal Rule 52(a) and most parallel state rules provide that the judge must enter findings of fact and of law in cases with advisory juries, just as she must do when there is no jury. (12) Most importantly, the judge's own findings entirely displace those of the advisory jury on appeal. (13) "Review on appeal is of the [*1365] findings of the court as if there had been no verdict from an advisory jury." (14)This invisibility of the advisory jury on appeal allows the trial judge to be informal, experimental, or even sloppy with the advisory jury without risk of reversible error. As a result, trial with an advisory jury may proceed with the same relaxed rules of procedure that judges typically use to increase trial efficiency when deciding cases themselves. [*1365]
Because an advisory jury trial is tried formally before the bench, the judge is free to disregard the advisory jury's findings. In practice, however, a judge who believes it worthwhile to empanel such a jury will likely find it worthwhile to listen to what that jury has to say. Federal courts have suggested several standards for giving weight to the advisory verdict. In two early cases, trial judges suggested that they would adhere to the findings of the advisory jury as long as the evidence sustained them (15) and they were not "clearly erroneous." (16)More recently, one court followed an advisory jury's finding as to liability when that finding was "a valid conclusion reached after proper consideration of the evidence." (17) That court also adopted the advisory damage award, which it described as "very much on the high side but not so high as to be unacceptable." (18) Another court suggested that the advisory verdict is like an additional piece of evidence: the verdict "is only part of the data taken into consideration in arriving at the court's independent conclusion." (19) Similarly, state courts have said that an advisory verdict deserves "'grave consideration'" (20) and that the trial judge "must give it great weight." (21) These various [*1366] statements emphasize both the broad discretion that the individual judge enjoys in selecting the weight to give the advisory verdict and the substantial respect that the verdict deserves. (22)
Based on jury practice at the time of the Constitution's ratification, (23) a party today has a right to a jury trial in cases that would formerly have been tried in courts of law, but no such right in cases that would have been tried in the separate courts of equity. (24) Although this distinction between law and equity determines jury rights, "[a]t no time in history was the line dividing equity from law altogether -- or even largely -- the product of a rational choice between issues which were better suited to court or to jury trial." (25) State courts (26) have used advisory juries to help overcome this arbitrariness in the jurisdiction of equity. For example, parties have a right at law to a jury trial in a case for damages for breach of contract, with the jury assessing both liability and the extent of monetary damages. (27) Courts have extended this traditional role of the jury into equity in disputes regarding contract-like documents such as deeds (28) and promissory notes. (29) Similarly, courts have used advisory juries in cases in which, instead of straight monetary damages, a party asks for equitable [*1367] rescission, (30) cancellation, (31) revocation, (32) foreclosure, (33) specific performance, (34) declaratory relief, (35) injunctive relief, (36) accounting, (37) or quieting of title. (38) Advisory juries have also been used in areas that, like equity, have been administered through separate, juryless court systems, such as probate (39) and admiralty. (40) In each of these areas, the advisory jury has helped bring consistency to jury practice by hearing cases that are closely analogous to cases juries ordinarily hear by right.
II. THE ADVISORY JURY AS A FORM OF ALTERNATIVE DISPUTE RESOLUTION
As a flexible adjunct to traditional courtroom practice, the advisory jury is one of a wide variety of informal methods of adjudication both within (41) and outside (42) the court system that together comprise the tools of the Alternative Dispute Resolution (ADR) movement. Like its myriad forms, the goals of ADR are diverse: to relieve court congestion, facilitate access to justice, enhance community involvement [*1368] in legal adminstration, and provide more "effective" dispute resolution generally. (43) Use of the advisory jury supports these goals.[*1368]
One innovative use of the advisory jury -- the "summary jury trial" -- may especially help judges achieve the goal of efficient, effective administration of justice. (44) Federal District Judge Thomas Lambros developed this summary proceeding to encourage settlement of lengthy cases just before trial. (45) Judge Lambros argues that a significant number of cases fail to settle because the parties disagree about probable juror behavior and that the summary trial resolves this disagreement. With the parties themselves present, the attorneys have one hour in the summary trial to decribe the evidence found in discovery and to make arguments to the jury. The jury then returns an advisory verdict. Afterward, the attorneys and jurors sometimes ask each other questions about the process and the decision. More than two hundred summary jury proceedings have been conducted so far in six different states, with "overwhelming success" in facilitating settlement. (46)
Within the trial, the modest impact of the advisory jury on trial length suggests that the single goal of reducing administrative costs should not ordinarily be the determining factor in a judge's decision whether to use the advisory jury. In what remains the most comprehensive study of trial lengths, three commentators who studied the courts in the 1950s estimated that jury trials are on average forty [*1369] percent longer in duration than nonjury trials. (47) The extra time that a jury trial requires, however, is often traceable to "repeated bench conferences, prolonged argument on evidentiary matters, and lengthy discussions about proposed requests for instructions." (48)These delaying factors are largely absent from a trial with an advisory jury, because the trial judge's own findings in effect erase any errors in instructions or evidence. (49) For this reason, the judge is also free to exercise discretion over the process of jury selection and may permit jurors to take notes, ask their own questions, or do supplemental reading at home. (50) The resulting informality and flexibility of a trial with an advisory jury should cut the time difference substantially below the forty percent figure that applies to a trial by a jury by right. (51) The problem of case backlog in federal courts is serious enough that even a modest increase in trial time is potentially significant. Modest differences in the length of individual trials, however, may have only a remote relationship to the aggregate caseload. (52)The uncertain effect of the advisory jury on the judge's case load and its modest effect on trial length indicate that efficiency concerns by themselves should not ordinarily prevent use of the advisory panel.
One low-cost use of the advisory panel has been to reduce the likelihood of conflicting decisions in complex trials in which both the judge and the jury act as factfinders. For instance, one or more of a group of co-defendants may have a constitutional right to a jury trial, though the other defendants do not, with much of the evidence common to all. In these cases, the judge can ask the jury empaneled by right to recommend an advisory verdict as to those parties for whom there is no right to a jury trial. By taking account of the jury's advisory recommendation in reaching her own findings, the judge is better able to avoid disparate treatment of the various defendants. (53) This situation often arises, for example, in civil actions in which the [*1370] federal government is joined as a defendant. The private parties in these cases are usually entitled to a jury trial for the issues between them, but the joinder of the government takes place under the Federal Tort Claims Act, (54) which expressly precludes a jury by right. (55) Several courts have used a single jury in such cases to render both a binding verdict as to the private defendant and an advisory verdict as to the government. (56) Similarly, a party may sometimes have a right to a jury trial of some issues in a case but not of others, with a substantial overlap of evidence. (57) Here, too, the jury empaneled by right may give an advisory verdict as to the issues for which no right to a jury attaches. Because the jury that renders the advisory verdict is already present by right, the judge gains the benefit of the advisory finding with essentially no additional outlay of judicial resources.
Juries and advisory juries support a further goal of ADR: to give priority to broad community participation in the making of the legal order. (58) Although courtroom efficiency has been the primary focus of recent work on ADR, (59) historically the use of alternative procedures for resolving disputes has emphasized the goal of community participation. As early as the eighteenth century, Lord Mansfield used advisory juries of merchants in equity to help decide commercial cases. (60) Whereas traditional legal theory depicted the judge as interpreting immutable principles of natural law to decide cases, Mansfield's practice depended instead on a vision of merchant law as man-made and contextually contingent. (61) More recently, Jerold Auerbach has emphasized [*1371] a recurring vision of law as residing in the community of people who use that law. (62) He characterizes the diverse procedures that were used to settle disputes in colonial America, in immigrant communities, and in commercial settings, as all reflecting a search for "justice beyond law." (63) The use of lay judges both in the United States (64) and in other countries (65) similarly depends on a view of law as accessible to nonexperts. This view of law strongly supports greater use of the jury and the advisory jury. In the next Parts, the discussions of community participation and of a radical proposal for the advisory jury extend this argument and identify its limitations.
III. THE ADVISORY JURY AND COMMUNITY PARTICIPATION IN THE LEGAL PROCESS
Like the jury by right, the advisory jury expands community participation in the application of the law. (66) As one commentator has stated: "The jury system . . . engrafts community values onto our law . . . . It is difficult to conceive of a better mechanism than the jury for mirroring community values and establishing standards to which members of the community must conform . . . . [T]he jury is [*1372] an instrument of participatory democracy." (67) To enable them to perform this democratic role, juries are drawn from panels or venires that must be reasonably representative of the composition of the community. (68) In contrast, judges poorly reflect the broader community. Judges are far more consistently white, formally educated, male, middle aged, and affluent than the broader community that sits on juries. (69) Judges' narrow backgrounds inevitably create biases. (70) As Dean Ely has written,
Experience suggests that . . . there will be a systematic bias in judicial choice of fundamental values, unsurprisingly in favor of the values of the upper-middle, professional class from which most lawyers and judges . . . are drawn. People understandably think that what is important to them is what is important, and people like us are no exception. (71)
Insofar as increased participation in the decisionmaking process by people from outside this narrow group can diminish the effect of these biases, the use of the advisory jury to bring about greater community participation is an important goal.
The community participation element of advisory juries makes them especially attractive to judges trying cases under civil obscenity statutes. (72) In these cases, the issue for the judge is whether to issue a prospective civil injunction against the continued activities of an adult book store or movie theatre. Because the cases arise in equity, the defendants have no right to a jury trial. The Supreme Court's community-based obscenity standard for constitutional restraints of obscene material, (73) however, has caused judges increasingly to rely [*1373] on juries and advisory juries. (74) The advisory jury also performs an accountability function in this area, acting as a community check on the zeal of the public prosecutor. (75)
Similar concerns support the use of the advisory jury in the application of the death penalty. The defendant's right to a jury trial extends only to the question of guilt, not to sentencing. (76) Yet the legal standard that judges apply in capital sentencing is extraordinarily subjective, calling for a determination of whether the crime was "vile," "horrible," or "inhuman." (77) Perhaps recognizing that use of the death penalty ultimately depends on ethical judgments that are not distinctively "legal," (78) most states provide for jury sentencing in capital cases, although some leave sentencing to the judge acting on her own. (79) [*1374] Between these poles, legislatures may assign sentencing duties to statutory advisory juries. (80) As on the civil side, the involvement of people from the broader community gives content to an imprecise and subjective legal standard and legitimizes the decision of the lone judge.
Although the advisory jury brings community participation to areas like obscenity and the death penalty, this participation draws only on the local community. This local character of juries is of special significance in federal courts, which are charged with the implementation of national policies. Paul Freund has argued that federal courts perform their "most useful task in repressing the parochialism of local interests." (81) This central role of the courts may clash with use of the advisory jury in key policy areas. In obscenity and death penalty cases, local majorities acting through juries and advisory juries may thwart the important national goals of tolerance (82) and impartial administration of justice. (83) These dangers illustrate that although advisory juries represent communities, the communities at times may be too narrow in scope.
The danger of local community power has explicitly guided interpretation of jury rights under title VII of the Civil Rights Act of 1964. (84) The Act established a national goal of nondiscrimination aimed especially at the pattern of officially sanctioned racial segregation in the South. (85) Although title VII contains no specific provision about jury use and the legislative history is unclear on the point, (86) [*1375] courts have held that there is no right to a jury under title VII and have further been reluctant to use advisory juries. (87) This refusal by federal judges to use jury procedure in title VII actions has allowed them to insulate the national policy of nondiscrimination from possible nullification by the same local majorities whose discriminatory conduct the Act was designed to prevent. (88)
The problem of parochialism suggests that divergence of local opinion from the norms of the broader polity should strongly militate against the use of advisory juries. Under title VII, the risk that local juries will obstruct national policy is high, and courts have appropriately been unwilling to take that risk. By contrast, courts have been far more willing to empanel advisory juries in cases brought under the Federal Tort Claims Act (FTCA), (89) which expressly precludes a jury by right. (90) Under this statute, too, there is at least a theoretical possibility that local majorities, acting through juries, could wield ultimate control over national policy. But hostility in the local community to federal policy regarding torts is far less likely than local animus against federally ordered desegregation. In any given case, judges must weigh the risks of parochialism against the benefits to be gained from the use of juries. With less to fear from local majorities, courts have properly used advisory juries much more often under the FTCA than under title VII.
By excluding advisory juries from cases arising under title VII, courts protect against the significant danger that discrimination by local majorities would prevent effective enforcement of the Act. Sensitivity to similar dangers may aid judges in obscenity and capital sentencing cases, in which jury participation, although valuable, may also introduce local biases. One possibility in obscenity cases is for judges to give greater deference to an advisory verdict that favors free expression, because such a verdict can only protect against the stifling effect of local prejudices. (91) Judges concerned [*1375] about discriminatory [*1376] application of the death penalty could similarly use the advisory jury only as an instrument of mercy, (92) deferring to a jury's recommendation of a life sentence but subjecting a recommendation of death to scrutiny for possible discrimination. (93) These approaches provide possible ways for judges to gain the advantages of community participation in these controversial areas while minimizing the effects of local bias.
Since at least the 1920s, writers identified with the Realist school and, more recently, with the Critical Legal Studies (CLS) school of legal scholarship have on various levels attacked the legitimacy of judicial lawmaking. (94) Like the jury by right, the advisory jury increases the legitimacy of the administration of law through the participation of the people who live under that law. (95) The graver the crisis of legitimacy in the legal order, the greater is the need for more widespread community involvement in the court system through the jury and the advisory jury. This greater involvement could take place on a panoply of issues from contract law to administrative and corporate law, areas in which the local biases identified in the preceding section do not seem to apply. In such areas, in which legal rules are often as vague and subjective as those applying to obscenity and the [*1377] death penalty, the use of the advisory jury as a device to help maintain legal legitimacy is potentially its most important function.
It is beyond the scope of this Note to evaluate the merits of the Realist and CLS writers' positions, but it is possible to identify some of their basic arguments. The Realist and CLS writers attack the process of judicial decisionmaking at every level. They identify legal method and language as obscuring the basic value choices that lie behind legal decisions. (96) They attack the supposed objectivity of the judge by stressing the manipulability of rules and precedent, (97) and condemn the courts' record as compared to that of more majoritarian bodies. (98) Their analyses depict the very ceremony of courtroom procedure as an exercise in domination. (99) [*1377]
Such an expansion of jury usage could take place in a wide array of areas in which the dangers of local bias do not appear significant. For example, advisory juries could routinely hear the whole range of cases in equity identified in the first part of this Note, much as they currently hear analogous cases that happen to fall outside of equitable jurisdiction. (104) Similarly, one commentator identifies the highly subjective problem of the "reasonableness" of conduct as a routine jury question that recurs in areas now outside the jury's reach. He urges an expansion of jury use to make community norms the standard of what is "reasonable" in fields like commercial law, malicious prosecution, and false imprisonment. (105) So too, the lone judge currently decides issues [*1378] of contract "unconscionability." Yet this term is essentially without content except in terms of the community's sense that contracting parties could not freely have agreed to some types of contract terms or that, even when agreement was present, the public's sense of justice prevents enforcement of some types of agreements. (106) As with obscenity, the subjectivity of unconscionability makes community participation in the decisionmaking process crucial for legitimacy.
In administrative and corporate law, judicial inquiry similarly hinges on vague, subjective standards of "good faith," "ordinary prudence," "rationality," "caprice," and "arbitrariness." (107) These legal terms describe some everyday concepts: that people should think carefully about their actions when other people are involved, that public responsibility means a duty to go beyond selfish motives, and so on. Because these concepts are so subjective, there is good reason to [*1379] believe that decisions ultimately depend on the values -- not the understanding or expertise -- of the decisionmaker. (108) Jury participation is necessary if judicial decisions in these areas are to be more than reflections of the particular interests and values of the narrow class from which most judges are drawn.
This use of juries to rule on the broadest range of questions characterized jury procedure in this country at the time the Constitution was ratified. In contract law, for example, broad jury discretion in the eighteenth century meant that "the community's sense of fairness was often the dominant standard in contracts cases." (109) With this discretion, the jury was far more than a factfinder. "In the United States, during the late eighteenth and early nineteenth centuries, the jury was legally empowered to decide both the facts and the law of a case in rendering its verdict." (110) This power of the jury to decide both the facts and the law "reached its fullest development at the time the seventh amendment was adopted." (111) If courts today are to base modern [*1379] jury rights on the practice at the time of ratification, (112) it should be the denial of this power that is constitutionally suspect.
The advisory jury is much better suited than the jury by right to extend jury practice. The discourse of the advisory jury is not bound up in the doctrine of the jury by right; contemporary reasons for using the jury take the place of historical categories. The question is only whether jury involvement in a particular case will be beneficial. Further, the extent of advisory jury use does not depend on the centralized direction of the Supreme Court. Instead it is individual state and federal trial judges who can use their discretion both to send more cases to advisory juries and to give more issues to juries by right for consideration in an advisory capacity.
V. CONCLUSION
Endnotes:1. Letter of Thomas Jefferson to L'Abbe Arnond (July 19, 1789), reprinted in 5 THE WORKS OF THOMAS JEFFERSON 48 (Fed. ed. 1904).2. The seventh amendment to the United States Constitution provides: "In Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." U.S. CONST. amend. VII.3. Federal Rule of Civil Procedure 39(c) provides:In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury, or, except in actions against the United States when a statute of the United States provides for trial without a jury, the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right. FED. R. CIV. P. 39(c) (emphasis added). Most states authorize the advisory jury in their rules of procedure. See, e.g., ALA. R. CIV. P. 39(c); ALASKA. R. CIV. P. 39(c); ARIZ. R. CT. 39(k); ARK. R. CIV. P. 39(c); CAL. R. CT. 377. Even in the few states in which there is no codified authorization, state judges may call an advisory jury as part of their traditional equitable powers. See, e.g., Gulf Life Ins. v. Urquiaga, 251 So. 2d 904 (Fla. Ct. App. 1971) (adhering to traditional, equitable rules of advisory jury usage, in the absence of codified rules).4. See, e.g., McCoid, Procedural Reform and the Right to Jury Trial: A Study of Beacon Theatres, Inc. v. Westover, 116 U. PA. L. REV. 1 (1967); Wolfram, The Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639 (1973).5. Only a few commentators have examined the judge's discretion to call an advisory jury. See 5 J. MOORE, J. LUCAS & J. WICKER, MOORE'S FEDERAL PRACTICE @ 39.10 (2d. ed. 1986 & Supp. 1986-87) [hereinafter MOORE'S FEDERAL PRACTICE]; 9 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL @ 2335 (1971 & Supp. 1986); Guggenheim, A Note on the Advisory Jury in Federal Courts, 8 FED. B.J. 200 (1947).6. U.S. CONST. amend. VII. So far, the seventh amendment right to a civil jury has only been applied to the federal courts. See Alexander v. Virginia, 413 U.S. 836 (1973) (per curiam); Melancon v. McKeithon, 345 F. Supp. 1025 (E.D. La. 1972), aff'd sub nom. Mayes v. Ellis, 409 U.S. 943 (1972). In state courts, the advisory jury supplements the state right to jury trial.7. The language of the seventh amendment was the product of a compromise among the drafters to accommodate the diversity of jury practice in the 13 states. The result of this compromise was that the right would "be preserved" as it stood prior to ratification. See Henderson, The Background of the Seventh Amendment, 80 HARV. L. REV. 289, 335-36 (1966); Wolfram, supra note 4, at 639-49. But see infra note 114.8. See supra note 3.9. 5 MOORE'S FEDERAL PRACTICE, supra note 5, @ 39.10.10. See id.11. See Waltz, Judicial Discretion in the Admission of Evidence Under the Federal Rules of Evidence, 79 NW. U.L. REV. 1097, 1103 (1985) (identifying the judge's discretion to appoint an advisory jury as an example of "decisionmaking unhedged by any formal constraints or guidelines [so that] a judge exercising it need never worry that an appellate court will find his ruling in error").12. Federal Rule of Civil Procedure 52(a) states: "In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon." FED. R. CIV. P. 52(a) (emphasis added).13. "[T]here can be no review of supposed errors relating to rulings before and instructions to the advisory jury." Ashland v. Ling-Temco-Vought, Inc., 711 F.2d 1431, 1438 (9th Cir. 1983) (quoting 9 C. WRIGHT & A. MILLER, supra note 5, @ 2335, at 127); see Chicago & N.W. Ry. v. Minnesota Transfer Ry., 371 F.2d 129, 130 (8th Cir. 1967); Frostie Co. v. Dr. Pepper Co., 361 F.2d 124, 126 (5th Cir. 1966). The great majority of state courts also follow this rule, although several states have held that a judge's instructions may serve as a ground for reversal when those instructions make it obvious that the judge herself had a basic misconception of the governing law. See J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala. 1981); Kostolansky v. Lesher, 95 Ariz. 103, 387 P.2d 804 (1963); King v. H.J. McNeel, Inc., 94 Idaho 444, 489 P.2d 1324 (1971).14. Cox v. Babcock & Wilcox Co. 471 F.2d 13, 14 (4th Cir. 1972) (quoting 9 C. WRIGHT & A. MILLER, supra note 5, @ 2335, at 127); accord Chicago & N.W., 371 F.2d at 131; American Lumbermens Mut. Casualty Co. v. Timms & Howard, 108 F.2d 497, 500 (2d Cir. 1939); 5 MOORE'S FEDERAL PRACTICE, supra note 5, @ 39.10[3].15. See Firemen's Inc. Co. v. Smith, 83 F. Supp. 668, 671 (W.D. Mo. 1949), aff'd, 180 F.2d 371 (8th Cir. 1950), cert. denied, 339 U.S. 980 (1950).16. Mahon v. Bennett, 81 F. Supp. 901, 903 (W.D. Mo. 1948), rev'd on other grounds, 180 F.2d 224 (8th Cir. 1950).17. Graham v. Milky Way Barges, Inc., 590 F. Supp. 721, 726 (E.D. La. 1984).18. Id. at 72719. Birnbaum v. United States, 436 F. Supp. 967, 988 (E.D.N.Y. 1977), remedy modified, 588 F.2d 319 (2d Cir. 1978).20. Sprenger v. Sprenger, 146 N.W.2d 36, 39 (N.D. 1966) (quoting Peckham v. Van Bergen, 8 N.D. 595, 599, 80 N.W. 759, 761 (1899)).21. Smith v. Williams, 575 S.W.2d 503, 506 (Tenn. Ct. App. 1978). The same court has said that a trial judge acts "'in the teeth of the verdict'" in rejecting even an advisory finding. See State ex rel. Webster v. Daugherty, 530 S.W.2d 81, 88 (Tenn. Ct. App. 1975) (quoting Orgain v. Ramsey, 22 Tenn. (1 Hum.) 580, 580-81 (1842)).22. Professors Wright and Miller argue that any statement of judicial deference to an advisory verdict "misconceive[s] the function of an advisory jury and the complete freedom the judge has in using its findings." 9 C. WRIGHT & A. MILLER, supra note 5, @ 2335. This statement correctly emphasizes the judge's formal discretion to disregard completely the advisory verdict, if she so chooses. See supra p. 1364. Nonetheless, professional and ethical norms of respect for the jury should guide judges in the best use of this discretion. The statements of deference to advisory juries in state and federal court opinions are best understood as proper affirmations of this respect, not as "misconceived" attacks on the judge's formal powers.23. See supra p. 1364.24. Despite its expansion of the scope of "law" and reduction of the scope of "equity" in response to procedural changes brought about by the merger of the two systems, the Supreme Court has reaffirmed the law/equity distinction as the analytic basis for modern jury rights. See Dairy Queen, Inc. v. Wood, 369 U.S. 469, 473, 478-79 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 507-09, 510-11 (1959).25. James, Right to a Jury Trial in Civil Actions, 72 YALE L.J. 655, 661 (1963); see Wolfram, supra note 4, at 731.26. Unfortunately, information on the use of advisory juries in state trial courts is only accessible through passing references in the published state appellate court decisions. These appellate sources are particularly weak because the use of the advisory jury in trial courts presents essentially no issues for appellate review. See supra pp. 1364-65. As a result, a large practice of advisory jury usage in state courts receives short treatment in this Note, and the discussion focuses disproportionately on the use of advisory juries in federal cases.27. See Atlas Roofing Co. Inc., v. Occupational Safety and Health Review Comm'n., 430 U.S. 442, 459 (1977); 5 MOORE'S FEDERAL PRACTICE, supra note 5, @ 38.11[6].28. See, e.g., In re Marriage of McNeill, 160 Cal. App. 3d 548, 555, 206 Cal. Rptr. 641, 644 (1984); Shepard v. First Am. Mortgage Co., 289 S.C. 516, 516, 347 S.E.2d 118, 119 (Ct. App. 1986).29. See, e.g., J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834, 839 (Ala. 1981); Jarnagin v. Ditus, 198 Kan. 413, 413, 424 P.2d 265, 266 (1967).30. See, e.g., Thompson v. Occidental Life Ins. Co., 9 Cal. 3d 904, 909, 513 P.2d 353, 355, 109 Cal. Rptr. 473, 475 (1973); Albany Motor Inn and Restaurant, Inc., v. Watkins, 85 A.D.2d 797, 445 N.Y.S.2d 616, 617 (1981).31. See, e.g., McNeill, 160 Cal. App. 3d at 555, 206 Cal. Rptr. at 644; Quazzo v. Quazzo, 136 Vt. 107, 109, 386 A.2d 638, 640 (1978).32. See, e.g., In re Fanelli's Estate, 336 So. 2d 631, 632-33 (Fla. Dist. Ct. App. 1976).33. See, e.g., Kaplan v. 2108-2116 Walton Ave. Realty Corp., 103 Misc. 2d 223, 226, 425 N.Y.S.2d 765, 767 (App. Term. 1980); Quazzo, 136 Vt. at 109, 386 A.2d at 640.34. See, e.g., Justus v. Clelland, 133 Ariz. 381, 382, 651 P.2d 1206, 1207 (Ct. App. 1982); Jacobs v. Tenneco W., Inc., 186 Cal. App. 3d 1413, 1413, 231 Cal. Rptr. 351, 352 (1986).35. See, e.g., Barnett v. Beck, 481 So. 2d 348, 349 (Ala. 1985); Meriwether v. Crown Inv. Corp., 289 Ala. 504, 507-08, 268 So. 2d 780, 782-83 (1972).36. See, e.g., Carroll v. Hurst, 103 Ill. App. 3d 984, 986, 431 N.E.2d 1344, 1345 (1982); Neal v. Darby, 282 S.C. 277, 279, 318 S.E.2d 18, 20 (Ct. App. 1984).37. See, e.g., Karber v. Karber, 145 Ariz. 293, 294, 701 P.2d 1, 2 (Ct. App. 1984); Sasser v. DeLorme, 56 Or. App. 630, 632, 642 P.2d 1192, 1193 (1982).38. See, e.g., Richardson v. Casey, 6 Ariz. App. 141, 142, 430 P.2d 720, 721 (1967); Bolyea v. First Presbyterian Church, 196 N.W.2d 149, 150 (N.D. 1972).39. See, e.g., In re Estate of Moulton, 365 N.W.2d 335 (Minn. Ct. App. 1985); Estate of Thorley, 579 P.2d 927, 929, 930 (Utah 1978).40. See, e.g., Beldassano v. Larsen, 580 F. Supp. 415 (D. Minn. 1984); Stoddard v. Ling-Temco-Vought, Inc., 513 F. Supp. 335, 336 (C.D. Cal. 1981); United States Lines Co. v. Int'l Longshoreman's Assoc., 265 F. Supp 666, 669 n.3 (D. Mass. 1967).41. See, e.g., Elliott, Managerial Judging and the Evolution of Procedure, 53 U. CHI. L. REV. 306 (1986) (discussing innovations in courtroom procedure and new styles of judging).42. See, e.g., Lieberman & Henry, Lessons from the Alternative Dispute Resolution Movement, 53 U. CHI. L. REV. 424, 424-25 (1986) (mentioning various types of mediation, arbitration, and conciliation).43. See DISPUTE RESOLUTION 5 (S. Goldberg, E. Green & F. Sander eds. 1985).44. Judge Lambros describes the summary jury as "consistent with" the advisory jury specifically authorized in rule 39(c) and suggests several other indirect sources of authority for the summary trial. See Lambros, The Summary Jury Trial and Other Alternative Methods of Dispute Resolution, 103 F.R.D. 461, 470 (1984); see also Bixler v. J. C. Penney, 376 N.W.2d 209, 214 (Minn. 1985) (en banc) (using the term "advisory jury" to describe a summary jury trial). The use of the advisory jury as authority for the summary trial is particularly apt because the power to call an advisory jury under rule 39(c) has been interpreted broadly. Cf. Computer Sys. Eng'g, Inc. v. Qantel Corp., 571 F. Supp. 1365, 1373 (D. Mass. 1983) (rejecting a "literal construction" of rule 39(c)'s limitation of advisory juries to cases "not triable of right by a jury" and adopting the majority rule that an advisory jury is appropriate when a party has unintentionally waived her jury right).Use of rule 39(c) as the authority for the summary trial might enable the judge to give some effect to the advisory verdict. Even in a summary proceeding, the judge might take the verdict as indicating that the winning party would be likely at least to show a genuine dispute over the facts in the full trial. In such a case, it would be inappropriate to enter a summary judgment or a directed verdict against the party who wins a summary verdict. See FED. R. CIV. P. 56(c).45. See Lambros, The Summary Jury Trial -- An Alternative Method of Resolving Disputes, 69 JUDICATURE 286 (1986); Lambros, supra note 44.46. Posner, The Summary Jury Trial and Other Methods of Alternative Dispute Resolution: Some Cautionary Observations, 53 U. CHI. L. REV. 366, 377, 385 (1986). For examples of the summary trial in practice, see Muehler v. Land O'Lakes, Inc., 617 F. Supp. 1370, 1372-73 (D. Minn. 1985); Negin v. City of Mentor, 601 F. Supp. 1502, 1505 (N.D. Ohio 1985); Rocco Wine Distribs., Inc. v. Pleasant Valley Wine Co., 596 F. Supp. 617, 620-21 (N.D. Ohio 1984).47. See H. ZEISEL, H. KALVEN & B. BUCHHOLZ, DELAY IN THE COURT 75-78 (1959).48. Culley, In Defense of Civil Juries, 35 ME. L. REV. 17, 26 (1983).49. See supra pp. 1364-65.50. See, e.g., Sand & Reiss, A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 N.Y.U. L. REV. 423 (1985).51. For example, Professors Zeisel and Callahan found that the use of "split-trials," with separate phases for assessment of liability and damages, could reduce the length of jury trials by almost one-fifth. See Zeisel & Callahan, Split Trials and Time Saving: A Statistical Analysis, 76 HARV. L. REV. 1606, 1620 (1963).52. Judge Posner argues that the parties themselves do not bear the true cost of litigation because filing fees are artificially low. See R. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 10-11, 131-36 (1985). He suggests that speedier trials would only encourage still more people to take disputes to court. See id.; DISPUTE RESOLUTION, supra note 43, at 6. If Judge Posner is right, the backlog of cases may remain basically constant over at least some range of possible trial lengths.53. See Diodato v. Turecamo Coastal & Harbor Towing, Inc., 100 F.R.D. 756, 758 (S.D.N.Y. 1984).54. 28 U.S.C. @ 1346 (1982).55. "Any action against the United States under . . . [this title] shall be tried by the court without a jury." 28 U.S.C. @ 2402 (1982).56. See Maltais v. United States, 439 F. Supp. 540, 550 (N.D.N.Y. 1977); Moyer v. United States, 306 F. Supp 390, 391 (S.D. Fla. 1969); Poston v. United States, 262 F. Supp. 22, 22-24 (D. Haw. 1966); Schetter v. Housing Authority, 132 F. Supp. 149, 154 (W.D. Pa. 1955); 2 L. JAYSON, HANDLING FEDERAL TORT CLAIMS @ 305.02 (1986); Note, Joinder of the Government under the Federal Tort Claims Act, 59 YALE L.J. 1515, 1520-21 (1950).57. See, e.g., Hollenbeck v. Falstaff Brewing Corp., 605 F. Supp. 421, 430-32 (E.D. Mo. 1984) (using a jury by right to hear potential state claims and to render an advisory verdict on federal issues); Mason v. Midwestern Fidelity Corp., 589 F. Supp. 751, 757 (S.D. Ohio 1984) (same); Craft v. Metromedia, Inc. 572 F. Supp. 868, 870 (W.D. Mo. 1983) (same), modified, 766 F.2d 1205 (8th Cir. 1985).58. See infra pp. 1371-72.59. This emphasis on efficiency has been strongly criticized. See Fiss, Against Settlement, 93 YALE L.J. 1073 (1984).60. See Oldham, The Origins of the Special Jury, 50 U. CHI. L. REV. 137, 210 (1983).61. A similar view of law inheres today in commercial transactions. Danzig characterizes the enterprise of the Uniform Commercial Code as attempting to restate "primary rules derive[d] from a sense of fairness widespread -- if imprecisely defined -- within the commercial community;" the legal system attempts "merely [to] articulate and place the state's imprimatur on private arrangements fabricated outside its halls." Danzig, A Comment on the Jurisprudence of the Uniform Commercial Code, 27 STAN. L. REV. 621, 622-23 (1975); see Barton, Behind the Legal Explosion, 27 STAN. L. REV. 567, 578 (1975).62. See J. AUERBACH, JUSTICE WITHOUT LAW? (1983).63. Id. at 3.64. See, e.g., North v. Russel, 427 U.S. 328, 333 n.4, 339 (1976) (upholding Kentucky's rural lay judge system even in some criminal proceedings in which incarceration is a possible penalty and listing 28 states that use lay judges for some adjudication).65. See J. DAWSON, A HISTORY OF LAY JUDGES 292-93 (1960).66. See Freeman, The Jury on Trial, 34 CURRENT LEGAL PROBS. 65, 90 (1981) (stating that juries "are the conscience of the community: they represent current ethical conventions"); Gillers, Deciding Who Dies, 129 U. PA. L. REV. 1, 63-64 (1980) ("The response of a representative jury of acceptable size is . . . taken to be the community response. The jury does not try to determine what the community would say, but in giving its conclusion, speaks for the community.").67. Culley, supra note 48, at 28-29.68. See Taylor v. Louisiana, 419 U.S. 522, 538 (1974).69. See, e.g., Gillers, supra note 66, at 63 n.300 (noting that state trial judges draw an average salary of approximately $41,000, consist of 2.5% women and 3.8% blacks, and necessarily have extensive formal education due to bar requirements).70. See Norton, What a Jury Is, 16 VA. L. REV. 261, 264 (1930) ("The very education of the judge warps him . . . ."); c.f. P. DEVLIN, TRIAL BY JURY 159 (1966) (arguing that legal professionals "construct a mystique that cuts them off from the common man"). By contrast, "jurors bring a fresh viewpoint to the analysis of human affairs, free from the biases of the professional lawyer and judge." Lambros, The Summary Jury Trial -- An Alternative Method of Resolving Disputes, supra note 45, at 286.71. J. ELY, DEMOCRACY AND DISTRUST 58-59 (1980).72. Numerous states have used civil regulations to supplement or replace criminal sanctions for obscenity. See Rendleman, Civilizing Pornography: The Case for an Exclusive Obscenity Nuisance Statute, 44 U. CHI. L. REV. 509, 509-10, 521 n.66 (1977) (listing 24 states with reported civil obscenity cases since 1970); Note, Pornography, Padlocks, and Prior Restraints: The Constitutional Limits of the Nuisance Power, 58 N.Y.U. L. REV. 1478, 1478 n.4 (1983) (noting that at least half the states provide for some form of civil injunction against obscenity).73. In Miller v. California, 413 U.S. 15 (1973), the Court held that a necessary element for a finding of obscenity is that "'the average person, applying contemporary community standards,'" would characterize the material as appealing to the "prurient interest." Id. at 24 (quoting Roth v. United States, 354 U.S. 476, 489 (1957)); see Rendleman, supra note 72, at 544 ("Under substantive obscenity law, the community sets the standard, and a jury represents a cross section of the community.").74. In seeking greater jury involvement in this area, judges avoid what the Ohio Court of Appeals identified as "the entirely impermissible situation where a court, sitting as here, in equity . . . would become the sole arbiter . . . of what is, or is not, . . . obscene." State ex rel. Leis v. William S. Barton Co., 45 Ohio App. 2d 249, 263, 344 N.E.2d 342, 351 (1975). Based on similar concerns, the Missouri Supreme Court held that trial courts must empanel an advisory jury when hearing obscenity cases under that state's nuisance statute and must accept the jury's verdict as a prerequisite to a finding of obscenity. See McNary v. Carlton, 527 S.W.2d 343, 348 (Mo. 1975) (en banc). Along these lines, the Minnesota Supreme Court has mandated jury trial in obscenity actions on the ground that "a jury can best reflect contemporary community standards." City of Duluth v. Sarette, 283 N.W.2d 533, 538 (Minn. 1979) (en banc).75. Broad community participation in the legal process helps maintain the accountability of government officials to the public. For example, one court has used an advisory jury and its "expression of community consensus" in trial to help assess liability and damages against the Central Intelligence Agency for unlawful surveillance activities within the United States. See Birnbaum v. United States, 436 F. Supp. 967, 970 (E.D.N.Y. 1977), remedy modified, 588 F.2d 319 (2d Cir. 1978). Judge Weinstein, who decided the case, also declared his intention to use an advisory jury in hearing the claims of Vietnam veterans and their families for wrongful wartime exposure to the herbicide Agent Orange. See In re "Agent Orange" Product Liability Litigation, 580 F. Supp. 1242, 1256 (E.D.N.Y. 1984).76. See Spaziano v. Florida, 468 U.S. 447, 465 (1984).77. See Proffitt v. Florida, 428 U.S. 242, 246 (1976) (joint opinion of Stewart, Powell, & Stevens, JJ.) (affirming a murderer's death sentence, and a statutory scheme, which were based in part on the state court's finding that the crime was "especially heinous, atrocious, and cruel"); Gregg v. Georgia, 428 U.S. 153, 161 (1976) (joint opinion of Stewart, Powell, & Stevens, JJ.) (upholding a statute directing the jury to examine the "outrageously and wantonly vile, horrible and inhuman" character of the crime).78. Statements suggesting this view are common in dicta. For example, the Supreme Court has stated that "the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." Gregg, 428 U.S. at 184 (joint opinion of Stewart, Powell, & Stevens, JJ.) (footnote omitted), quoted in Spaziano, 468 U.S. at 461. Similarly, "a jury . . . can do little more -- and must do nothing less -- than express the conscience of the community on the ultimate question of life or death." Witherspoon v. Illinois, 391 U.S. 510, 519 (1968) (footnote omitted).79. See Spaziano, 468 U.S. at 463 n.9.80. See FLA. STAT. ANN. @ 921.141(2) (1985). The civil advisory jury under FED. R. CIV. P. 39(c) and its state counterparts does not apply here.81. Freund, Review and Federalism, in SUPREME COURT AND SUPREME LAW 86, 96 (E. Cahn ed. 1954) (emphasis added).82. See, e.g., Southeastern Promotions, Inc. v. Conrad, 341 F. Supp. 465 (E.D. Tenn. 1972) (holding the rock musical "Hair" to be obscene, after a trial with an advisory jury), aff'd 486 F.2d 894 (6th Cir. 1973), rev'd on other grounds, 420 U.S. 546 (1975).83. To many commentators, the selective application of the death penalty against minorities is the strongest argument against its continued use. See Greenberg, Against the American System of Capital Punishment, 99 HARV. L. REV. 1670 (1986); Gross & Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 STAN. L. REV. 27 (1984); Nathanson, Does It Matter if the Death Penalty is Arbitrarily Administered? 14 PHIL. & PUB. AFF. 149 (1985).84. 42 U.S.C. @@ 2000e-2000e-17 (1982).85. Although racial discrimination is now recognized as a major problem throughout the country, the issue has had a strong regional character, which dates from before the Civil War. See P. SCHUCK, SUING THE GOVERNMENT 47-51 (1983). This southern focus continued well into the 1960s, when Congress enacted title VII. For example, the restrictions on local power in the Voting Rights Act of 1965, 42 U.S.C. @ 1973 (1982), applied only in certain "designated areas," which included almost every Southern county but only a handful of other jurisdictions. See UNITED STATES COMMISSION ON CIVIL RIGHTS, THE VOTING RIGHTS ACT: SUMMARY AND TEXT 8 (1971); Halpin & Engstrom, Racial Gerrymandering and Southern State Legislative Redistricting: Attorney General Determinations under the Voting Rights Act, 22 J. PUB. L. (now EMORY L.J.) 37, 40, 47-48 (1973).86. "The right to jury trial is mentioned in a number of places in the legislative history, but none of these references give a definite answer as to the intent of Congress." Culpepper v. Reynolds Metals Co., 296 F. Supp. 1232, 1239 n.5 (N.D. Ga. 1969) (holding that there is no right to a jury trial in title VII actions).87. See, e.g., Miller v. Walker Div. of Butler Mfg. Co., 577 F. Supp. 948, 951 n.4 (S.D.W. Va. 1984).88. For example, South Carolina requested an advisory jury in a case challenging the maintenance of all-white parks and beaches. See Brown v. South Carolina State Forestry Comm'n, 226 F. Supp. 646, 647 (E.D.S.C. 1963).89. 28 U.S.C. @ 1346 (1982).90. See id @ 2402; Coffland v. United States, 57 F.R.D. 209, 210 (N.D.W. Va. 1972); cases cited supra note 56.91. Cf. Parker, Free Expression and the Function of the Jury, 65 B.U.L. REV. 483, 538 (1985) ("Asserting expansive judicial authority to deny protection in cases where the jury has favored the exercise of first amendment rights demands an entirely different rationale from that used when extending protection in cases where the jury has restricted free expression.").92. The advisory jury's traditional role as an aid to the "conscience" of the court makes such a role particularly appropriate. See supra p. 1364.93. This recommendation is not far from actual practice. For example, of the 30 times from 1973 to 1981 that the Florida Supreme Court reduced a death sentence to life imprisonment, 25 were cases in which the trial judge had rejected the advisory jury's recommendation of life. See Radelet & Vandiver, The Florida Supreme Court and Death Penalty Appeals, 74 J. CRIM. L. & CRIMINOLOGY 913, 923 (1983).94. See, e.g., Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Kelman, Trashing, 36 STAN. L. REV. 293 (1984); Kennedy, The Structure of Blackstone's Commentaries, 28 BUFFALO L. REV. 205 (1979); Llewellyn, Some Realism about Realism: Responding to Dean Pound, 44 HARV. L. REV. 1222 (1931); Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).95. See supra p. 1372.96. See, e.g., Dalton, supra note 94, at 1000-03, 1106-12 (stating that her purpose is "to bring to life the underlying issues of knowledge and power that lie buried in [contract] doctrine"); Horwitz, The Historical Foundations of Modern Contract Law, 87 HARV. L. REV. 917, 955-56 (1974) (concluding that "the rule of law" manifested in the formal contract doctrines of the nineteenth century was tacitly structured by class bias).97. See, e.g., Llewellyn, supra note 94, at 1252-54.98. See Railton, Judicial Review, Elites, and Liberal Democracy, in 25 NOMOS: LIBERAL DEMOCRACY 153, 160-65 (1983); see also H. COMMAGER, MAJORITY RULE AND MINORITY RIGHTS 28-56, 56 (1943) ("Almost every instance of judicial nullification of congressional acts appears, now, to have been a mistaken one."); R. DAHL, A PREFACE TO DEMOCRATIC THEORY 59 (1956) (stating that "there is not a single case in the history of this nation where the Supreme Court has struck down national legislation designed to curtail, rather than to expand, the key prerequisites to popular equality and popular sovereignty"); Frank, Review and Basic Liberties, in SUPREME COURT AND SUPREME LAW 109, 124 (E. Cahn ed., 1954) ("[T]he actual overt exercise of judicial review of acts of Congress has . . . probably harmed [civil liberties] more than it has helped them."); Levy, Judicial Review, History, and Democracy, in JUDICIAL REVIEW AND THE SUPREME COURT 36 (L. Levy, ed.) (1967) (arguing that "[o]ver the course of our history . . . judicial review has worked out badly").99. See Hay, Property, Authority, and the Criminal Law, in ALBION'S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH CENTURY ENGLAND 17 (1975); see also Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 HARV. L. REV. 1357, 1357-58, 1391-92 (1985) (presenting a mainstream argument that a primary role of the courts is to "dramatize" and "project" legal norms, at times at the expense of truth).100. See, e.g., Stick, Can Nihilism be Pragmatic?, 100 HARV. L. REV. 332, 392 (1986) (arguing that the strain of CLS that seeks to identify fundamental incoherence in legal doctrine constitutes an attack on "reasoning, conversation, and language itself . . . making any positive position impossible").101. See Frug, The Ideology of Bureaucracy in American Law, 97 HARV. L. REV. 1276, 1382, 1386 (1984).102. See Nedelsky, Confining Democratic Politics: Anti-Federalists, Federalists, and the Constitution, 96 HARV. L. REV. 340, 343-46 (1982); Wolfram, supra note 4, at 671-73.103. According to one commentator:Most of us have grown up in a tradition that regards the jury as a tool of a legal system external to it. Legal scholars continually reinforce this notion. The legal profession -- consisting of both lawyers and judges -- has so cartelized justice, its administration, and its execution, that we cannot even dimly recall the day when law belonged in a much less restrictive sense to all of us. For many of us, the jury, far from being a local agency of self-government, is simply a passive instrumentality. We may well ponder how this came to be in a society which we characterize as democratic . . . .Arnold, Societal Versus Official Law (Book Review), 38 STAN. L. REV. 265, 270 (1985).104. See supra pp. 1366-67.105. See Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 CALIF. L. REV. 1867 (1966).106. See Dalton, supra note 94, at 1024-27.107. See Frug, supra note 101, at 1322-23.108. Commentators have argued that the multiplication of parties and issues in some cases makes them too complex for meaningful jury trial. See, e.g., Note, Complex Civil Litigation and the Seventh Amendment Right to a Jury Trial, 51 U. CHI. L. REV. 581 (1984). But see Kirst, The Jury's Historic Domain in Complex Cases, 58 WASH. L. REV. 581 (1984). The judge's ability to use the advisory jury with respect to individual issues and the flexibility of advisory jury procedure, see supra p. 1369, should eliminate most of the problems of complexity that might occur in trials with a jury by right.109. Horwitz, supra note 96, at 925.110. Note, Toward Principles of Jury Equity, 83 YALE L.J. 1023, 1025 (1974) (emphasis added); see also L. MOORE, THE JURY 80-82, 106-13 (1973) (tracing the jury's right to decide both the law and the facts of the case from the Glorious Revolution of 1688 through the ratification of the United States Constitution).111. Parker, supra note 91, at 496.112. See supra p. 1364113. In a series of recent cases, the Court has expanded judges' power to remove cases from jury consideration through summary judgment. See Celotex Corp. v. Catrett, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505 (1986); Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 106 S. Ct. 1348 (1986).114. See P. DEVLIN, supra note 70, at 45; see also McCoid, supra note 4, at 1-2 (commenting on the shifting character of jury practice at the time of ratification and on the difficulty of applying the historical test to modern problems that did not exist at the time); supra p. 1366.115. "We are told repeatedly that juries find facts and judges declare the law in jury cases . . . . The law-fact dichotomy is superficial, blurred, misleading, and an inaccurate summary of what actually takes place." Richardson, Jury or Bench Trial?, TRIAL, Sept. 1983, at 58, 61. Weiner echoes this theme, stating that "the typical appellate opinion today does no more than label the question as one of law or of fact." Weiner, supra note 105, at 1868 (1966). The variability of the categories of "law" and "fact" led one judge to begin an opinion with the disclaimer: "To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any conclusions of law constitute findings of fact, they are so adopted." Graham v. Milky Way Barges, Inc., 590 F. Supp. 721, 722 (E.D. La. 1984). A judge submitting borderline questions to a jury might modify this statement, "to the extent that any of the jury's answers are to questions of law, they are adopted as advisory only."116. See Kennedy, Legal Education as Training for Hierarchy, in THE POLITICS OF LAW 40 (D. Kairys ed. 1982).117. Freeman, supra note 66, at 90. |
