Here is a late September post presenting a condensed version of a law review article proposing “national juries” for mass tort litigation. The proposal is from Professor Laura Gaston Dooley, a professor at the Valparaiso University Law School. Looking quickly through her CV at the school website, it appears Prof. Dooley clerked for two years for federal judges and then joined academia. Her work also includes being a part of the “Members Consultative Group, Project on Aggregate Litigation. American Law Institute,” which is a group identified here.
Set out below are some excerpts from the condensed version. The proposal makes some interesting points. I’ve not read the full law review article. The condensed version does not hone in on two topics that seem key to me: state-by state variations in the applicable legal rules, and the manner in which a jury would cope with the applicable and evolving science in a mass tort “toxic tort” case.
See below for the excerpts that most caught my eye. ___________________________________________________________________
“The reexamination problem reflects tension between competing values in complex litigation: Consolidated cases may lead to unconstitutional reexamination of overlapping issues, yet trying individual cases presents problems of efficiency loss and forum manipulation. We must therefore choose between the evil of bifurcation and the evil of inefficient relitigation of the same issue, with the concomitant risk of inconsistent results. A third option–treating a single litigation as a national unit–vests too much power in one local jury to unleash national consequences.
Is there a fourth option? Empanelling a national jury would mitigate reexamination problems while preserving the efficiency gains of aggregation. A national jury would also address the concern that a local citizenry should not decide issues of national importance. And, most importantly, it would vindicate the animating concern of the Seventh Amendment: citizen participation in civil dispute resolution.
Our willingness to work out the logistical details of the national jury proposal and to absorb its inevitable costs is a function of our commitment to citizen participation in large-scale litigation. One difficulty, of course, will be assembling a national jury pool representative of a country as large and diverse as the United States. Even in much smaller jury districts, underrepresentation of minorities on jury venires has sparked an enormous amount of scholarly literature and litigation.8 Congress would have to consider how to assemble a nationally representative venire. A starting point might be to draw candidates for the national jury pool from congressional districts, since those boundaries have already withstood constitutional and statutory scrutiny under election laws.9 The census process could also be used to draw districts.
The expansion of jury pools from local to national may also require us to rethink the size of the venire and the petit jury, as well as verdict format and voting mechanisms. Obtaining some semblance of the required representativeness will no doubt require larger juries than the current six or twelve members. Indeed, in order for a national jury to function, the discussion may well have to shift to how large a group can effectively deliberate without becoming unwieldy.
The grand jury model may prove useful. One can imagine a national jury as a cross between the grand jury and the special jury: Jurors could serve for specified lengths of time, perhaps in particular courts hosting multi-district complex litigation. The learning curve for such jurors would be high. Having decided, say, causation issues in one products liability case, the national jury would have an informational advantage in understanding procedure and applicable substantive law for other cases. And this gain can be realized without sacrificing the democratic makeup of the jury–a quality lost in elitist special juries.
The civil jury, though steeped in history, is not frozen in time. In an era of increasingly complex litigation, the civil jury must adapt structurally to modern disputes while preserving its rich history and constitutional function. Empanelling national juries in cases of national scope may well be the only way to preserve meaningful citizen participation in large-scale litigation.”