October 2021 | NEWSLETTER
Letter from CJRI Chair Erwin Chemerinsky and Executive Director Anne Bloom
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Dear Friends of the Civil Justice Research Initiative,
With the new school year underway, we are thrilled to report that we have returned to in-person operations (!) and expect to resume in-person CJRI events by the spring. In the meantime, we continue to offer webinars on important civil justice topics and to conduct and publish new research. We are also delighted to report that we have added a new faculty member to the CJRI leadership team. Professor Andrew Bradt is now serving as Faculty Director for the CJRI, supporting and advising Executive Director Anne Bloom and Dean Erwin Chemerinsky on all CJRI activities.
Earlier this semester, we presented webinars on three civil justice issues receiving a lot of attention in the press: “The Implications of Nestle v. Doe,” “Qualified Immunity and Civil Rights Claims,” and “Selection of Leadership in MDLs.” “Human Rights Litigation after Doe v. Nestle” considered litigation strategies for human rights cases in the U.S. after a recent Supreme Court ruling may have made it more difficult for individuals alleging human rights abuses to bring claims. “Qualified Immunity” featured a lecture from Dean Erwin Chemerinsky on the judicially-created doctrine of qualified immunity followed by comments from three speakers offering scholarly, practitioner and judicial perspectives on how and when reform might happen. Berkeley Law reported on the program here. The “Selection of Leadership in MDLs” webinar also tackled a topic of great interest to the practicing bar, bringing together leading scholars, judges and practitioners to discuss issues related to the selection of Plaintiffs Steering Committees in Multidistrict Litigation. Law.com reported on the program here.
We are also excited to report the publication of a new CJRI report,
Thank you very much for your continued support for the CJRI and commitment to access to civil justice! Please continue to take good care and we hope to see as many of you as possible in person soon.
Erwin and Anne
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CJRI Releases New Report on Civil Juries
by Sanjana Manjeshwar
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The Civil Justice Research Initiative recently published The Civil Jury: Reviving an American Institution, authored by CJRI Research Fellow Richard L. Jolly, Valerie P. Hans and Robert S. Peck. The report explores the reasons for the decline of the civil jury over the past several decades. The authors offer research-based recommendations that could revive the institution of the civil jury by removing barriers to civil jury trials and improving the fairness and accuracy of jury fact-finding.
Civil juries, the authors explain, have undergone a significant transformation since the founding of the United States. Through participation in civil juries, American colonists refused to uphold British laws, and after independence, the right to a civil jury was codified in the Seventh Amendment of the Constitution. The Founders viewed the civil jury as an important tool for maintaining democratic legitimacy and curbing abuses of power. However, the role of the civil jury has declined considerably since then, particularly after the mid-20th century, and in 2020, only 0.48% of civil cases were resolved by jury trials.
The report describes how the decline of the civil jury is partly because of the implementation of jury-restrictive rules and procedures. For instance, the adoption of the Federal Rules of Civil Procedure provided judges with a more authoritative and managerial role, giving them greater discretion when dismissing cases. Future rule changes, as well as legislation such as the Civil Justice Reform Act of 1996, often encouraged judges to avoid trials and settle cases as quickly as possible to reduce court delays and expenses. The authors also highlight the rise of mandatory arbitration clauses—binding agreements that prevent employees and consumers from suing businesses—as an explanation for the decrease in jury trials.
In addition, the report examines the rule that the “corporate public-relations machine” played in the decline of the civil jury. According to the authors, pro-business interest groups and the media misrepresented and sensationalized stories about civil jury trials, such as the infamous McDonald’s “hot coffee” case. As a result, “tort reform” efforts by corporations and politicians often succeeded in restricting the role of the civil jury through policies such as limits on punitive damages.
The authors also discuss the many benefits of the civil jury. Judges frequently come from elite or privileged backgrounds, while a group of jurors is more likely to be representative of a community’s diverse backgrounds and experiences. Accordingly, jurors can draw on their collective experiences to ensure a deliberative and community-based approach to fact-finding and decision making. Moreover, the authors note that jury participation promotes civic engagement and educates Americans about the law. Citizens who serve on juries are often significantly more likely to vote in elections following their service. Jury trials also promote transparency and provide litigants with the opportunity to be heard by their fellow citizens, increasing the perceived legitimacy of the judicial system.
To reverse the troubling decline of the civil jury, the authors propose several research-based improvements to the jury system. They highlight the importance of removing barriers to civil jury trials so that any litigant who wants a jury trial can receive one. To do this, courts could once again adopt a jury-trial default rule, which would mean that litigants automatically receive a jury trial unless they waive their right to one. Also, the authors recommend removing damage caps, which obstruct access to jury trials by deterring potential litigants from seeking compensation, and suggest expanding expedited jury trial projects with twelve-person juries.
The authors additionally discuss the need to improve the fairness and accuracy of jury fact-finding, which can be achieved by making sure that juries reflect the diverse communities that they are supposed to represent. The authors recommend returning to twelve-person juries, citing research which finds that larger juries are more representative and are better at fact-finding. Finally, the authors propose adopting active jury reforms—such as encouraging jurors to take notes, ask questions, and discuss the case with each other—to promote active participation and strengthen jury decision-making.
In sum, the report examines the reasons behind the decline of the civil jury, discusses the many benefits of civil juries, and offers research-based recommendations for reviving the civil jury. The authors emphasize that especially during crises like the COVID-19 pandemic, which has created a backlog of civil cases and encouraged courts to treat jury trials as expendable, protecting the institution of the civil jury is more important than ever. You can find a copy of the report here.
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OCTOBER 15, 2021
NEW ISSUES IN LITIGATION FUNDING | VIA ZOOM | 10:00-10:30 AM PT
This half-hour webinar will feature Professor Maya Steinitz, University of Iowa College of Law, one of the nation’s leading experts on litigation finance, and Allison K. Chock, Chief Investment Officer – United States, for Omni Bridgeway, a global leader in dispute finance. Topics will include how litigation funding actually works, differences between U.S. and global practices, and some of the debates and issues surrounding litigation finance disclosures. This event is supported by a generous gift from the Robert L. Habush Endowment, in collaboration with Berkeley Boosts. Register for the program here.
OCTOBER 22, 2021
RURAL ACCESS TO JUSTICE | VIA ZOOM | 10:00-10:30 AM PT
This half-hour webinar will feature Dr. Michele Statz of the University of Minnesota and Judge Gwen Topping of the Red Cliff Tribal Court. The program will include a discussion of Dr. Statz’s recent research on rural access to justice considerations, with a particular emphasis on rural individuals’ own expertise and experiences of the “rural lawscape,” with comments from Judge Topping. This event is supported by a generous gift from the Robert L. Habush Endowment. Register for the program here.
NOVEMBER 19, 2021
THE GENDER OF GIDEON | VIA ZOOM | 10:00-10:30 AM PT
This short program on the gender of Gideon v. Wainright will feature a discussion of recent research by Kathryn A. Sabbeth and Jessica K. Steinberg, indicating that the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainright accrues largely to the benefit of men, primarily because the decision ignores that millions of women face compulsory and highly punitive encounters with the justice system in the civil courts. Qudsiya Naqui, an Officer with the Civil Legal System Modernization Project at Pew Charitable Trusts and host of Down to the Struts (a blog about disability and design) will join Professors Sabbeth and Steinberg to discuss the potential implications of Sabbeth’s and Steinberg’s research for expanding access to civil justice. This event is supported by a generous gift from the Robert L. Habush Endowment, in collaboration with Berkeley Boosts Register for the program here.
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Pictured: Nusrat Jahan Choudhury | ACLU of Illinois |
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BERKELEY BOOSTS WEBINAR: QUALIFIED IMMUNITY AND CIVIL RIGHTS CLAIMS
VIA ZOOM | AUGUST 27, 2021
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Thanks to a generous gift from the Robert L. Habush Endowment, this program featured Dean Erwin Chemerinsky (Berkeley Law) with comments from Professor Karen Blum (Suffolk Law); Nusrat Jahan Choudhury Legal Director of the ACLU of Illinois); and Judge Carlton Reeves (author of the recent opinion in Jamison v. McClendon).
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BERKELEY BOOSTS WEBINAR: SELECTION OF LEADERSHIP IN MDLs
VIA ZOOM | September 17, 2021
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Thanks to a generous gift from the Robert L. Habush Endowment, this program featured The Honorable Karen Caldwell, The Honorable Robert M. Dow, Lynn Baker, Andrew Bradt, Elizabeth Burch, Sergio J. Campos, Nora Freeman Engstrom, Jocelyn Larkin, Andre Mura, Kalpana Srinivasan, and Margaret S. Williams
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Pictured: The Honorable Karen K. Caldwell |
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RICHARD L. JOLLY, VALERIE P. HANS, ROBERT S. PECK
September 2021
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Civil Justice Research Initiative | annebloom@law.berkeley.edu | civiljusticeinitiative.org |
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