A jury is a jury is a jury is a jury… (or not)
Dave’s post in defense of juries reminds me of one of the things that I dislike about our current debates over the jury system. Too often, the issue is presented in terms of a stark choice between judges as fact finders or juries as fact finders. The problem, of course, is that these choices do not exhaust our alternatives. For example, we might have — as they do in some civil law systems — a jury that deliberates in the presence of the judge, who acts as a kind of foreman. This might be a good way of getting at the problem of juries misunderstanding complex legal instructions.
One of the best criticisms of juries, I think, is that they are basically ignorant about some of the complex issues that they are called upon to decide. The problem, of course, is that judges are frequently just as ignorant. Karl Llewellyn once suggested a way of splitting the difference on this point. Borrowing from the lex mercatoria, he suggested that commercial cases be decided by merchant juries. The idea was that you would get expertise as well as community involvement. Ultimately, the Commission on Uniform State Laws shot down the idea, and hence it never made its way into the UCC. Still, it is a useful reminder that there are more juries in heaven and hell than are dreamt of it ATLA’s or ATRA’s philosophies.