Gifford and Jones on Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law
My colleague Donald Gifford (whose book we featured here) and his co-author sociologist Brian Jones have an important new piece up on SSRN entitled “Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law.” The piece is provocative and original: it may the first paper to use cross-state comparisons in an empirical study of the impact of race, income inequality, regional variations, and political ideologies on tort law.
Here is the abstract:
This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.
To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis that finds strong correlations between a state’s JADI and two factors: (1) the percentage of African Americans in its largest cities, and (2) its history as a former slave-holding state.
These findings suggest that some appellate courts, particularly those in the South, afraid that juries with substantial African-American representation would redistribute wealth or retaliate for grievances, struck preemptively to prevent cases from reaching them. Surprisingly, we do not find a consistent association between a state’s JADI and either income inequality or its political leanings. In other words, race and region, rather than economic class or politics, explain the failure to embrace pro-plaintiff changes that occurred elsewhere.
We suggest, therefore, that states that declined to discard antiquated anti-jury substantive doctrines between the mid-1960s and the mid-1980s should acknowledge that these precedents were tainted by their predecessors’ efforts to keep tort cases from African-American jurors and refuse to accord them deference.