In large-scale, high-stakes litigation, jury verdicts are likely both to garner national attention and to shape outcomes for other cases, filed and unfiled.  It is no secret that repeat players in these cases, best positioned to control their exposure to perceived jury bias, maneuver cases toward favorable jury pools.  This tactic in turn subjects the jury to criticism that local decisionmakers impose their will on the rest of the country.  The problem stems from a disconnect between the scope of these controversies and the scope of the pool from which jurors are drawn to decide them.  If the community affected by the litigation is national, then a local decisionmaker may not fairly represent the relevant constituency.  This disconnect compromises the constitutional assurance that the decisionmaker be drawn from a fair cross-section of the community, a community whose borders ought to be drawn with an eye toward the dispute.

The forum-seeking choices made by both plaintiffs and defendants (especially in mass tort cases) are driven by expectations about the identity of the decisionmaker, particularly for the first case to come to trial.  Plaintiffs usually file in state court—and fight to stay there—in order to secure the decisionmaker of their choice: the local jury.  Defendants typically want to avoid state court juries and routinely remove cases to federal court whenever possible.  They seek the federal forum in the hope that a judge will dispose of the case on a pretrial motion; failing dismissal, defendants hope to control the jury pool either by enlarging it to encompass a federal district or by transferring the case to a location where more favorable jurors are likely to be summoned.  Congress is well aware of the mass tort gamesmanship:  It recently passed legislation in an effort to control the phenomenon.¹

When parties litigate a case of national scope, I argue that the proper jury pool is neither local (as in state court, where jury pools are typically defined along county lines) nor regional (as might be true in a federal district):  A national case demands a national jury drawn from a national pool.  Because cases of national scope are now more likely than ever to be concentrated in federal court, the problem of summoning jurors outside the court’s sovereignty is obviated.  But many problems, political as well as logistical, remain.  In the end, we must assess whether the gains to populism and legitimacy are worth any efficiency loss.

This proposal connects the waning legitimacy of the civil jury in large-scale litigation to the disparity between the scope of the local jury pool and the scope of the cases.  I argue that the use of national juries for cases of national scope will improve both the actual and perceived quality of lay decisionmaking and will restore legitimacy to jury verdicts.  Moreover, the democratic values animating the constitutional right to jury trial can best be realized in large-scale litigation by empanelling a national jury.

The first step in evaluating the concept of a national jury is to identify the types of cases that would qualify for national jury treatment.  One issue that need not detain us long is the problem of state versus federal jurisdiction.  Although empanelling a national jury in a state court case might raise sovereignty problems, recent statutory innovations have already moved the vast majority of national cases into federal court.  The Class Action Fairness Act (CAFA) and the Multiparty, Multiforum Jurisdiction Act (MMTJA) replace the traditional federal jurisdictional requirement of complete diversity with one of minimal diversity, making it far easier for plaintiffs to file in federal court or, more commonly, for defendants to remove cases from state courts.² Implicit in both pieces of legislation is the notion that local juries should not be allowed to control the fate of a national business based on the fortuity that a local claimant has brought suit—or, worse, that a plaintiff has forum-shopped to get access to a particular local jury pool.  Indeed, these legislative initiatives are widely recognized as responsive to the defense bar’s common complaint that corporate defendants could not get a fair shake in state court.

Because most litigation of national scope will meet the minimal diversity requirements of CAFA and MMTJA, getting into federal courts will be straightforward.  The next step is to determine which of these cases best lend themselves to national jury treatment.  The federal courts’ experience with complex litigation over the last several decades suggests at least two types of cases that should qualify: nationally aggregated claims and individual cases that serve a “bellwether” function for related litigation.  Indeed, aggregation appears to be a clear trend.  In addition to the long-standing practice in federal court of concentrating all cases pending on a certain topic (Vioxx, say, or Firestone tires) in one particular federal district under multi-district litigation procedures for pretrial handling, Congress has facilitated the aggregation of many more cases that previously would have stayed in state court by federalizing them via CAFA and MMTJA.  Many of these aggregated cases encompass thousands, sometimes even millions, of individual claims.  Cases that serve as bellwethers can occur both within these aggregated juggernauts and outside them:  These are cases that are tried to test the value of claims to inform the settlement negotiations for other similar claims.  Thus, the decisionmakers in these aggregated and bellwether cases are making decisions that can impact potentially millions of people.  Yet we adhere to a system of jury composition that draws jurors from whatever locality in which the trial happens to take place, a vagary that may be driven by party forum-shopping or judges’ expertise, but does not reflect the scope of the task at hand.

The civil jury’s legitimacy is inextricably tied to its relationship with the community from which it is drawn.  The verdicts of local juries in local cases seem legitimate when the jury’s decisionmaking reflects local values.  If the legitimacy crisis in complex cases reflects the disconnect between the national scope of large-scale litigation and the local community from which the jurors hail, the question becomes whether the verdicts of a national jury would carry more legitimacy.  I think so for three interrelated reasons.  First, national juries would not be subject to the criticism that local values should not set national policies.  Judge Posner once famously argued that “a single trial before a single jury” produced by class certification of a national “issues” class would allow that one jury to “hold the fate of an industry in the palm of its hand.”³ He asserted that a better alternative would be to submit the issue to “multiple juries constituting in the aggregate a much larger and more diverse sample of decision-makers.”⁴ A national jury might address Judge Posner’s concerns:  The jury would be larger in number,⁵ commensurate in scope to the dispute, and representative of the community that will feel the effect of the decision.

The second reason that national juries may produce more legitimate verdicts is that parties will lose some of the incentive to forum-shop.  Filing a claim in a particular district will no longer carry the advantage of capturing a particular local jury pool.  After all, the perception of rampant forum manipulation motivated Congress to adopt legislation to shift most class actions and large-scale single-event tort cases to federal courts.  A national jury system would align the decisionmaker with Congress’s nationalization impulse.

Third, national jury verdicts will have greater legitimacy because the quality of decisionmaking is likely to improve when jurors are drawn from a national pool.  Venire members drawn from local pools are more likely to share local biases, and these biases are mutually reinforcing during deliberations.  Indeed, this bias factor is precisely why litigants forum-shop.  The national venire will negate that problem and could maximize diversity in terms of both demographics and interests.  Thus we could gain the superior collective decisionmaking of a group with “diffused impartiality.”⁶

The Seventh Amendment, which preserves the right to jury trial in federal civil cases, has forced us to tolerate some efficiency loss and forum manipulation because its Reexamination Clause is an important check on procedural innovations to streamline complex litigation.  Techniques that pluck out particular issues for aggregate resolution (like issue classes under Rule 23(c)(4)) or for separate treatment (like bi-, tri-, or polyfurcation) risk forbidden “reexamination” if future decisionmakers reconsider decided issues while evaluating remaining issues that overlap.⁷

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.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Laura G. Dooley is Professor of Law & Michael and Dianne Swygert Research Fellow at Valparaiso University School of Law.

This Legal Workshop Editorial is based on the following Article:   Laura G. Dooley, National Juries for National Cases: Preserving Citizen Participation in Large-Scale Litigation, 83 N.Y.U. L. REV. 410 (2008).