Anarchy X: The Seventh Amendment


“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

To be perfectly honest, this falls into the category of “damned if you do, damned if you don’t” for me. On the one hand, I’m always a fan of keeping power as close to the people as possible, and I’ve always been a big believer in Lord Acton’s axiom of power. Give a judge a position for life, or even an elected position where most people won’t know what kind of a job he’s doing because they’ve never had a case in front of him, but hey, he’s a good guy so he keeps getting re-elected, and chances are he’s a prime target for getting bribed, same as any politician. Not necessarily directly, but golf club memberships, free trips, no interest loans for vacation homes, we all know the drill. Blackmail is always a favorite too. So jury trials seem like the way to go, especially in big money cases.

But it isn’t always that simple. Setting aside the well documented issues of race, gender, and age discrimination in jury selection (since most if not all of these studies have focused on criminal rather than civil law), there are still plenty of other issues to consider. First, there’s the question of fairness. Are we really getting justice for either side with a jury trial in some of these cases? Most of them? Any of them? As I understand it in issues of criminal law, the presumption is that if the average person wouldn’t know it was wrong, then there should be some leeway given, which is why you get a jury of your peers. Is that really what we want for cases that involve slander? Or copyright? Or patent law? These are fields that people study for decades to be specialists in, and we are asking a handful of average citizens to somehow pass judgment on which side is right.

This brings me to the second issue. When people don’t have a clear reason to take one side over the other, they will often be swayed by whoever has the better story. While there are certain basic protections against the Population Contest effect (the judge can set aside a ruling that isn’t supported by the evidence, for example), as long as one attorney can give them at least a fig leaf of cover, the jury can be lead to the “right” answer by the more persuasive story. For my money (quite literally) a good example of this is the recent decision in the Apple vs. Samsung lawsuit. In the linked article there are two examples of the vote being swung by experts telling a compelling story: the Apple attorney (and please, someone try to convince me Samsung is more popular than Apple) and the jury foreman himself, who according to ars technica said the jury “wanted to send a message to the industry at large”.

Which brings me to the third issue. In this hyper-publicized day and age, there is more than a little danger that any particular jury verdict is less about that specific case and more about something else. Whether it is sending a message, grabbing a headline, or just getting that fifteen minutes of fame that Andy Warhol promised to us all, there is no certainty in the righteousness of the common man to deliver justice when the blandishments of fame and fortune lie just on the other side of the courthouse doors. That’s no to say they won’t do their honest best or that everyone will vote one way when the answer is clearly the other way, but in the tough moment when there is no clear answer, or when you have to decide between $500,000 and $1.05 billion, that siren call is hard for anyone to ignore.

So what’s the answer? One possibility is already in use, and that’s private arbitration. I don’t mean the kind of abusive arbitration that is written into some contracts these days, “if you ever have a problem with us you have to use our arbitrator that we select, and that we pay, and oh look, he knows which side of hi bread is buttered.” I mean independent arbitrators, people who specialize in civil law and get paid out of an escrow account so they very specifically don’t know which side of their bread is buttered. Another model I heard once (and my apologies to whoever told this to me, since I can’t recall the source) is that you go one step further: you have your arbitrator (or judge), and I have mine, and there’s a third party we both agree on. Two out of three votes wins.

The truth is anytime there’s a dispute between two parties, there will never be a perfect solution that satisfies everyone (just ask any parent with more than one child). The best we can do is find a system that maximizes the good results while minimizing the bad ones.

UPDATE: For a deeper analysis of the rule of law and how private resolution can work as opposed to public systems, check out this article by Prof. John Hasnas (h/t to Kurt Bouwhuis).

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