October 25, 2024
Professor Bobby R. Burchfield moderated the first panel of The George Washington Law Review’s Volume 93 Symposium, “Survival of the Jury,” featuring Professor Philip Hamburger of Columbia Law School, Professor James Oldham of Georgetown University Law Center, and Professor Suja A. Thomas of the University of Illinois College of Law. Professor Burchfield began the panel by describing his confidence in the jury system, having found that civil juries are diverse, attentive, and have a high understanding of the issues. Professor Burchfield noted that although fewer and fewer civil cases are being tried to a jury, the civil jury is one of the most important institutions in the nation, allowing individuals to participate directly in the judicial system.
The first of the panelists to speak, Professor Philip Hamburger began his remarks by contrasting the erosion of individual rights by the administrative state with the Supreme Court’s recent decision in Securities Exchange Commission v. Jarkesy,1 which Professor Hamburger characterized as demonstrating that the right to a jury trial is capable of being resurrected and restored. Professor Hamburger then addressed the inefficiency argument against the provision of jury trials. After arguing that jury trials are not inefficient, Professor Hamburger noted that even assuming that jury trials are inefficient, the inefficiency of trials does not impact the value of the right to a jury trial. Professor Hamburger continued that juries are essential to the distinction between law and fact in the legal field because the presence of a jury requires that the judge writes the law in a way a jury can understand and maintains a division between law and fact. Professor Hamburger concluded his remarks by noting the importance of juries to government function. Because the federal government is shifting enforcement mechanisms from criminal proceedings to civil proceedings and from civil proceedings to administrative proceedings within an agency, civil juries play an important role in the government by acting as non-government arbitrators.
Before discussing the topic of her Article, Professor Suja A. Thomas began her remarks by mentioning her documentary film that explores how the prevalence of plea bargaining, forced arbitration agreements, and summary judgment impacts civil jury trials. Professor Thomas then discussed the content of her Article, which compares the use of summary judgment for discrimination cases in United States courts with the United Kingdom courts’ power to “strike out” such cases. Professor Thomas explained that UK courts may only “strike out” the most plainly and obviously deficient discrimination cases. Professor Thomas then provided examples of employment discrimination and harassment cases in both the US and the UK, demonstrating that US courts are more likely to grant motions for summary judgment than UK courts are likely to strike out such cases. Concluding her remarks, Professor Thomas proposed three explanations for this disparity. First, Professor Thomas explained that UK employment law more greatly favors employees than US law. Next, Professor Thomas noted that US judges are more likely to have previously represented corporations in their legal career than UK judges and that this difference may impact a judge’s rulings. Finally, Professor Thomas explained that UK employment discrimination cases require that the judge participates in the final decision alongside two lay persons. Professor Thomas hypothesized that such a structure may prompt UK judges to refrain from striking out cases that they otherwise would strike out if they were not involved in the final decision.
Professor James Oldham described his Article as exploring the question of when, if ever, unanimous jury verdicts are impeachable under the Mansfield Rule as codified in Federal Rule of Evidence 606(B). Specifically, Professor Oldham’s Article responds to an Article by Andrew J. Hull published in the Southern Illinois University Law Journal. 2 Professor Oldham disagrees with Hull’s claim that the Mansfield Rule is blind to historical context, arguing that English common law was not settled at the time of the Mansfield decision because there was no Supreme Court in England at the time and, thus, no ability to send cases up to a higher court for determination. Professor Oldham then analyzed the extent to which the history of Mansfield Rule has appeared in recent cases, focusing on cases arising after the 2017 Supreme Court decision in Pena-Rodriguez v. Colorado.3 Professor Oldham found that since the Court’s decision in Pena-Rodriguez, only 119 federal and state cases have discussed the ruling.
Following each of the Panelists’ initial remarks, Professor Burchfield addressed questions to the Panelists, starting by asking Professor Hamburger about the likelihood of agencies reinvigorating the use of jury trials in response to the Jarkesy decision. Professor Hamburger noted that he hoped that would be the case but anticipates that agencies will attempt to avoid doing so. Professor Hamburger also later noted that the Jarkesy decision, combined with the Court’s decision in Loper Bright Enterprises v. Raimondo,4 appears to establish a right to be heard by an Article III Court and a right to independent judgment of a judge who holds no deference to any agency.
Professor Burchfield then asked Professor Thomas whether she found the UK strike out procedure to be more similar to the motion to dismiss phase or the summary judgment phase in US courts. Professor Thomas explained that the strike out procedure is most similar to the motion to dismiss phase because there is very little disclosure process in UK pre-trial, as UK courts do not regard pre-trial proceedings as a fact-intensive inquiry, reserving such inquiries to be handled at trial.
Professor Burchfield also asked Professor Oldham his opinion on the exception to the Mansfield Rule created in Pena-Rodriguez, and whether he foresees the creation of other exceptions. Professor Oldham responded that although racial discrimination is abhorrent and should not be tolerated, allowing exceptions to the Mansfield Rule creates a slippery slope, exposing the sanctity of the jury verdict to interrogation and criticism by the losing party.
Finally, Professor Burchfield prompted Professors Thomas and Oldham to assess the benefits and drawbacks of labor arbitration based on their professional experiences. Professor Thomas criticized forced arbitration agreements as disadvantaging employees while benefiting employers, whereas Professor Oldman noted that arbitration is valuable and, to some degree, protected from abuse by the National Academy of Arbitrators. Professor Burchfield concluded the panel by stating that a civil jury trial is a unique right that is worth protecting within the American judicial system.
This summary was authored by Jordan Morris, Associate.