At our Sept. 12 discussion, Steve Goldberg delivered a version of the following remarks:
Jim Oldham, the
preeminent authority on Lord Mansfield, is fast becoming the preeminent
authority on the history of the civil jury. His new book, Trial
By Jury, is an indispensable contribution to that important field.
I wanted to say a few words about Jim’s chapter on the Complexity Exception to the right to a jury trial. The Supreme Court has never ruled on whether such an exception exists, and apart from a Third Circuit decision in 1980, it has rarely been successfully invoked in the federal courts. As a result, juries today hear cases of enormous economic and scientific complexity in areas ranging from antitrust to toxic torts. Because the Supreme Court has adhered to the historical test for the scope of the Seventh Amendment, many observers see us stuck with an outdated system that uses overburdened juries.
Jim dismantles this argument. Writing with characteristic elegance and insight, he goes beyond Lord Devlin’s well known arguments, and demonstrates more strongly than Devlin ever did that if we look at the actual practice in England in 1791 the complexity exception can be justified. Jim points out that in the late eighteenth century numerous cases in England were decided by arbitrators with specialized knowledge, not by juries. Jim couples this with the undisputed fact that the English at this time also used special merchant juries as well as other special juries for many complex cases, a practice that has faded away in this country. In sum, if we actually adhered to the historical practice approach, juries would be relieved of many complex cases today.
Jim’s book got me thinking about an analogous issue that is much-discussed today. If you ask a modern lawyer about the problem of juries grappling with complex matters, he is likely to say that at least the Daubert decision removes some of those problems. Daubert, as you know, gave the trial judge a gatekeeper function so that he could keep from the jury expert witnesses who were too far out of the mainstream, that is, who were not using reliable scientific methodologies. But Jim’s insights lead us to look more closely at that assertion. Think about it. If a judge finds that an expert, offering (for example) a novel theory about whether a product is toxic, is indeed reliable, the case goes to the jury where it will be confronted with a true nightmare of complexity: the much-feared battle of the experts, which the jury will have to somehow sort out.
And what is a judge doing when he keeps an expert off the stand? The judge is either deciding that the testimony is not reliable, a question that is supposed to involve looking at the presence or absence of peer reviewed publications and other factors that are not themselves necessarily complex. Moreover, as Mike Gottesman has argued in an important article, in some cases the judge in a Daubert hearing may not be able to penetrate the expert’s work, but he keeps the expert off the stand because the judge has decided that the expert is a charlatan, the very sort of classic demeanor-style question that juries are supposed to resolve.
So I’m indebted to Jim for sharpening my thinking in this field, and we are all indebted to him for his outstanding work in this book.