My point is not that verdict differences associated with jury size cannot be revealed through careful empirical investigation. Indeed, at several places in this article I will suggest research strategies likely to reveal such differences. Rather, it is that typical strategies of legal-impact research, such as those utilized in the Colgrove real-world studies, are unlikely to uncover differences associated with jury size however well they control for those plausible rival hypotheses that form the usual threats to the validity of impact research. The reason lies in the unamenability of the jury-size problem to the usual techniques of aggregate data analysis.
Richard O. Lempert,
Uncovering "Nondiscernible" Differences: Empirical Research and the Jury-Size Cases,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol73/iss4/6