When a fundamental constitutional right is at issue, it is admittedly difficult for the Court to treat the lower courts as laboratories. But if the constitutional right turns on empirical questions, it is better to wait for knowledge than to rush toward a judgment that may later be shown to have vitiated an important right across all circuits. If the Court feels compelled to resolve the conflict, the better decision - if empirical issues are seen as central - is to sustain the right to jury trial regardless of complexity. Sustaining that right will allow courts and researchers to collect the evidence necessary to test crucial empirical assumptions. If it later appears that juries, unlike judges, cannot respond rationally to complexity, the Court will be able to limit the right to jury trial in the future. The opposite decision, finding an exception to the seventh amendment right, will probably forestall future research, for research opportunities will diminish as jury trials in complex cases become less frequent.
In what follows, I argue that the empirical questions on which the constitutional analysis should tum may be substantially illuminated by various techniques of social science research. Part II establishes a starting point - the legal framework that defines the relevance of empirical data. Building on this framework, Part III discusses research strategies designed to answer the relevant empirical questions, and Part IV suggests ways that we might change the trial of complex cases to lower the likelihood of irrational verdicts.
Richard O. Lempert,
Civil Juries and Complex Cases: Let's Not Rush to Judgment,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol80/iss1/3