At MassTortDefense we typically focus on cases, statutes, and the like, but certainly can make room for a thought-provoking academic piece. Professor Laura G. Dooley, Valparaiso University, has written National Juries For National Cases: Preserving Citizen Participation In Large-Scale Litigation in the NYU Law Review. Her observation: procedural evolution in complex cases seems to have left the civil jury behind. The trend toward centralization of cases pending on the same topic in one court results in cases of national scope being tried by local juries; this reality is a catalyst for forum shopping and a frequent justification for calls to eliminate jury trial in complex cases altogether. Yet, the jury is at the heart of a uniquely American understanding of civil justice, and the Seventh Amendment still mandates its use in federal cases. This article makes a new proposal designed to the constitutional and functional value of citizen participation in the civil justice system by aligning the jury assembly mechanism with the scope of the litigation.

When parties litigate a case of national scope, often a mass tort, this article argues
that the proper jury pool is neither local (as in state court, where jury pools are typically defined along county lines) nor regional (as might be true in a federal district), but rather a national jury drawn from a national pool.

The professor argues that this idea would eliminate incentives to forum-shop into local jury pools, and would make the decision-making body commensurate with the polity that will feel the effects of its decisions. She also postulates a higher level of legitimacy for decisions rendered by a national jury in national cases because they would not be subject to the criticism that a local jury is imposing its values on the rest of the country, and because geographical diversification of the jury would enhance the quality of decision-making. She asserts that the allegedly waning legitimacy of the civil jury in large-scale litigation reflects the disparity between the scope of the local jury pool and the scope of the cases. Moreover, the democratic values animating the Seventh Amendment can best be realized in large-scale litigation by empaneling a national jury, she says.

Interesting. In mass torts, we certainly have seen considerable forum shopping by plaintiffs; frequent attempts by defendants to remove to federal court because of jury pool issues; much anxiety over the use and selection of bellwether trials; and ongoing debate about the role of MDL courts in the early trials in consolidated federal litigation. Readers may have some comments on this one….