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Better By The Dozen Published Version.pdf
Judicature (2020)
  • Steven S. Gensler
  • Lee H. Rosenthal
  • Patrick E. Higginbotham
A jury of 12 resonates through the centuries. Twelve-person juries were a fixture from at least the 14th century until the 1970s. Over 600 years of history is a powerful endorsement. So too are the many social-science studies consistently showing that a 12-person jury makes for a better deliberative process, with more predictable (and fewer outlier) results, by a more diverse group that is a more representative cross-section of the community. And yet, most federal judges today routinely seat civil juries without the full complement of 12 members. Why? Because in 1973 the United States Supreme Court said it was okay. Since then, the smaller-than-12-person jury has become a habit. For many courts, it has become the default.

To test our shrunken-jury hypothesis, we gathered data from 15 federal districts over the three years from 2016 to 2018. The results are dramatic and confirmed our worst fears. Over 60 percent of the trials in our study were to juries of eight. It is the new normal. No other size jury comes close. Only one in eight civil trials is still heard and decided by the traditional 12-person jury. At the same time, the percentage of civil cases that end in a jury trial continues to plummet, dropping to less than 0.5 percent last year. The result is that we are trying ever fewer civil cases to ever fewer jurors.

We have lost our way. Smaller juries should be the exception, and larger juries the rule. We can change course, and we should do it quickly. At the end of this essay, we offer three concrete steps we think can help.
  • Civil procedure,
  • jury trials,
  • litigation,
  • empirical
Publication Date
Summer 2020
Citation Information
Steven S. Gensler, Lee H. Rosenthal and Patrick E. Higginbotham. "Better By The Dozen Published Version.pdf" Judicature Vol. 104 (2020) p. 46
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