By William V. Dorsaneo III

This article provides a brief historical explanation of the role that juries have played in Anglo-American civil trial practice. In doing so, the article documents the rise and fall of jury trial practice as a mechanism for resolving civil disputes in both England and America. The article explains how the modern rules of procedure and procedural statutes promote resolving disputes through pretrial litigation procedures at the expense of resolving disputes by jury trial.

The article begins with a description of the use of juries in England at the end of the twelfth century and continues until the near disappearance of juries in civil cases in England in the second half of the twentieth century. The article continues with the adoption and interpretation of the Seventh Amendment in America by the First Congress and a description of developments in American states, and it ends with the transformation of civil trial practice into modern litigation. The article makes a prediction that the American trial practice will continue to follow England’s lead, moving further away from resolving civil disputes by jury trials.

In England and its colonies, before and after independence from the British Empire in 1776, civil and criminal cases were adjudicated by jury trials, and a jury was a traditional “English right.” This right was regarded as a safeguard of the public’s civil and political liberties on a par with the right to vote and representative government.

But as explained below, by the end of the twentieth century, jury trial practice in civil cases in England was abolished by statute in most cases. Similarly, despite the adoption of the Seventh Amendment to the Constitution in America and of a constitutional right to jury trial by every American state, except Louisiana, by the twenty-first century, the use of jury trials to resolve civil disputes in America had declined, and jury trials had largely vanished.

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Recommended Citation
William V. Dorsaneo III, The Decline of Anglo-American Civil Jury Trial Practice, 71 SMU L. Rev. 353 (2018)