What Will We Lose If the Trial Vanishes?

Can Juries be Lost in Translation?

“…Some see more than coincidence in the fact that greater inclusiveness on U.S. juries coincides with its dismantling. For example, Burns () suggests that as the jury has become more representative and more democratic in recent decades, tensions naturally increase between how juries achieve justice versus what other (more elite) “social systems”—corporations, courts striving for efficiencies, and other powerful political institutions‐expect juries to do. This tension “may become close to intolerable, leading to various forms of pressure to reduce its [the jury's] significance in the legal order” (2011, p. 586).…”

“…Other taken‐for‐granted assumptions undermine the jury. Some judges have come to see trials as failures in their ongoing efforts to manage their dockets (Burns ), and the system is self‐reinforcing: as younger litigators fail to gain experience in trying cases before juries, they are more likely to avoid pushing for trial in cases to come (Burns )…”

“…Are some features of a jury necessary in order to call it a “jury,” and when has a body been altered or “translated” so much that its core functions and capabilities threaten to be lost in the process? I am no expert in international research, and I have borrowed liberally from those who have meditated on translating juries or have theorized about them (e.g., Abramson ; Burns ; Lempert ; Thaman ). I use this essay for thinking about the “juryness” of a decision making body and consider which features of a jury might be associated with which effects.…”