William & Mary Bill of Rights Journal
In many states, legislatures have mandated juryless fact-finding in common law–based civil cases by imposing compensatory damage caps that effectively lessen the jury’s traditional and historic role as injury valuator. The primary purpose of most caps was to reign in “excessive” civil jury verdicts, which allegedly caused “skyrocketing” medical malpractice insurance premiums and litigation costs. But no legislatively imposed cap is triggered by a preliminary finding of excessiveness. Trial judges have no authority to determine whether application of a cap is just or fair to the (often) severely injured plaintiff. Despite a shared interpretive methodology with regards to the nature and scope of civil jury trial rights, states sharply disagree on the constitutionality of caps. This split does not lie in any textual interpretation of the type of civil jury trial right provided in state constitutions, for disagreement exists even among states with identical clauses.
This Article explores juryless fact-finding in civil cases by turning to Sixth Amendment jurisprudence on mandatory criminal sentencing guidelines. At first blush, compensatory damage caps appear to have little in common with criminal sentencing. Caps reduce a jury’s damage findings to a fixed amount. Sentencing guidelines designated which facts were necessary to support a particular sentence. Yet, both remove the jury or ignore the jury’s factual findings during a significant part of a civil case: the civil jury is removed or ignored during the “damages” phase of a case and the criminal jury is removed or ignored during the “punishment” phase of a case. Thus certain caps and certain mandatory guidelines sentencing schemes lessened the jury’s role as fact-finder and intruded on the jury’s verdict or decree. This Article explores both as parallel mandates of juryless fact-finding in civil and criminal cases.
Sixth Amendment jurisprudence has recently rejected mandatory juryless factfinding for purposes of fixing punishment in criminal cases. Mandatory guidelines that required either reconsideration of a jury’s factual findings or consideration of new facts were initially allowed on the theory that legislatures had authority to designate certain facts in a criminal case as “elements” of the offense that required a jury. Other facts could be designated “enhancements” to the punishment and did not require a jury. This grant of legislative authority was short lived. The Court has recently held that a criminal jury is required to find any fact that increases the maximum and minimum punishment. In other words, a jury is required to make factual findings that determine the high and low end of a criminal sentence regardless of whether a fact is labeled an element or an enhancement. Moreover, such factual findings are enforceable in other stages of the criminal case.
Seventh Amendment jurisprudence remains undeveloped on the issue of mandated juryless fact-finding in civil cases, but the Sixth Amendment offers three lessons about common law criminal juries that arguably should apply in the civil context. First, modern procedures cannot significantly alter certain common law characteristics of the jury trial right. Second, mandatory removal of the jury as the primary fact-finder was not authorized in common law cases. Third, a common law jury’s factual determinations were fully enforceable unless exceptional circumstances were presented. This Article applies these lessons to compensatory damage caps. This Article urges adoption of cap alternatives that encourage individual review upon necessity. Such alternatives should also advance a state’s dual interests to protect both civilly liable defendants from unreasonably high awards and severely injured plaintiffs from unreasonably low awards.