National juries for national cases: Preserving citizen participation in large-scale litigation

New York University Law Review

Volumn 83, Issue 2, 2008, Pages 411-449

  Dooley, Laura G ^a  

^a VALPARAISO UNIVERSITY   (United States)

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EID: 46149104145     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (204)

1. See generally Laura Gaston Dooley, Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, 80 CORNELL L. REV. 325 (1995).
2. Evidence of this trend is the Aggregate Litigation project currently underway in the American Law Institute. The American Law Institute, Principles of the Law of Aggregate Litigation, http://www.ali.org/index.cfm?fuseaction= projects.proj_ip&projectid=7 (last visited Feb. 29, 2008).
3. For the project's most recent publication draft, see PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION (Discussion Draft No. 2, 2007) [hereinafter AGGREGATE LITIGATION].
4. These players include repeat defendants as well as plaintiffs' lawyers who form consortiums of varying degrees of formality and who often represent multiple plaintiffs. The forum-shopping problem is particularly acute in mass tort cases and has prompted recent legislative reform. E.g., Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified as amended in scattered sections of 28 U.S.C).
5. See generally JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE § 14.14, at 723-30 (4th ed. 2005) (describing doctrine of issue preclusion and its expansion beyond doctrine of mutuality).
6. See id. at 727-28 (describing standard by which courts determine propriety of offensive issue preclusion). Many courts refuse to allow offensive issue preclusion against a defendant who has won the issue in at least one previous case, even if another plaintiff has later won the issue. See id. at 726 (providing rationale for denying issue preclusion in this scenario).
7. In the first case, a Texas jury found for the plaintiff and awarded $253.5 million in compensatory and punitive damages. Ernst v. Merck & Co., No. 19961-BH02, 2005 WL 2620257 (Tex. Dist. Ct. Aug. 19, 2005); Walter T. Champion, The Vioxx® Litigation Paradigm: The Search for Smoking Guns, 31 T. MARSHALL L. REV. 157, 180 (2006). Because Texas law caps punitive damages, the award was subject to automatic reduction. Id. In New Jersey, a second jury found in favor of Merck, the producer of the drug. Humeston v. Merck & Co., No. ATL-L-2272-03-M, 2005 WL 3440614 (N.J. Super. Ct. Law Div. Nov. 3, 2005). The trial court later granted plaintiff's motion for a new trial on the basis of "new evidence." Humeston v. Merck & Co., No. ATL-L-2272-03-MT (N.J. Super. Ct. Law Div. Aug. 17, 2006) (order granting plaintiff's motion for new trial). The jury empanelled in the second New Jersey trial returned a verdict for $20 million in compensatory damages and an additional $27.5 million in punitive damages.
8. Heather Won Tesoriero, Jury Awards $47.5 Million to Man in Vioxx Retrial, WALL ST. J., Mar. 13, 2007, at A3;
9. see also Benjamin Zipursky, Much Pain, Much Gain: Skeptical Ruminations on the Vioxx Litigation, JURIST, Jan. 23, 2006, http://jurist.law.pitt.edu/forumy/2006/01/much-pain-much-gain-skeptical.php (describing "rough justice" wrought by inconsistent verdicts in first two Vioxx cases). The third jury to consider a Vioxx claim deadlocked eight to one in favor of Merck, resulting in a mistrial. Champion, supra, at 182. Merck won the subsequent retrial, but the court ordered a third trial, agreeing with the plaintiff that one of Merck's key expert witnesses misrepresented his qualifications. Plunkett v. Merck & Co. (In re Vioxx Prods. Liab. Litig.), 489 F. Supp. 2d 587, 588 (E.D. La. 2007) (order granting plaintiff's motion for new trial).
10. See Edward F. Sherman, Segmenting Aggregate Litigation: Initiatives and Impediments for Reshaping the Trial Process, 25 REV. LITIG. 691, 697-98 (2006) (describing use of early "bellwether" cases in Vioxx litigation and their function in driving settlement).
11. Federal Vioxx cases were transferred under the Multidistrict Litigation Act, 28 U.S.C. § 1407 (2000), to the Eastern District of Louisiana, where many are still pending. See In re Vioxx Prods. Liab. Litig., 360 F. Supp. 2d 1352, 1354-55 (J.P.M.L. 2005) (order transferring cases pursuant to § 1407); MDL-1657 Vioxx Product Liability Litigation, Current Developments, http://vioxx.laed.uscourts.gov/ (last visited Feb. 29, 2008) (listing developments in consolidated proceedings). For a description of the multidistrict litigation (MDL) process, see infra notes 38-46 and accompanying text.
12. On November 9, 2007, Merck announced a proposed global settlement of the Vioxx litigation for $4.85 billion, an amount analysts described as a good deal for Merck, which faces liability valued in the tens of billions of dollars. Alex Berenson, Analysts See Merck Victory in Vioxx Deal, N.Y. TIMES, Nov. 10, 2007, at A1.
13. The two most commonly used pretrial dispositions under the Federal Rules of Civil Procedure are the motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted and the motion for summary judgment under Rule 56. FED. R. CIV. P. 12(b)(6), 56.
14. Pub. L. No. 107-273 § 11020, 116 Stat. 1758, 1826 (2002) (codified as amended in scattered sections of 28 U.S.C).
15. Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified as amended in scattered sections of 28 U.S.C).
16. See Edward F. Sherman, Class Actions After the Class Action Fairness Act of 2005, 80 TUL. L. REV. 1593, 1595 (2006) (describing these counties as "magnet venues" due to "pro-plaintiff" reputations).
17. See JoEllen Lind, "Procedural Swift": Complex Litigation Reform, State Tort Law, and Democratic Values, 37 AKRON L. REV. 717, 717-18 (2004) ("[H]ostility of the federal courts to plaintiffs' tort claims is old news to repeat defendants who have always found the national courts more congenial.").
18. See FED. R. CIV. P. 26(b)(2) (giving federal judge power to impose limits on extent and frequency of discovery).
19. See FED. R. CIV. P. 56 (authorizing entry of summary judgment when there exists "no genuine issue as to any material fact"); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (allowing defendants to support motions for summary judgment by pointing out lack of evidence to support essential elements of plaintiffs' claims rather than affirmatively negating plaintiffs' claims).
20. See Dooley, supra note 1, at 333-34, 334 n.40 (describing ability of judges in federal civil cases to control jury verdicts using FED. R. CIV. P. 50 to enter judgment as matter of law).
21. See Laura G. Dooley, The Dilution Effect: Federalization, Fair Cross-Sections, and the Concept of Community, 54 DEPAUL L. REV. 79, 87-90 (2004) (describing assembly of jury pools in federal court and demographic consequences of drawing jurors from federal districts rather than counties).
22. Id. at 88-90.
23. Multidistrict Litigation Act, 28 U.S.C. § 1407 (2000); see also 28 U.S.C. § 1404(a) (2000) (allowing transfer of federal case to another federal district where case could have been brought "[f]or the convenience of parties and witnesses [and] in the interests of justice").
24. See generally CHRISTOPHER W. MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT (3d ed., rev. 2003) (providing broad overview of alternative dispute resolution processes).
25. See Marc Galanter, The Hundred-Year Decline of Trials and the Thirty Years War, 57 STAN. L. REV. 1255, 1260 (2005) ("The recent decline has been precipitous in the federal courts, where the number of civil trials fell by two-thirds from a high of 12,570 in 1985 to 4206 in 2003.");
26. Kirk W. Schuler, Note, ADR's Biggest Compromise, 54 DRAKE L. REV. 751, 761-63 (2006) (describing decline in federal civil jury trials and noting that in 2005, juries decided less than one percent of civil cases terminated in federal court). Much has been made in the scholarly literature, including by the author of this Article, of the anti-populist features of modern procedural devices that effectively steer cases away from jury trial. See, e.g., Dooley, supra note 1, at 357-60 (describing twentieth-century expansion of directed verdict procedure).
27. This has been true since the beginning of the republic and was the driving political force behind the Antifederalist effort to include the right to a civil jury trial in the Bill of Rights. See Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 HASTINGS L.J. 579, 598-600 (1993) (describing Antifederalist efforts to defeat constitutional ratification by citing lack of civil jury guarantee and describing populist movement to include guarantee in Bill of Rights).
28. 28 U.S.C. § 1407 (2000).
29. 28 U.S.C. §§ 1332(d), 1453 (Supp. V 2007).
30. Cf. In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1300 (7th Cir. 1995) (reasoning that fate of entire industry should not be vested in one local jury). One can imagine a situation in which a national jury is summoned to serve in a case that remains in the district in which it was originally filed.
31. U.S. CONST. amend. VII.
32. See 28 U.S.C. §§ 1332(d), 1453 (Supp. V 2007) (providing federal jurisdiction in class actions involving minimal diversity if amount in controversy exceeds $5 million and allowing removal from state court in such cases); 28 U.S.C. §§ 1369, 1441 (2000 & Supp. IV 2004) (providing federal jurisdiction in civil actions involving minimal diversity if seventy-five natural persons died in single accident and allowing removal from state court in such cases).
33. See Edward F. Sherman, Decline & Fall, A.B.A. J., June 2007, at 50, 53 ("The business community was especially irked that an undue proportion of multistate class actions were filed in 'magnet venue' state courts . . . where the judges - usually elected - were more likely to certify a class action and the juries tended to be pro-plaintiff.").
34. Cf. Bruce Moyer, Class Actions Move to Federal Court, FED. LAW., Mar.-Apr. 2005, at 10, 10 (quoting lawmaker's statement that CAFA is "the Vioxx protection bill, it is the Wal-Mart protection bill, it is the Tyco protection bill, and it is the Enron protection bill").
35. See Sherman, supra note 7, at 696-98, 696 n.18 (noting that "the term [bellwether] comes from a lead sheep in a flock that wears a bell," and describing use of such representative suits in Vioxx MDL proceeding).
36. Multidistrict Litigation Act, 28 U.S.C. § 1407 (2000).
37. Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified as amended in scattered sections of 28 U.S.C).
38. See, e.g., AGGREGATE LITIGATION, supra note 2 (discussing principles and major challenges of aggregate litigation).
39. RICHARD L. MARCUS & EDWARD F. SHERMAN, COMPLEX LITIGATION: CASES AND MATERIALS ON ADVANCED CIVIL PROCEDURE 142 (4th ed. 2004).
40. Id.
41. Id. at 3.
42. Because states are separate sovereigns, the MDL panel has no power to transfer cases from state to federal court. But defendants' ability to remove cases, now expanded under CAFA and MMTJA, means that a large proportion of litigation that one might consider "national" will end up in federal court and thus become subject to MDL treatment. See Sherman, supra note 13, at 1608 ("After CAFA, the federal courts are essentially 'the only game in town' for multistate and national class actions."). Indeed, the presence of overlapping class actions is a factor that favors MDL transfer of related cases. See Note, The Judicial Panel and the Conduct of Multidistrict Litigation, 87 HARV. L. REV. 1001, 1010 (1974) ("[Granting class action transfers] is intended to prevent the confusion and delay that would result if two courts were to enter determinations that similar actions should proceed as class actions with regard to all plaintiffs similarly situated."). However, when "mass actions" are removed under CAFA, transfer under the MDL statute cannot occur "unless a majority of the plaintiffs in the [mass] action request transfer pursuant to section 1407." 28 U.S.C. § 1332(d)(11)(C)(i) (Supp. V 2007). Thus, an incentive remains for plaintiffs' attorneys to file cases en masse in a district that they perceive to be a favorable jury pool.
43. 28 U.S.C. § 1407(d) (2000). The threshold question is whether the cases share "one or more common questions of fact." § 1407(a). If so, the panel may order MDL treatment, but it is not required to do so. See Gregory Hansel, Extreme Litigation: An Interview with Judge Wm. Terrell Hodges, Chairman of the Judicial Panel on Multidistrict Litigation, ME. B.J., Winter 2004, at 16, 16 (listing factors in deciding whether to transfer cases).
44. See MANUAL FOR COMPLEX LITIGATION (FOURTH) § 20.132 (2004) ("[A] judge may terminate actions by ruling on motions to dismiss, for summary judgment, or pursuant to settlement, and may enter consent decrees."); see also Hansel, supra note 39, at 21 (reporting that once MDL cases are centralized, they tend to settle or be resolved by summary judgment by transferee judge).
45. § 1407(a).
46. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 102 F.3d 1524, 1541 (9th Cir. 1996) (Kozinski, J., dissenting) (discussing practice of "self transfer," noting that "after the MDL process got underway . . . [j]udges began to develop proprietary feelings toward the cases entrusted to them" and began routinely holding on to these cases for trial through venue transfer statute, 28 U.S.C. § 1404(a) (2000)), rev'd, 523 U.S. 26 (1998); see also id. at 1532 & n.3 (majority opinion) (listing cases that had recognized courts' authority to transfer cases to themselves).
47. 523 U.S. at 28.
48. Id. at 40.
49. See Multidistrict Litigation Restoration Act of 2005, H.R. 1038, 109th Cong. (as passed by House, Apr. 19, 2005) (providing statutory mechanism to transfer certain MDL cases for trial purposes); S. 3734, 109th Cong. (2006) (as introduced in Senate, July 26, 2006) (same). The bill passed the House but not the Senate. Russell R. Wheeler & Robert A. Katzmann, A Primer on Interbranch Relations, 95 GEO. L.J. 1155, 1164 (2007).
50. See Hansel, supra note 39, at 21 (noting that MDL litigation, "like all cases . . . tends to settle or is resolved by summary judgment").
51. Indeed, the Panel denied transfer on five separate occasions, though the earlier cases presented smaller units of litigation. In re Asbestos Prods. Liab. Litig. (No. VI), 771 F. Supp. 415, 417-18, 417 n.4 (J.P.M.L. 1991).
52. Id. at 424-25 (ordering transfer of over 26,000 asbestos personal injury cases to Eastern District of Pennsylvania for coordinated or consolidated pretrial proceedings). That consolidated litigation produced Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), the most important decision to emerge so far from the Supreme Court on the subject of settlement class actions. Interestingly, the settlement class ultimately decertified by the Court was comprised of asbestos victims who had yet to file claims and therefore were not directly involved in the coordinated MDL proceedings. Id. at 601. The "futures" class was the brainchild of both attorneys for the defendant and attorneys for the current MDL plaintiffs. See id. at 599-601 (summarizing negotiation process).
53. Amchem, 521 U.S. at 598-99, 622-23.
54. Bills were introduced in the Senate and referred to the Senate Judiciary Committee in both the 108th and 109th Congresses. See Fairness in Asbestos Injury Resolution Act of 2005, S. 852, 109th Cong. (as introduced in Senate, Apr. 19, 2005) (providing for national asbestos injury claims resolution system); Fairness in Asbestos Injury Resolution Act of 2003, S. 1125, 108th Cong. (as introduced in Senate, May 22, 2003) (same). Both the bills were reported to the Senate but made no further progress. Cf. James L. Stengel, The Asbestos End-Game, N.Y.U. ANN. SURV. AM. L. 223, 223-24 (2006) (discussing failed 2005 bill and predicting that "a comprehensive federal legislative solution will not eventuate").
55. See In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 288 F.3d 1012, 1021 (7th Cir. 2002) (reversing district court's certification of nationwide classes in MDL proceeding).
56. See supra notes 6-8 and accompanying text (describing initial stages of Vioxx litigation).
57. See generally Sherman, supra note 13 (surveying CAFA's resulting expansion of federal jurisdiction).
58. 28 U.S.C. § 1332(d)(2). Under the general diversity statute, all plaintiffs must be diverse (i.e., from different states) from all defendants. 28 U.S.C. § 1332(a) (2000); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). In class actions prior to CAFA, the Supreme Court had long interpreted the diversity statute to require complete diversity only of named representatives. E.g., Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 367 (1921). As a result, by choosing nondiverse class representatives, plaintiffs' attorneys could preserve a state forum for the class action.
59. Currently set at $75,000, the amount-in-controversy requirement, § 1332(a), prohibited many large-number, small-claim suits from being litigated in federal court. See Zahn v. Int'l Paper Co., 414 U.S. 291, 301 (1973) (finding no federal jurisdiction over class action where named plaintiffs met amount-in-controversy requirement but unnamed plaintiffs did not). In 2005, the Supreme Court held that the supplemental jurisdiction statute, 28 U.S.C. § 1367 (2000), overrules Zahn and allows jurisdiction over additional claims, including those by other class members, as long as one plaintiff meets the amount-in-controversy requirement. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 549 (2005). CAFA superimposes on the new Allapattah rule an additional basis for federal jurisdiction when no class member has a claim greater than $75,000, allowing claims that aggregate to an amount exceeding $5 million. 28 U.S.C. § 1332(d)(2) (Supp. V 2007).
60. Under the general removal statute, 28 U.S.C. § 1441(b) (2000), defendants who are sued in a state court in their own home districts may not remove to federal court on diversity grounds, on the theory that they already enjoy any home court advantage and therefore do not need access to a federal forum to protect against a local disadvantage. See FRIEDENTHAL ET AL., supra note 4, § 2.11, at 63 (noting that in-state defendant "hardly can expect to encounter prejudice against out-of-staters in the courts of his home state so there is no reason for extending federal jurisdiction"). CAFA eliminates this impediment as to class actions within its jurisdictional purview. 28 U.S.C. § 1453(b) (Supp. V 2007).
61. Indeed, Congress explicitly stated that one of the concerns prompting CAFA was that cases "of national importance" were being kept out of federal courts and that state and local courts were "making judgments that impose their view of the law on other States and bind the rights of the residents of those States." 28 U.S.C. § 1711 note (Supp. V 2007) (Class Action Fairness Act §§ 2(a)(4)(A), (C)). Other provisions within CAFA, known as the "Consumer Class Action Bill of Rights," 28 U.S.C. §§ 1711-15 (Supp. V 2007), deal with problems such as unclear class notice and coupon settlements. But because recent amendments to FED. R. CIV. P. 23 and increased judicial oversight already addressed these problems, Congress was more focused on CAFA's jurisdictional innovations by the time it came to a vote. The motivating force was to curtail perceived rampant forum-shopping by plaintiffs' attorneys. Sherman, supra note 13, at 1594-95.
62. See Ann Knef, Federal Courts Taking on Class Action Burden Post CAFA, MADISON-ST. CLAIR REC., Feb. 19, 2007, at 5
63. (quoting Brian Wingfield, Class-Action Law Gums Up Courts, FORBES.COM, Feb. 15, 2007, http://www.forbes.com/2007/02/14/class- action-law-suits-biz-cx_bw_0215class.html), available at http://www.madisonrecord.com/printer/article.asp?c=190648 (noting that Congress intended CAFA to reduce forum-shopping by plaintiffs).
64. Id. (quoting President Bush). The American Tort Reform Association was an effective lobbyist for the legislation. See AM. TORT REFORM FOUND., JUDICIAL HELLHOLES 2005, at 6 (2005), available at http://www.atra.org/ reports/hellholes/2005/hellholes2005.pdf (criticizing Madison County and other jurisdictions seen as unfair to civil defendants).
65. Ann Knef, Class Action Fairness Act: Is it Working?, MADISON-ST. CLAIR REC., Mar. 27, 2006, at 1, available at http://www.madisonrecord.com/printer/article.asp?c=176457.
66. Id. at 7 (paraphrasing statement by attorney Richard W. Cohen that "plaintiffs in complex cases such as anti-trust matters prefer federal court where juries are perceived as more sophisticated and judges more competent"). Interestingly, the prospect that federal jurors would be more sophisticated than their state counterparts may well have been the impetus behind the Framers' creation of diversity jurisdiction. See Robert L. Jones, Finishing a Friendly Argument: The Jury and the Historical Origins of Diversity Jurisdiction, 82 N.Y.U. L. REV. 997, 1070-76, 1095 (2007) (describing Federalist defeat of vicinage requirement for civil juries, thus allowing federal juries to be drawn mostly from commercial centers, and arguing that "it was the very prospect of [the control and manipulation of the jury pool] that most motivated the Framers to establish diversity jurisdiction").
67. Peter H. Schuck, Judicial Avoidance of Juries in Mass Tort Litigation, 48 DEPAUL L. REV. 479, 480 (1998);
68. see also Kevin M. Clermont & Theodore Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77 CORNELL L. REV. 1124, 1149 (1992) (describing "lawyers' longstanding perceptions" of juries as biased "in favor of the plaintiff or the little person on liability and toward generosity on damages"). Professors Clermont and Eisenberg demonstrate that these perceptions lack an empirical basis. Id. at 1152 ("[R]esearch does not support a view of the jury as overly generous on awards, frequently ignoring the law, or institutionally unable to handle complex cases.").
69. Since plaintiffs generally bear the burden of proof at trial, defendants can attack their cases and avoid jury decisions by convincing the court before trial that no "genuine issue" exists as to an essential element of plaintiffs' claims, entitling defendants to summary judgment. FED. R. CIV. P. 56; FRIEDENTHAL ET AL., supra note 4, § 9.3, at 477. After the plaintiff has had the opportunity to present her case at trial, the defendant is entitled to a judgment as a matter of law if the court finds that "a reasonable jury would not have a legally sufficient evidentiary basis" to find for the plaintiff. FED. R. CIV. P. 50(a); see FRIEDENTHAL ET AL., supra note 4, § 12.3, at 579 (noting that directed verdict "acts somewhat like a delayed summary-judgment motion in that it determines that there are no genuine issues of fact that need to be sent to the jury").
70. See Jeremy T. Grabill, Comment, Multistate Class Actions Properly Frustrated by Choice-of-Law Complexities: The Role of Parallel Litigation in the Courts, 80 TUL. L. REV. 299, 307-09 (2005) (explaining how choice-of-law problems, particularly in tort cases, frustrate class certification under FED. R. CIV. P. 23).
71. Interestingly, Congress rejected a proposed amendment to CAFA that would have instructed federal courts not to refuse class certification based on choice-of-law concerns. The amendment, proposed by Senator Feinstein of California, read as follows: Notwithstanding any other choice of law rule, in any class action, over which the district courts have jurisdiction, asserting claims arising under State law . . . the district court shall not deny class certification, in whole or in part, on the ground that the law of more than 1 State will be applied. 151 CONG. REC. S1166 (daily ed. Feb. 9, 2005). The amendment was defeated by a vote of sixty-one to thirty-eight. Id. at S1184; Grabill, supra note 64, at 317 & n.102. This issue arose in the Vioxx litigation, where defense attorneys argued that the court should not certify a national class for medical monitoring because of differences in state law, even though the cases had been concentrated in one federal court pursuant to CAFA and MDL. Sherman, supra note 13, at 1608-09.
72. See Thomas E. Willging & Shannon R. Wheatman, Attorney Choice of Forum in Class Action Litigation: What Difference Does It Make?, 81 NOTRE DAME L. REV. 591, 598 (2006) ("In a nation with fifty state court systems as well as ninety-four federal districts . . . attorneys will have choices.").
73. See Sherman, supra note 29, at 53 ("[P]laintiffs lawyers may engage in forum-shopping at the federal level, searching for courts with favorable precedents in their circuits primarily on the issue of 'predominance.'").
74. See 28 U.S.C. § 1332(d)(2) (Supp. V 2007) (requiring that "the matter in controversy exceed[ ] the sum or value of $5 million, exclusive of interest and costs").
75. See Lowdermilk v. U.S. Bank Nat'l Ass'n, 479 F.3d 994, 999 (9th Cir. 2007) (adopting "legal certainty" standard). Plaintiffs can still capture a local jury pool by filing a case beneath the jurisdictional minimum amount in controversy. But the availability of a national jury might offset other perceived procedural disadvantages, making plaintiffs less likely to adopt this strategy in cases at the margins.
76. § 1332(d)(11)(B)(i). Currently, the jurisdictional amount requirement is $75,000. § 1332(a) (2000).
77. § 1332(d)(11)(B)(ii)(IV).
78. § 1332(d)(11)(C)(i).
79. See Dooley, supra note 18, at 88-90 (describing demographic differences between state counties and federal districts in five metropolitan areas).
80. 28 U.S.C. § 1369(a) (Supp. II 2003). The statute distinguishes between corporate citizenship - the traditional notion that corporate citizenship exists in the state(s) of incorporation and principal place of business - and corporate residence, which is any state in which the corporation "is incorporated or licensed to do business or is doing business." § 1369(c)(2). The statute also imposes minimal requirements of multistate contacts, § 1369(a)(1)-(3), and conversely advises district courts to "abstain" from exercising jurisdiction when the contacts are concentrated in a single state, § 1369(b).
81. § 1369(a) ("[D]istrict courts shall have original jurisdiction of any civil action involving minimal diversity between adverse parties that arises from a single accident, where at least seventy-five natural persons have died in the accident at a discrete location." (emphasis added)); see H.R. REP. NO. 107-685, at 199-201 (2002) (Conf. Rep.), as reprinted in 2002 U.S.C.C.A.N. 1120, 1151-53 (detailing legislative response to airplane accidents and other mass accidents); 147 CONG. REC. 3583-84 (2001) (statement of Rep. Sensenbrenner) (introducing various features of MMTJA, including improved treatment of mass accident cases).
82. By contrast, products liability cases, which involve injuries to consumers in many discrete locations over a period of time, would not qualify for multiparty, multiforum treatment under § 1369. Representative Kastenmeier addressed opponents who feared that MMTJA would apply to ordinary products liability cases: Their primary concern was that while the bill as originally drafted may have been directed toward airline crashes and similar events, it could conceivably have been misapplied to ordinary products liability and toxic exposure cases. It was never our intention to reach routine products liability or toxic exposure cases, and the bill was amended at subcommittee markup to make that absolutely clear. 136 CONG. REC. 12,612 (1990) (statement of Rep. Kastenmeier); see also Laura Offenbacher, Note, The Multiparty, Multiforum Trial Jurisdiction Act: Opening the Door to Class Action Reform, 23 REV. LITIG. 177, 184-88 (2004) (surveying sponsors' and critics' arguments about scope and fairness of § 1369).
83. Passa v. Derderian, 308 F. Supp. 2d 43, 48-49 (D.R.I. 2004). Plaintiffs argued that the case was essentially local in character, citing state court litigation already in progress. Id. at 64-65. The federal district court rejected plaintiffs' argument and retained the case. Id. at 65.
84. Based on "the data available to the Court," over 60% of those killed or injured in the fire were residents of Rhode Island, Massachusetts, or Connecticut. Id. at 60. The residency of 34.3% of those killed or injured could not be established. Id. While the litigants disputed the definition and scope of "primary defendants," many high-profile defendants (such as the nightclub owners) were Rhode Island residents. Id. at 61.
85. § 1369(b). Corporate "residence" triggers jurisdiction; corporate "citizenship" of the primary defendant, if the same as a substantial majority of plaintiffs, defeats it. Id. See generally Lind, supra note 14, at 737-45 (describing how MMTJA expands federal jurisdiction by focusing on corporate residence rather than citizenship and evaluating effect of federal procedural innovations on state power and democratic values).
86. Passa, 308 F. Supp. 2d at 62-63.
87. Id.
88. Litigation arising out of Hurricane Katrina, consisting primarily of claims against insurers, has sparked controversy as to whether § 1369 jurisdiction could properly be invoked. See generally Stephen Aslett, Recent Development, Wallace v. Louisiana Citizens Property Insurance Corp.: The Fifth Circuit Expands Federal Jurisdiction over State Court Class Actions Arising out of Hurricane Katrina, 81 TUL. L. REV. 1331 (2007) (describing applicability of MMTJA jurisdiction to claims arising out of Hurricane Katrina). Because Hurricane Katrina - and more particularly the governmental and private response to it deemed inadequate by so many - captured the attention of the nation, the resolution of Katrina-related disputes is arguably a national interest.
89. See infra Part II.A (describing primary reasons for preferring national jury pool).
90. AM. LAW INST., COMPLEX LITIGATION: STATUTORY RECOMMENDATIONS AND ANALYSIS (1993) [hereinafter COMPLEX LITIGATION]. As listed in the foreword, the project's recommendations include enhancement of authority in federal courts for consolidation within the federal system of related cases in complex litigation . . . ; procedural mechanisms for consolidation among state courts and by transfer of cases from the federal courts to state courts . . . ; broader removal jurisdiction whereby to bring related cases in complex litigation into the federal courts from state courts and the enhancement of authority in the federal courts to encourage intersystem consolidation . . . ; and choice of law rules having greater specificity than those generally obtaining in contemporary law. Id. at xvii.
91. For example, the proposed statute would allow multidistrict consolidation for trial as well as pretrial, effectively expanding the MDL concept. Id. app. A § 1407(b), at 438. After the Supreme Court's 1998 decision in Lexecon, Congress would have to amend the MDL statute to allow this. See supra notes 43-45 and accompanying text.
92. See COMPLEX LITIGATION, supra note 84, app. A § 1407(e)(1)-(4), at 439-40 (describing factors to determine whether to consolidate federal and state actions in one court).
93. Indeed, the ALI intended the proposed legislation to modify the current MDL statute. See id. app. A at 437 (suggesting that proposed "complex litigation statute" might be adopted to amend 28 U.S.C. § 1407). Such a "complex litigation panel" might be ideally suited to address the amenability of particular pieces of large-scale litigation to national jury treatment.
94. For example, transferee judges would have the power to enjoin transactionally related proceedings in any state or federal court and to command intervention of nonparties on pain of being bound by factual determinations made in the transferee court. Id. app. A § 1407A(f), (g), at 443-44.
95. Id. at xviii.
96. The ALI Reporters do consider Seventh Amendment implications for bifurcation of liability and damages. When multiple juries consider overlapping issues, like causation and comparative negligence, bifurcation may run afoul of the Seventh Amendment's prohibition on the "reexamination" of facts found by a federal civil jury. See infra text accompanying notes 94-97,
97. Indeed, the Reporters devoted a whole section of the project to developing national choice-of-law rules for complex cases: [T]he difficulties associated with complex litigation identify it as a national problem. Certainly, the most direct way to attempt to solve the issues posed would be to adopt national standards to govern the conduct of individuals or entities who are engaging in activity having interstate effects and who now are controlled by multiple, sometimes conflicting, state laws. COMPLEX LITIGATION, supra note 84, ch. 6 Introductory Note, at 305. Noting the political difficulties of proposing new choice-of-law rules, the Reporters recommend that Congress enact "a coherent and uniform federal choice of law code." Id.
98. The American Law Institute, Principles of the Law of Aggregate Litigation, supra note 2.
99. See supra note 90.
100. U.S. CONST. amend. VII ("[N]o fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.").
101. See generally Patrick Woolley, Mass Tort Litigation and the Seventh Amendment Reexamination Clause, 83 IOWA L. REV. 499, 531-33 (1998) (explaining reexamination problem in aggregate litigation of particular issues and concluding that it should not impede formation of issue classes).
102. AGGREGATE LITIGATION, supra note 2, § 2.11 cmt. c, at 183. The Reporters noted that some states allowed appellate override at the time of the founding. Id.
103. For more of the Seventh Amendment justification for the national jury proposal, see generally Part II infra.
104. See supra note 31 (describing origin and meaning of term "bellwether").
105. Very occasionally, other parties will agree in advance to adhere to the verdict rendered in a bellwether case. See MANUAL FOR COMPLEX LITIGATION (FOURTH) § 20.132 (2004) (stating that MDL transferee court may conduct bellwether trial which, upon consent of parties to constituent actions not filed in transferee district, may be binding on them); see also Sherman, supra note 7, at 696-97 (describing as "rare" situations when parties agree in advance to be bound by bellwether decisions); cf. In re Air Crash Disaster at Stapleton Int'l Airport, 720 F. Supp. 1505, 1510 (D. Colo. 1989) (noting that parties in multidistrict litigation agreed to be bound on specific issues as resolved by exemplar trial). More often, the principles of issue preclusion, or collateral estoppel, allow a future court to use a finding made by an earlier bellwether case, and early results drive settlement negotiations. See Sherman, supra note 7, at 697 (describing use of bellwether cases "to provide information as to the dollar value of various kinds of injuries and damages in product liability, pharmaceutical, and environmental litigation").
106. See generally MANUAL FOR COMPLEX LITIGATION (FOURTH) § 22.315 (2004) (describing procedure for trying bellwether cases in mass tort litigation).
107. See FRIEDENTHAL ET AL., supra note 4, § 14.14 (describing when nonparties may assert collateral estoppel). Most courts, including the federal courts, have abolished the mutuality doctrine that restricted issue preclusion to parties actually joined in the earlier case. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979) (holding that federal courts may apply offensive nonmutual collateral estoppel). Thus, unrelated plaintiffs may use a previous plaintiff's win on a key issue against a common defendant. See generally Laura Gaston Dooley, The Cult of Finality: Rethinking Collateral Estoppel in the Postmodern Age, 31 VAL. U. L. REV. 43, 60-61 (1996) (explaining use of offensive non-mutual collateral estoppel by new party pursuing claim against repeat player who has lost previous case to someone else).
108. For example, if the defendant does business on a national scale, a large punitive damage award may affect its employees and shareholders scattered around the country. A punitive damage award may also indirectly affect other potential plaintiffs who have similar claims if later courts subscribe to a "limited generosity" or "punitive overkill" theory and deny punitive damage awards against a defendant who has already been "punished" in a previous civil case. See Nancy J. King, Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties, 144 U. PA. L. REV. 101, 112-13 & n.31, 125-26 (1995) (explaining courts' reaction to punitive overkill theory and proposing analysis to synthesize constitutional limits on excessive punishments). Moreover, in the last Term, the Supreme Court held that a state court's imposition of punitive damages for harm to people outside the purview of the litigation violates due process, noting that allowing such damages in effect imposes local policy on the rest of the country. Philip Morris USA v. Williams, 127 S. Ct. 1057, 1064 (2007).
109. See Parklane, 439 U.S. at 326 ("Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.").
110. FRIEDENTHAL ET AL., supra note 4, § 14.14, at 725.
111. Dooley, supra note 101, at 61.
112. See Parklane, 439 U.S. at 330 (noting that factors include assessing if current plaintiff exercised "wait and see" strategy or if defendant won issue in previous litigation).
113. See Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 345 (5th Cir. 1982) (holding that collateral estoppel was inappropriate when issue, stated at high level of specificity, could not possibly repeat from case to case).
114. Jack Faucett Assocs., Inc. v. AT&T Co., 744 F.2d 118 (D.C. Cir. 1984) (finding no collateral estoppel based on jury verdict rendered after evidence had been improperly excluded at trial, even though Second Circuit had held error nonreversible).
115. See Philip Morris USA v. Williams, 127 S. Ct. 1057, 1064 (2007) (warning of "risk that punitive damages awards can, in practice, impose one State's (or one jury's) policies . . . upon other states").
116. In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1300 (7th Cir. 1995) ("One jury, consisting of six persons . . . , will hold the fate of an industry in the palm of its hand."). In a later economic analysis of evidence rules, Judge Posner defends the jury and the adversary system against charges that it is inherently inferior to inquisitorial systems, noting that though jurors may be "more subject to cognitive illusions and emotionalism than a professional judge who has 'seen it all before,'" the adversarial system creates greater incentives to search for relevant evidence, and juries offer a collective wisdom. Richard A. Posner, An Economic Approach to the Law of Evidence, 51 STAN. L. REV. 1477, 1487-97 (1999). Judge Posner suggests several reforms that he believes would produce more accurate factfinding; interestingly, one suggestion is to restore the size of the jury to its traditional twelve members. Id. at 1497-99. For a discussion of the optimal size for a national jury, see infra Part III.B.
117. See supra note 57 (describing how, in passing CAFA, Congress's motivating concern was that state and local courts were "making judgments that impose their view of the law on other states").
118. Dooley, supra note 1, at 329-30 (describing Americans' "love-hate" relationship with civil jury).
119. These absent parties could not, as a matter of due process, be bound. See Hansberry v. Lee, 311 U.S. 32, 40 (1940) ("It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process."). But they could use the verdict both for settlement negotiation and collateral estoppel, if necessary. Moreover, under proposals advocated by the American Law Institute, absent parties might be bound if certain criteria are met. See generally COMPLEX LITIGATION, supra note 84, § 5.05, at 275-303.
120. See, e.g., Paul Mogin, Why Judges, Not Juries, Should Set Punitive Damages, 65 U. CHI. L. REV. 179, 210-12 (1998) (arguing that judges are superior decisionmakers on punitive damages, in part because judges "are in a better position to impose a punishment that is in line with the punishments imposed for similar misconduct").
121. This sort of concern was a motivating factor in the Seventh Circuit's decisions in both the Firestone and Rhone-Poulenc cases to decertify classes that had been approved by federal district judges. See In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 288 F.3d 1012, 1020 (7th Cir. 2002) (Easterbrook, J.) ("[O]nly 'a decentralized process of multiple trials, involving different juries, and different standards of liability, in different jurisdictions' will yield the information needed for accurate evaluation of mass tort claims." (citation omitted) (quoting Rhone-Poulenc, 51 F.3d at 1299)). Thus, Judge Easterbrook condemns the "central planning model" of the ALI Complex Litigation Project and extols a "market model." Id. But if the clear goal of the recent legislative and policy reform efforts in complex litigation is aggregate resolution of disputes whenever possible, then the use of a larger, national jury would produce better and more legitimate outcomes on issues of both liability and valuation of damages.
122. This type of bifurcation has been around for a long time and is less controversial than the more recent innovation of plucking out particular issues (like causation) for separate trial. See Sherman, supra note 7, at 702 ("The most common form of bifurcation that goes back many years is between liability and damages.").
123. Sampling in mass tort cases is the use of statistical methods to decide a large number of similar cases by the trial of randomly selected test cases. See Robert G. Bone, Statistical Adjudication: Rights, Justice, and Utility in a World of Process Scarcity, 46 VAND. L. REV. 561, 563 (1993) (describing how, after adjudicating each sample case, court "statistically combines the sample outcomes to yield results for all cases in the larger population"). Sampling techniques have been tried in asbestos litigation, for example.
124. See David Friedman, More Justice for Less Money, 39 J.L. & ECON. 211, 212-14 (1996) (describing Judge Parker's use of sampling techniques in asbestos cases). Professors Saks and Blanck note that "[e]very verdict is itself merely a sample from the large population of potential verdicts" so that multiple trials are necessary to reach an accurate mean verdict.
125. Michael J. Saks & Peter David Blanck, Justice Improved: The Unrecognized Benefits of Aggregation and Sampling in the Trial of Mass Torts, 44 STAN. L. REV. 815, 833-34 (1992). They suggest that the use of multiple juries best avoids the risk of exporting error, and that cases should be randomly assigned to avoid potential bias in juries hearing multiple cases. Id. at 848-49. Saks and Blanck further contend that "[i]n principle, we could determine the optimal number of juries," but that "[i]n the absence of such data, the safest way to avoid this risk is to use as many juries as practicable." Id. at 848. But drawing juries used in sampled mass tort cases from geographically diverse pools might produce greater reliability with less inefficiency than the strategy of using "as many juries as practicable," id., particularly if the national jury pool follows a grand jury model with a larger size than the typical petit civil jury. Different subgroups could be summoned to hear a series of cases from which a mean verdict could be calculated. Besides the reliability gains, such a plan would produce verdicts enjoying greater legitimacy and would remove the incentive to forum-shop for a favorable jury pool for the all-important sample trial.
126. See In re Chevron U.S.A., Inc., 109 F.3d 1016, 1019 (5th Cir. 1997) ("[T]he results of such trials can be beneficial for litigants who desire to settle such claims by providing information on the value of the cases as reflected by the jury verdicts.").
127. Id. at 1019-20. Interestingly, Judge Robert M. Parker, the circuit judge who authored the Chevron opinion, was well known as a federal trial judge for using innovative techniques, including sampling, to clear the huge asbestos docket in his district. See Cimino v. Raymark Indus., 751 F. Supp. 649, 664-65 (E.D. Tex. 1990) (Parker, C.J.) (approving use of sample damage verdicts to calculate damages to other class members), rev'd, 151 F.3d 297, 321 (5th Cir. 1998); see also Friedman, supra note 117, at 212-14 (discussing Judge Parker's use of sampling techniques in asbestos cases).
128. Chevron, 109 F.3d at 1021.
129. See, e.g., In re Japanese Elec. Prods. Antitrust Litig., 631 F.2d 1069, 1084 (3d Cir. 1980) ("[D]ue process precludes trial by jury when a jury is unable to [resolve complex disputed issues] with a reasonable understanding of the evidence and the legal rules."). Chief Justice Burger was famously willing to consider abolishing the civil jury: I do not, for example, think it subversive to ask why England, the source of all our legal institutions, found it prudent and helpful 40 years ago to abandon jury trials for most civil cases. A whole range of important kinds of civil cases have been tried without juries since the beginning of the republic. If, as some American lawyers ardently advocate, it is sound to consider adopting British concepts of pretrial disclosure of all prosecution evidence in criminal cases, I hardly think we endanger the republic if we also make thoughtful inquiries into England's civil procedures, and their ideas of finality of judgments, short of three or four appeals and retrials. Warren E. Burger, Chief Justice of the U.S., Agenda for 2000 A.D. - A Need for Systematic Anticipation, Keynote Address at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (Apr. 7, 1976), in 70 F.R.D. 83, 89-90 (1976).
130. See Dooley, supra note 1, at 333-34 (describing waning power of civil jury during twentieth century).
131. U.S. CONST. amend. VII ("[T]he right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.").
132. Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. DAVIS L. REV. 1169, 1176 (1995) [hereinafter Amar, Reinventing Juries];
133. see also Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1190 (1991) ("If we seek a paradigmatic image underlying the Bill of Rights, we cannot go far wrong in picking the jury.").
134. Amar, Reinventing Juries, supra note 124, at 1177. Professor Amar notes that Alexis de Tocqueville, the famous French chronicler of American democracy in the early half of the nineteenth century, found participation on civil juries to be even more important than participation on criminal juries. Id. at 1191.
135. Ross v. Bernhard, 396 U.S. 531, 538 n.10 (1970). The Court listed factors to consider in determining whether the Seventh Amendment requires a jury trial in a particular case: "first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries." Id.
136. In re Japanese Elec. Prods. Antitrust Litig., 631 F.2d 1069, 1084 (3d Cir. 1980). The Third Circuit reached the following conclusion: [W]e find the most reasonable accommodation between the requirements of the fifth and seventh amendments to be a denial of jury trial when a jury will not be able to perform its task of rational decisionmaking with a reasonable understanding of the evidence and the relevant legal standards. In lawsuits of this complexity, the interests protected by this procedural rule of due process carry greater weight than the interests served by the constitutional guarantee of jury trial. Consequently, we shall not read the seventh amendment to guarantee the right to jury trial in these suits. Id. at 1086. The Ninth Circuit reached the opposite conclusion in In re U.S. Financial Securities Litigation, 609 F.2d 411, 432 (9th Cir. 1979).
137. See, e.g., Morris S. Arnold, A Historical Inquiry into the Right to Trial by Jury in Complex Civil Litigation, 128 U. PA. L. REV. 829, 848 (1980) (surveying available sources and finding no historical support for "complexity exception" to jury trial right);
138. Morris S. Arnold, A Modest Replication to a Lengthy Discourse, 128 U. PA. L. REV. 986, 987 (1980) (arguing that colonial Americans trusted juries and would not have allowed exception);
139. James S. Campbell & Nicholas Le Poidevin, Complex Cases and Jury Trials: A Reply to Professor Arnold, 128 U. PA. L. REV. 965, 966-67 (1980) (disputing Professor Arnold's historical analysis);
140. Steven I. Friedland, The Competency and Responsibility of Jurors in Deciding Cases, 85 Nw. U. L. REV. 190, 203-04, 205-20 (1990) (criticizing result in Japanese Electronic Products and advocating "more active jury model");
141. Richard O. Lempert, Civil Juries and Complex Cases: Let's Not Rush to Judgment, 80 MICH. L. REV. 68, 68-72 (1981) (arguing that Supreme Court should not resolve issue presented in Japanese Electronic Products without empirical data about jurors' decisionmaking ability);
142. Frank M. Loo, A Rationale for an Exception to the Seventh Amendment Right to a Jury Trial: In re Japanese Electronics Products Antitrust Litigation, 30 CLEV. ST. L. REV. 647, 664-65 (1981) (approving test adopted by Japanese Electronics Products court).
143. In other later cases involving the right to jury trial, the Court has focused only on the Ross factors of custom and remedy. E.g., Tull v. United States, 481 U.S. 412, 417-18 & n.4 (1987) (listing with approval custom and remedy factors and noting that "practical limitations" factor has never provided "independent basis for extending the right to a jury trial"). And in Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), a patent infringement case, the Court assigned to the judge the task of construing the scope of the patent even though a jury trial right exists, on the ground that judicial "training and discipline" made the judge better qualified for the task. Id. at 388-89. The Court noted that its decision was possible only because it could find no clear historical answer as to whether this issue was one for the jury, thus indicating that history is still the predominant test. Id. at 384.
144. See, e.g., Franklin Strier, The Educated Jury: A Proposal for Complex Litigation, 47 DEPAUL L. REV. 49, 59-61 (1997) (arguing for at least some college-educated jurors in complex civil cases);
145. Rita Sutton, Comment, A More Rational Approach to Complex Civil Litigation in the Federal Courts: The Special Jury, 1990 U. CHI. LEGAL F. 575, 595-99 (proposing four models for special juries).
146. Professor Oldham explains that the "special jury" had three different iterations during the seventeenth century: a jury of higher-class individuals, a jury of persons with special expertise in the subject of litigation, and a jury "struck" from a very large venire. James C. Oldham, The Origins of the Special Jury, 50 U. CHI. L. REV. 137, 139 (1983). After 1730, the third iteration became synonymous with the term "special jury." Id. at 140. That was the year that the "special jury" became a right recognized by statute in England; it was commonly used throughout the second half of the eighteenth century.
147. Alan Feigenbaum, Note, Special Juries: Deterring Spurious Medical Malpractice Litigation in State Courts, 24 CARDOZO L. REV. 1361, 1398 (2003). England officially abolished the special jury in 1949. Id.
148. Feigenbaum, supra note 131, at 1399.
149. See DEL. CODE ANN. tit. 10, § 4506 (1999) ("The Court may [in its discretion] order a special jury upon the application of any party in a complex civil case.").
150. Moore v. New York, 333 U.S. 565, 569 (1948); Fay v. New York, 332 U.S. 261, 296 (1947).
151. U.S. CONST. amend. VI.
152. See Mark A. Nordenberg & William V. Luneberg, Decisionmaking in Complex Federal Civil Cases: Two Alternatives to the Traditional Jury, 65 JUDICATURE 420, 424 (1982) ("[The Court's] relative silence with respect to civil actions may suggest that there is no constitutional cross section requirement in federal civil cases and that Congress is free to modify civil jury selection as it sees fit."); Feigenbaum, supra note 131, at 1406 ("[T]he Supreme Court has not had occasion to address the fair cross-section requirement in civil cases.").
153. E.g., Colgrove v. Battin, 413 U.S. 149, 160 n.16 (1973) ("[W]hat is required for a 'jury' is a number large enough to facilitate group deliberation combined with a likelihood of obtaining a representative cross section of the community."); Thiel v. S. Pac. Co., 328 U.S. 217, 220 (1946) ("The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community.").
154. Apodaca v. Oregon, 406 U.S. 404, 413 (1972).
155. Taylor v. Louisiana, 419 U.S. 522, 538 (1975).
156. Id. (holding that Sixth and Fourteenth Amendments do not require that petit juries, once chosen, actually "mirror the community"); see also Thiel, 328 U.S. at 220 (noting that Sixth Amendment does not require that individual jury "contain representatives of all the economic, social, religious, racial, political and geographical groups of the community").
157. In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1300 (7th Cir. 1995).
158. Id. Admittedly, the national jury idea is more in sync with a "central planning" model of litigation than with a "market" model. See supra note 115 (contrasting ALI's emphasis on aggregation with Judge Easterbrook's preference for decentralization). But given the clear trend toward aggregate resolution of disputes - the dominance of the "central planning" model - the larger, more diverse national jury would avoid the provincialism of local juries and would facilitate citizen participation.
159. Judge Posner noted that the typical federal civil jury consists of only six jurors and two alternates. Rhone-Poulenc, 51 F.3d at 1300. He later suggested increasing the size of federal juries to the traditional twelve to "obtain greater diversity of experience." Posner, supra note 110, at 1498. As I explain in Part III, for a national jury to fulfill the promise of representing a cross-section of a nationally-defined community, it would likely have to be even larger in size. See infra text accompanying notes 166-71.
160. Other forum-shopping incentives may remain, particularly with regard to choice of law, but a primary impetus for choosing a particular forum would be removed.
161. See supra notes 58-60 and accompanying text (describing policies motivating CAFA's passage).
162. This could be an advantage in criminal cases, which require us to recognize local community norms that might legitimately vary from place to place. The federalization of criminal prosecution, with its concomitant enlargement of the jury pool, diminishes the role of local norms, to the detriment of the criminal justice system. See Dooley, supra note 18, at 103-04 (discussing importance of local values in criminal law and jury service). But in civil cases of national scope, we should avoid the prospect of national policy held hostage to local norms.
163. Cf. infra notes 164-65 and accompanying text (summarizing debate on how to increase minority representation in jury venires).
164. Taylor v. Louisiana, 419 U.S. 522, 530-31 (1975).
165. See Laura J. Hines, The Dangerous Allure of the Issue Class Action, 79 IND. L.J. 567, 597-601 (2004) (describing issue classes and questioning their legitimacy).
166. See generally Steven S. Gensler, Bifurcation Unbound, 75 WASH. L. REV. 705 (2000) (describing issue bifurcation and recommending its use to promote efficiency in complex litigation).
167. See, e.g., Castano v. Am. Tobacco Co., 84 F.3d 734, 751 (5th Cir. 1996) (refusing to certify national class of smokers due to "risk that in apportioning fault, the second jury could reevaluate the defendant's fault . . . [and thereby] impermissibly reconsider[ ] the findings of a first jury"); see also Woolley, supra note 95, at 519-20 (describing Fifth Circuit's analysis in Castano on reexamination problem); supra notes 93-96 and accompanying text (describing efforts by ALI to prescribe streamlining procedures in complex litigation without running afoul of reexamination clause).
168. See, e.g., Castano, 84 F.3d at 751 (denying class treatment because of this risk).
169. See supra note 141 and accompanying text.
170. See Posner, supra note 110, at 1493-94 (noting advantages of collective decision-making and "freshness" of juror perspectives).
171. In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1300 (7th Cir. 1995). Individual trials would have been feasible in the blood products case because each plaintiff could receive a judgment worth "millions," thus overcoming the transaction costs of litigation. Id.
172. Id.
173. Notions of state sovereignty are tied to territorial boundaries. See Pennoyer v. Neff, 95 U.S. 714, 722 (1877) ("[N]o State can exercise direct jurisdiction and authority over persons or property without its territory. . . . [N]o tribunal established by [the state] can extend its process beyond that territory . . . ."). Though the strict territorialism of Pennoyer has been relaxed somewhat to allow states to exercise personal jurisdiction over out-of-state defendants who have "minimum contacts" with that state, see Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945), there is no authority for the courts of one state to summon jurors from another.
174. 28 U.S.C. § 1861 (2000).
175. FED. R. CIV. P. 19.
176. FED. R. CIV. P. 14.
177. FED. R. CIV. P. 4(k)(1)(B).
178. See, e.g., 28 U.S.C. § 2361 (2000) (allowing nationwide service of process in federal statutory interpleader cases).
179. FED. R. CIV. P. 45(b)(2). Moreover, the ALI has proposed that courts handling complex litigation be given the power to issue subpoenas for attendance at a hearing or trial "at any place within the jurisdiction of the United States, or anywhere outside the United States if not otherwise prohibited by law." COMPLEX LITIGATION, supra note 84, app. A § 1785, at 445.
180. See Dooley, supra note 18, at 79 & n.1 (describing academic literature on fair cross-sections); see also id. at 83-87 (describing fair cross-section jurisprudence). The traditional method of using voter registration rolls to assemble venires exacerbates the problem; indeed, the Act explicitly commands that federal courts devise an alternate plan for generating names of prospective jurors when the voter lists disproportionately exclude minorities. 28 U.S.C. § 1863(b)(2) (2000). Professor Kim Forde-Mazrui has coined the term "jural districts" to describe subdivisions within judicial districts that could be drawn to capture "communities of interest" - a concept borrowed from the law of electoral districting - to address the underrepresentation problem. Kim Forde-Mazrui, Jural Districting: Selecting Impartial Juries Through Community Representation, 52 VAND. L. REV. 353, 389-95 (1999). Juries would then be assembled by drawing from each of the jural districts, thus assuring that each "community of interest" is represented in the jury pool. Id. at 389. As Professor Forde-Mazrui explains, this method would yield juries that are more diverse than under the current system - a value of particular importance in criminal cases. Id. at 390-91.
181. Congressional districts could comprise "jural districts" as described by Professor Forde-Mazrui. Id. at 389-95.
182. See Colgrove v. Battin, 413 U.S. 149, 150-51 (1973) (upholding local rule in Montana that provided for six-person juries in civil trials). Subsequently, the federal rules changed to authorize six-person juries. See FED. R. CIV. P. 48 ("A jury must initially have at least 6 and no more than 12 members, and each juror must participate in the verdict . . . . Unless the parties stipulate otherwise, the verdict must be unanimous and be returned by a jury of at least 6 members.").
183. Colgrove, 413 U.S. at 160 n.16.
184. Amar, Reinventing Juries, supra note 124, at 1188.
185. Id.
186. Id. at 1189 (noting that "grand juries typically have twenty-three members"). See generally 18 U.S.C. § 3321 (2000) (providing that grand juries shall have no fewer than sixteen members and no more than twenty-three); FED. R. CRIM. P. 6(a)(1) (same).
187. Amar, Reinventing Juries, supra note 124, at 1189.
188. See supra notes 130-33 and accompanying text (describing special jury and its past and present use in states).
189. See, e.g., Amar, Reinventing Juries, supra note 124, at 1191 ("Friends of unanimity argue that it promotes serious deliberation - everyone's vote is necessary, so everyone is seriously listened to.").
190. Id. at 1190.
191. See Shari Seidman Diamond et al., Revisiting the Unanimity Requirement: The Behavior of the Non-Unanimous Civil Jury, 100 Nw. U. L. REV. 201, 203 (2006) (noting that although federal courts still require unanimity of civil jury verdicts, only eighteen states do, while another three states allow nonunanimous verdicts after six hours of deliberation).
192. Cf. Amar, Reinventing Juries, supra note 124, at 1189-90 (discussing use of majority rule by grand juries and legislatures and use of supermajority rule by Senate in impeachment context). But see Diamond et al., supra note 175, at 230 (concluding that cost of unanimity is "overblown").
193. Amar, Reinventing Juries, supra note 124, at 1191 (proposing system by which "on Day 1, a jury must be unanimous to convict; on Day 2, 11-1 will suffice; on Day 3, 10-2, and so on, until we hit our bedrock limit of, say two-thirds (for conviction), or majority rule (for acquittal)").
194. Cf. Woolley, supra note 95, at 542 (arguing that judicious use of special verdicts and jury instructions can alleviate reexamination clause problems).
195. Cf. Sherman, supra note 7, at 705 ("Undoubtedly issues that are not sufficiently free-standing to warrant separate trial should not be the subject of bifurcation. But presumably a second jury would be instructed that it had to accept the first jury's findings.").
196. See FRIEDENTHAL ET AL., supra note 4, § 14.11, at 710 n.15 (noting that general verdicts "reveal only whether liability was found and, if so, for how much," while special verdicts "may include the information necessary to decide questions of issue preclusion").
197. See generally Marcy Strauss, Sequestration, 24 AM. J. CRIM. L. 63, 77 (1996) (explaining that purpose of sequestration is to shield jurors from prejudicial publicity, pressure of others, and threats by those wishing to influence verdict).
198. See id. at 77-116 (weighing costs and benefits of sequestration). Professor Strauss challenges the assumption that jurors are highly susceptible to outside influences and argues that we should trust jurors, as we do judges, to decide cases according to the evidence. Id. at 70.
199. Perhaps national jurors could be chosen, at least initially, on a volunteer basis. Juror questionnaires could be adapted to ascertain prospective jurors' amenability to serving at a distant location for particular lengths of time.
200. See, for example, the increasing use of video conferencing to manage complex litigation. Some courts have even experimented with video testimony and "virtual" presence of parties via video conferencing at trial. See, e.g., Edwards v. Logan, 38 F. Supp. 2d 463, 464 (W.D. Va. 1999) (permitting jury trial for prisoner's civil rights claim to be held through video conferencing). See generally Paul D. Carrington, Virtual Civil Litigation: A Visit to John Bunyan's Celestial City, 98 COLUM. L. REV. 1516, 1524-29 (1998) (discussing prospect of "virtual trials");
201. James L. McCrystal & Ann B. Maschari, Will Electronic Technology Take the Witness Stand?, 11 U. TOL. L. REV. 239, 250-51 (1980) (advocating use of video in trials as "a means of administering justice far superior to our present system").
202. Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 473 (5th Cir. 1986). Indeed, it would be interesting to see how the implementation of a national jury regime in mass litigation would affect settlement strategies. That is, if the possibility of jury trial becomes more pressing, and if the parties are unable to forum-shop into particular jury pools, then "bargaining in the shadow" of the jury trial once again becomes an important factor. Marc Galanter, The Regulatory Function of the Civil Jury, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 61, 62 (Robert E. Litan ed., 1993).
203. E.g., Colgrove v. Battin, 413 U.S. 149, 155-57 (1973).
204. Amar, Reinventing Juries, supra note 124, at 1193-94.