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In this article, Klein explores the reasons for the current dissatisfaction with the jury system and proposes that both new members of the jury box and a change in thought regarding the purpose of the jury system is responsible for the current criticism.  While many individuals state that the jury system is flawed, Klein unearths the reasons for such a perception.  Klein's theory is that as time has passed, more constituencies in society have gained access to power and found a voice in the political system (including non-landowners, minorities, and women).  This constituency theory states that as juries have become more diverse, the probability that the outcome will not be favorable to a particular constituency increases.  Thus, those that want to minimize the effect of another group will urge jury reform.
      Klein surveys history to determine if a correlation exists between diversity and jury dissatisfaction.  During the late eighteenth and early nineteenth century, only white male landowners has a voice in public politics and only they could be jurors.  Perception of the benefits of jury system was also at its greatest height, and juries were seen not as a means to protect the civil rights of the plaintiffs, but as a political right of the jurors.  Juries guaranteed that citizens could take part in making laws, and provided a check for the authority of judges.  Juries provided protection from a power-driven or dishonest government.  Thus, during this time there was no diversity in the jury, and the only members of society with voices in the political arena were in the jury box.  As the constituency theory claims, this lack of diversity was linked with powerful juries.
      Changes occurred during the late nineteenth and early twentieth century to expand the diversity of the jury pool, and with it came the first complaints about the functioning of the jury system.  African-Americans and women became eligible to serve on juries, and the population became more diverse.  (Klein notes that juries were still not as diverse as today since jurors were chosen by public officials and not by random.)  However, achieving a diverse jury required extending the Fourteenth Amendment to jury rights.  For that to happen, a fundamental shift had to occur, and jury rights were no longer seen as a political right of the juror, but as one of the civil rights of the litigant.  Klein notes that ironically, this change became the core of the argument to restrict the power of the jury.  The jury was now seen as a fact-finders who needed to follow the legal instructions of the court rather as a means to restrict the tyranny of the court.  During this time period, complaints began that jury could not handle complex cases, and pressure for limiting the discretion of the jury began (i.e. special verdicts, judgments nov, summary judgments).  Thus, under Klein's constituency theory, as diversity in the jury increased, the power of the jury declined.
      In the late twentieth century, more dramatic changes occurred in the composition of the jury.  Jurors were selected at random, and peremptory strikes could not be made on the basis of race.  Other voices became more powerful in the political system as a result of the Civil Rights movement, the Women's movement, and the Gay Rights movement.  However, along with this increase of diversity, more criticism of the jury system has occurred.  Klein notes that there is little discussion about the populist visions of juries, and more people are calling for the eradication of the jury system.  With increasing different constituencies creating juries, current dissatisfaction exists because the verdicts are not (and cannot be) representative of all the different constituencies.  The public looking for the right result that they desire are quick to blame the members of the juries.  A number of proposal for jury reform has entered into dialogue including: special verdict, fact-finding by judges, reduction of the number of jurors, elimination of peremptory strikes, lawyer-conducted voir dire, elimination of unanimous verdicts, and capping damage amounts.  Klein explores empirical evidence to state that juries are better at answering factual issues, perform as well as judges in questions of fact and law, and although juries have been shown to be less able to solve purely legal questions, this problem may be solved through better jury instructions.  All of the proposed reforms change the power and voice of a diverse jury.  Klein concludes by stating that although many feel changes are needed to counteract an ineffective jury, first we must analyze why such a perception exists.  Changes in the composition of juries and the goals of the jury system should be considered before any reforms are implemented.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999