Civil jury nullification

Jury nullification occurs when jurors intentionally disregard the law in returning a verdict. The phenomenon has attracted a great deal of scholarly attention, though almost exclusively in connection with criminal trials. Indeed, some commentators have taken the position that civil juries cannot nullify. In contrast to verdicts Of acquittal, trial and appellate judges do have the power to intercede in civil cases, but in practice they may find it difficult to discern and correct instances of intentional jury departures from their instructions. Although it is hard to document cases of civil jury nullification, it is also not clear how often criminal juries engage in acts of nullification. The lack of evidence confirming the descriptive claim has not, however, discouraged scholars from evaluating the merits of criminal jury nullification. This Article canvasses the extensive debate over criminal jury nullification as a prelude to considering the possible arguments for and against its counterpart in civil litigation. Although a number of commentators have praised certain aspects of jury departures from the law in the latter context, the case in favor of civil jury nullification is much weaker than it is in the criminal arena. Concerns about protecting citizens against oppressive government action do not arise in lawsuits between private parties. Beneficiaries of nullification may applaud the jury's function in softening the application of seemingly harsh rules, but their adversaries will voice legitimate complaints that nullification sacrifices their due process fights. In addition, when a jury chooses to disregard laws adopted by legislatures or courts, it undemocratically usurps the lawmaking function lodged in those institutions. Thus, courts should more readily embrace tools such as special verdicts and bifurcation of trials in order to minimize the risks that civil juries will deviate from their instructions.