ABSTRACT
The American civil jury is on trial. It has been charged with being biased in favor of the plaintiff, subject to emotion rather than reason, inaccurate in its understanding of law, and wildly unpredictable. Evidence of jury bias, in the form of the anecdote, is found regularly on the pages of the Wall Street Journal and in the popular press [see e.g., Adler (1994)]. Anecdotes, however, almost invariably focus attention on the atypical rather than the typical, and are thus misleading.1 Furthermore, anecdotes, even if accurate, miss the point if judges would have made the same decisions in the same circumstances. Realistic reform requires that we compare alternative institutions, all of which may be imperfect. If judges and juries decide cases similarly, then the charges leveled against the jury are moot since the judge is the primary alternative decision maker. Only if judges decide cases differently do restrictions on civil juries have any hope of achieving their aims. It is therefore important to bring the available evidence to bear on this fundamental question; do trial judges reach systematically different decisions than juries?
