The Open and Obvious Doctrine: Tort Law as the New Frontier for Revitalizing the Jury

Author: Priya Vaishampayan

The United States is experiencing a breakdown in democracy. Donald Trump has begun his second term as President of the United States, defeating Vice President Kamala Harris despite an unprecedented criminal record. Although Harris invigorated many progressive voters, many voters had their reservations about the candidate, such as the Uncommitted Movement who criticized Harris’s position on a ceasefire in the war between Israel and Hamas, and an incident involving a Palestinian speaker at the Democratic National Convention. College campuses have also been the center of discord. Police have arrested more than 2,400 students engaged in protests on more than 50 college campuses across the country. In recent weeks, the Trump Administration has begun revoking the green cards and visas of such students and initiating deportation procedures. Public faith in the government has been trending down before the first 100 days of the new administration, with surveys showing a lack of trust in all three branches of the federal government to do the right thing.

Our civil jury system has also been in sharp decline. Prior to the pandemic, only 0.5% of civil cases proceeded to trial in federal court and less than 1% went to trial in state courts. This stands in stark contrast to the 5.5% standard in the mid-1900s. Thanks to a combination of settlement and pretrial procedures, our legal system has incentivized parties to avoid trial. Although less trials make for a more efficient legal system, it also means that the public plays little to no role in case outcomes.

In this note, I will focus on the decline of our civil jury system as a critical issue. Fewer trials inevitably take away the role of people in shaping the law. And this may produce laws that are less democratic or detached from specific community interests. Ultimately, I will explore how our breakdown in democracy can be traced to the decline of our civil jury system.
On the other end, I will examine how our country can revitalize the jury as a democratic institution. I will look to various sources—tort law, sociology, and political philosophy—to reimagine a legal system that can better center community and people. Read More.