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The American Civil Jury for Auslander (Foreigners)

Duke University School of Law
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  • Law
  • Law
  • Political Science


The American Civil Jury for Ausländer (Foreigners) 4(B)VIDMAR_FMT 09/10/03 4:13 PM 95 THE AMERICAN CIVIL JURY FOR AUSLÄNDER (FOREIGNERS) NEIL VIDMAR* I. INTRODUCTION In an important essay on comparative analysis of civil law, Her- bert Bernstein drew attention to the risks of an author misunder- standing procedural law when he or she lacked a fundamental, sys- tem-neutral conceptual framework of a country and lacked first-hand experience with the various laws of that country.1 Herbert and I occa- sionally talked about this problem of misunderstanding regarding the American civil jury. In this special issue devoted to the memory of Professor Bernstein, Paul Carrington has placed the American civil jury into its political context.2 This Article complements Professor Carrington’s Article by addressing the empirical issues related to the actual performance of the American civil jury and the constraints that the legal system has developed to correct occasional errant decisions by lay adjudicators. Legal practitioners and scholars whom I encounter in my travels outside the borders of the United States frequently challenge me to explain the “crazy,” “outrageous” system by which we allow groups of untutored lay persons to decide civil disputes.3 Invariably, they bring up the recent McDonald’s case4 in which a civil jury in New Mexico awarded a woman $160,000 in compensatory damages and $2.7 million in punitive damages just because she spilled coffee on Copyright © 2003 by Neil Vidmar. * Russell M. Robinson II Professor of Law, Duke University. 1. Herbert Bernstein, Whose Advantage After All? A Comment on the Comparison of Civil Justice Systems, 21 U.C. DAVIS L. REV. 587, 587-88 (1988). 2. Paul D. Carrington, The Civil Jury and American Democracy, 13 DUKE J. COMP. & INT’L L. 79 (Special Issue 2003). 3. For a very recent example, see Kevin Sinclair, Fat Chance of Justice for the Real Victims of Scandals, S. CHINA MORNING POST, July 31, 2002, at 15 (reporting inaccurately t

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