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Donald G. Gifford & Brian M. Jones, "Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law," __ Wash. & Lee L. Rev. __ (forthcoming 2016), available at SSRN.

What do Alabama, Maryland, North Carolina, Virginia, and Washington D.C. have in common? Answer: They all apply the doctrine of contributory negligence to tort cases. Indeed, they are the last five contributory negligence outposts; the rest of the United States has long since moved on to comparative fault regimes of one form or another.

They are, moreover, all located in the South. And according to Donald Gifford and Brian Jones, this is no coincidence.

In their provocative article, Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law, Gifford and Jones argue that certain states cling to contributory negligence and other “anti-plaintiff” tort doctrines to prevent cases from being decided by juries. The most worrisome aspect of their thesis is that this concerted effort to insulate cases from juries is most pronounced in Southern states whose major urban centers include significant African-American populations.

The article’s novel contribution to the literature is its distinct focus on the role of substantive tort law, as opposed to procedural issues like jury selection or political questions like judicial elections, in keeping cases from juries and ensuring that cases are decided (translation: dismissed) by judges. In addition to the doctrine of contributory negligence, the authors, having consulted with twelve tort law “experts” (judges, plaintiffs’ lawyers, and defendants’ lawyers), identify the following doctrines and standards as the most formidable barriers to jury access: laws that limit or block a property owner’s or landlord’s potential exposure in premises liability cases (such as laws immunizing property owners from anyone other than invitees), laws limiting the liability of charitable institutions (including hospitals), and standards governing the admissibility of expert testimony. Each of these rules facilitates pretrial dismissal as a matter of law on motions for summary judgment, or during trial but before submission to the jury, on motions for a directed verdict.

The authors devised an empirical test to measure how their dependent variable—a construct they term a particular state’s “jury access denial index,” or JADI (a weighted average, based upon their designated tort experts’ view of the relative significance of each of the five restrictive tort doctrines)—is affected by the following independent variables: a high degree of income inequality in the state’s largest cities, high percentages of African-Americans in a state’s largest cities, a state’s history as part of the traditional, slaveholding South, and a state’s political ideology. Their sample includes seventeen states, eight of which are part of the “traditional South,” including four of the contributory negligence stalwarts.

The authors’ powerful conclusion is that: “Even in the twenty-first century, supreme courts in a number of states with substantial percentages of African Americans in their largest cities, particularly those in the South, continue to follow outmoded doctrines of tort law that make it more difficult for personal injury plaintiffs to have their cases decided by juries.” (p. 41.)  A surprising outcome of their test is that a state’s political leanings have little to no effect on a state’s JADI (and, as they most unexpectedly determined, if anything, states with liberal leanings actually had a higher JADI).  They accordingly conclude that “it is race and region of the country, not political ideology that primarily affect a state’s JADI.” (p. 41.)

A key prong of the authors’ thesis is that the drive to prevent jury decision making where those juries are most likely to be comprised of African Americans is the unshakeable perception that such juries will rule in a plaintiff’s favor. In a section that deftly weaves together history, literature, and some colorful quotes from contemporary practitioners, the authors show that it is generally assumed that such jurors will rule against a defendant out of empathy for a plaintiff who, like themselves, has been harmed, marginalized or, in the words of one trial lawyer, “hammered all their lives” (p. 16.)

But according to certain scholars, the perception is false. Issa Kohler-Hausmann, a law and sociology scholar, has determined that “there is no statistically significant correlation between the chance of prevailing on the liability issue and any of the following three variables: the income inequality of the local population from which the jury is drawn, the percentage of the population living below the poverty line, and the percentage of persons of color.” (p. 19.) The authors cite work by Eric Helland and Alexander Tabarrok showing that “race and poverty [do] act . . . to increase the size of jury awards,” but do not affect “plaintiff success rates” in a statistically significant way. The authors do not try to explain why the disconnect between perception and actual impact persists. And, in any case, the truth or falsity of the perception is ultimately, for these authors’ purposes, beside the point:

Our objective is not to choose sides in this debate, mostly between judges and practitioners on one side and scholars on the other, as to whether the racial or socioeconomic characteristics of the juror population affected trial outcomes. Instead, our hypothesis is that the perceptions of judges and legislators that juries with higher percentages of African-American or low-income jurors in a state’s largest cities will lead them to continue to follow traditional tort doctrines that keep plaintiffs from reaching juries. (p. 20.)

The authors readily recognize the unlikelihood of obtaining direct proof in support of their thesis (“[J]ustices are not going to admit that they continue to follow doctrines in order to keep juries with substantial numbers of African-American or low-income jurors from deciding personal injury cases”), and, accordingly, they explain that they can only prove “strong correlations between a state’s substantive law that makes it difficult for personal injury plaintiffs to have their cases decided by the jury and the factors of race and being a part of the South.” (p. 41)  Their presentation of these correlations is masterful, and one in particular stands out: their description of certain states’ failure to adopt more liberal liability regimes viewed against the legal historical backdrop of jury selection.

The authors detail our country’s distressing history of measures, particularly “harsh, widespread and sustained” in the South (p. 23), designed to keep African Americans from serving on juries. Southern states were savvy in trying to avoid the Supreme Court’s holding in Strauder v. West Virginia (1879) that a West Virginia statute barring African Americans for juries violated the Equal Protection Clause. They required, for instance, that African Americans’ names be printed on different color paper and thus were immediately identifiable when names were picked out of a pile. They devised mandatory character prerequisites for jurors to meet and that were readily “interpreted to exclude African Americans” (p. 23) such as the requirement to be of “good intelligence, fair character, and sound judgment.” (p. 23.) As these and other efforts were stricken by such cases as Norris v. Alabama (1935), states became more creative in devising other means of exclusion.   But when, in the wake of Batson v. Kentucky (1986), Powers v. Ohio (1991), and, most relevant, Edmonson v. Leesville Concrete Co. (1991) (holding that a party in civil litigation was entitled to a jury trial where his or her adversary had not excluded jurors on the basis of race), overt exclusion of potential jurors for race-based reasons became all but impossible, states’ rigid adherence to retrograde tort laws filled the bill:

Edmonson, of course, was decided after Southern courts disproportionately failed to follow those courts elsewhere in the country that had already [approximately from 1965-1985] adopted substantive principles governing tort cases that made it easier for plaintiffs to have their cases heard by the jury. After Edmonson opened the doors to substantially greater African-American participation on Southern juries, principles of outmoded substantive tort law became principal bulwarks to prevent personal injury plaintiffs from having their cases heard by the jury. (p. 25.)

The authors’ keen insight is to juxtapose and, in so doing, shine a bright light on the contrast between, this chronology of gradual enlightenment and inclusion with the legislative and jurisprudential stasis in those states that continue to adhere to anti-plaintiff regimes. In so doing, they make a persuasive case that the stubborn clinging to these restrictive rules is an end run around rules requiring that African Americans be put on juries in the first place.

The authors should be commended for this article and the deep thinking (and, perhaps, the legislative or policy changes) it should prompt. The authors do, in fact, hope to effect policy changes. Indeed, Giffordspolicy-driven agenda rounds out this piece in an important way; standing alone, the article’s empirical study only goes so far in pointing out troubling correlations, and, as they acknowledge, does not reveal that the states in their empirical study have retained the tort doctrines at issue because they seek to keep cases from being decided by African-American jurors.  If anything, the article left me wanting to know more about what they had addressed. For instance, the authors could have clarified whether the “anti-plaintiff” legal rules at issue in their study were statutory or instead common law principles. This, in turn, would clarify if it is legislators or judges who are primarily responsible for perpetuating them. Moreover, to the extent that any of the rules at issue are statutory, the article would benefit from a discussion of any relevant legislative history or, more generally, contemporaneous lobbying or debates (either within the legislature or society at large) about the prospect of adopting a comparative fault regime, or laws abrogating premises liability immunities and the like. I would also have liked to know more about the judges in the state courts under scrutiny. The authors portray these judges as uniformly beholden to white, moneyed, establishment interests, but I wondered if there were any exceptions and, if so, how those exceptions bore on the issues under study. At a minimum, it would be good to know the percentage of African-American judges and state legislators at the relevant time of adoption of a so-called anti-plaintiff tort doctrine by common law or statute, respectively. Lastly, I wondered whether the authors, in the course of researching and writing this article, encountered any states that bore characteristics of those with a high JADI (e.g., large African-American populations in their major cities), yet had abrogated contributory negligence and, if so, how the authors might explain why such a state nonetheless plotted a different course.

Might it be that state-by-state variation with respect to various tort reform measures, such as caps on damages, or overall jury trial rates in tort cases could be explained, in part, by Gifford and Jones’ provocative thesis? They should be thanked for unlocking so many doors for future study.

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Cite as: Catherine Sharkey, Stealth Ways to Keep Tort Cases from African-American Juries, JOTWELL (January 27, 2016) (reviewing Donald G. Gifford & Brian M. Jones, "Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law," __ Wash. & Lee L. Rev. __ (forthcoming 2016), available at SSRN),