Civil jury nullification

Jury nullification occurs when jurors intentionally disregard the law in re turning a verdict. The phenomenon has attracted a great deal of scholarly a ttention, though almost exclusively in connection with criminal trials. Ind eed, some commentators have taken the position that civil juries cannot nul lify. In contrast to verdicts Of acquittal, trial and appellate judges do h ave 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 jur y nullification, it is also not clear how often criminal juries engage in a cts of nullification. The lack of evidence confirming the descriptive claim has not, however, discouraged scholars from evaluating the merits of crimi nal jury nullification. This Article canvasses the extensive debate over criminal jury nullificatio n as a prelude to considering the possible arguments for and against its co unterpart in civil litigation. Although a number of commentators have prais ed certain aspects of jury departures from the law in the latter context, t he case in favor of civil jury nullification is much weaker than it is in t he criminal arena. Concerns about protecting citizens against oppressive go vernment action do not arise in lawsuits between private parties. Beneficia ries of nullification may applaud the jury's function in softening the appl ication of seemingly harsh rules, but their adversaries will voice legitima te complaints that nullification sacrifices their due process fights. In ad dition, when a jury chooses to disregard laws adopted by legislatures or co urts, it undemocratically usurps the lawmaking function lodged in those ins titutions. Thus, courts should more readily embrace tools such as special v erdicts and bifurcation of trials in order to minimize the risks that civil juries will deviate from their instructions.