Forum Summary: Public Participation in Legal Decision Making

Written by Valerie P. Hans

Juries and lay judges are longstanding features of many common law and civil law legal systems. In recent years, however, we have seen both the introduction of new systems of lay participation in some countries and the restriction or elimination of existing systems in others. The Meridian 180 forum on Public Participation in Legal Decision Making examined the phenomenon of lay participation in law, and the causes and consequences of its rise and fall around the world.

Background
In the 1990s, Russia introduced a new jury system during the glasnost period, and Spain followed with its new jury trial after the death of the dictator Francisco Franco. Over the last decade or so, Japan, South Korea, and Argentina have initiated new systems of lay participation in their legal systems. China has reportedly renewed its commitment to public participation in legal cases as well. Considering the dominance of legal professionals in legal systems worldwide, these are fascinating developments.

At the same time, in other countries, the proportion of cases decided by members of the public has declined substantially. In the United States, for example, the percentage of civil and criminal cases decided by juries has declined so dramatically that commentators have warned about the “vanishing trial.” They caution about what will be lost when virtually all legal cases are resolved not in public trials, but rather in private settlements and plea bargains.

Some countries with long-standing systems of public participation in law are reducing their scope (England and Wales), eliminating them (Switzerland), or modifying them (Belgium). And some scholars claim that the Russian jury system, adopted with considerable fanfare as a democratizing institution, has been undermined so significantly that it can no longer serve its intended purposes.

Discussion
During the course of the forum, participants from a range of countries discussed these conflicting trends. Participants debated the political, legal, and cultural factors that explained the fact that different countries are moving in opposite directions. Forum participants also discussed the impact of lay participation—that is, what difference it makes to a legal system to either increase, decrease, or even eliminate public voices in decision-making.

Several commentators contributed the important insight that declines in jury trials are just one part of a broader phenomenon of declines in public trials more generally. In many venues, the publicly accessible resolutions of disputes in trials have been increasingly replaced by private methods such as plea bargaining, arbitration, and negotiated settlements. These private methods might be quicker and offer more control by at least one of the parties involved in the dispute, but several participants warned that as public trials become increasingly rare, we are at risk of losing transparency and government accountability.

Among other reasons that lay participation might wax and wane: elite endorsement by legal professionals appears to be of importance. Participants from several countries indicated that legal professionals must be generally supportive of their lay citizen counterparts for the system to work well. To be sure, it is ironic that the strength of a system of public participation depends on legal professionals’ support. Of course, the public—those who are called to participate as legal decision makers—must be supportive as well.

Impact
Several participants drew attention to the challenge of measuring the effects of lay participation because of the tremendous diversity of lay-participation systems. That said, research from many countries shows some consistent effects of public participation in decision-making.

There is substantial overlap in the decisions made by lay and professional factfinders. The overlap appears to be higher in mixed courts, which allow more interaction between professional judges and lay judges during the deliberation process. (By comparison, traditional jury systems tend to require juries to deliberate separately from the judge.) There are some exceptions to this, such as South Korea’s advisory jury system, which allows the judge to join the jury deliberation under specific circumstances such as non-unanimity. Not surprisingly, greater integration of judge and jury produces higher agreement rates.

Beyond trial outcomes, forum participants also shared information about the ways in which the experience of participating as a lay decisionmaker affects the individuals who serve. Across different approaches to employing lay citizens as factfinders, one can observe increases in civic participation following service. Thus, citizen participation in legal decision making promotes democracy more generally. Forum participants observed that this insight offers another reason to look for ways to enhance, not decrease, the participation of citizens in legal cases.

It was valuable to hear from people around the globe as they shared the diverse approaches that countries are taking to including citizens as legal decision makers. Innovations and reforms seem to be a constant reality. During the short span of this forum, for example, we learned of significant institutional changes made to the People’s Assessors System in China.

Several forum commentators will participate in a Roundtable at the upcoming meeting of the Law and Society Association in Washington D.C. in June 2019. We look forward to continuing this fruitful discussion at the Roundtable.