Juries For Takings Liability: Treating Litigants Alike

INTRODUCTION

The right to trial by jury has long been accepted as a foundational part of Anglo-American law. The Supreme Court has called it "the bulwark of American liberties"² and a cornerstone of our system of justice.³ Blackstone praised it as "the glory of the English law."⁴ John Adams called it "the heart and lungs" of liberty.⁵ Thomas Jefferson concluded that trial by jury was "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."⁶ More recently, constitutional scholar Akhil Reed Amar concluded that "[n]o idea was more central to our Bill of Rights ... than the idea of the jury."⁷ And, lest we forget, one of the explicit charges in the Declaration of Independence justifying our split with England was "[f]or depriving us in many cases, of the benefits of Trial by Jury."⁸ Take a poll of lawyers and the odds are strong that most will tell you they would prefer trying their cases to juries rather