The Positive and Normative Puzzle of Decision Rules for Juries: the Example of Decision Rules for Civil Litigation in State Courts

All of the decision rules for juries in state courts, deciding civil cases, are what may be characterized as “two way” rules. Whatever consensus is required to secure a favorable verdict applies to all parties to the litigation. The governing decision rule varies from 2/3 in three states, to a supermajority of 5/6 or 3/4 in a majority of states, to unanimity in a minority of states. Thus, in the usual twelve person jury, in the various states, from eight to twelve jurors must concur for a verdict to be returned. If neither side is supported by a sufficient number of jurors to satisfy the decision rule, the jury “hangs”: No verdict is rendered and the case may be retried one or more times.

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