I always find it fascinating how the judiciary deals with loopholes; e.g., methods that attempt to circumvent what are otherwise clear rules.
For example, take this case. Federal Rule of Civil Procedure 31 doesn't allow you to waive the right to a unanimous jury. It doesn't matter if you're fine with an 11-1 verdict; presumably, because you believe that the 11 are on your side and the 1 against. You still can't stipulate to it. Society wants (and has an interest) in unanimity, and hence demands it. You can't stipulate to it at trial (or during deliberations) and you can't stipulate to it beforehand. You just can't do it.
Federal Rule of Civil Procedure 23(b), however, does permit you to stipulate to a jury of less than 12. So, for example, you can clearly start the case with, say, 11 jurors. And if they decide, unanimously, one way or the other, the verdict is valid.
So those are the rules. Which brings us to the issue at hand.
Say that -- and, as you might imagine, this is not merely a hypothetical -- the jury sends out a note that says they're deadlocked at 11-1. You can't stipulate to accept that verdict, since that would clearly violate Rule 31. But can you nonetheless stipulate to dismiss the one juror, and then promptly accept the resulting 11-0 verdict, pursant to Rule 23? To put it another way, can you accomplish under Rule 23 what you're expressly prohibited from accomplishing under Rule 31?
I'll leave you in suspense as to the proper answer. I think that Judge Clifton (who writes the majority opinion) does a good job of articulating his view, and that Judge Gibson -- who's sitting by designation from the Eighth Circuit and who dissents -- does a fairly mediocre job of articulating the contrary view.
Regardless, I like the query. I'm a guy who very much likes legal puzzles and creative legal thinking and the like, and who enjoys (and appreciates) both "playing the game" as well as figuring out ways around seemingly insurmountable obstacles. Nonetheless, as a policy -- and textual -- matter, that doesn't mean that I believe that the judiciary should let me get away with my attempts to do so. So I think this is a pretty good test case for how one should respond to the use of "loopholes" of this type.
It's a neat little puzzle. I like it.
