Law Commons^™

Appellate Courts And Civil Juries, Adam N. Steinman

Faculty Scholarship

In federal civil litigation, decision-making power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation—which is now before the Supreme Court—exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury’s verdict …

Disbelief Doctrines, Sandra F. Sperino

Faculty Articles and Other Publications

Employment discrimination law is riddled with doctrines that tell courts to believe employers and not workers. Judges often use these disbelief doctrines to dismiss cases at the summary judgment stage. At times, judges even use them after a jury trial to justify nullifying jury verdicts in favor of workers.

This article brings together many disparate discrimination doctrines and shows how they function as disbelief doctrines, causing courts to believe employers and not workers. The strongest disbelief doctrines include the stray comments doctrine, the same decisionmaker inference, and the same protected class inference. However, these are not the only ones. Even …

Restoring The Civil Jury In A World Without Trials, Dmitry Bam

Faculty Publications

Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.

This article argues that we must reimagine the civil jury to match the …

Don’T Forget About The Jury: Advice For Civil Litigators And Criminal Prosecutors On Differences In State And Federal Courts In New York, Ariel Atlas

Cornell Law Library Prize for Exemplary Student Research Papers

In civil cases, forum selection has become an integral part of litigation strategy. Plaintiffs have the initial choice of where to file a complaint, and thus where to begin a lawsuit. Defendants have the power to remove cases, under circumstances prescribed by statute, from state court to federal court. Many factors enter into the decision of where to file a complaint or whether to remove a case including convenience, applicable law, and suspected biases. But what about the jury? Should a plaintiff consider characteristics of the jury when deciding where to file a complaint or a defendant in a civil …

The American Jury System: A Synthetic Overview, Richard O. Lempert

Articles

This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one …

Trial By Preview, Bert I. Huang

Faculty Scholarship

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the parties to settle; why incur the expenses of trial, if everyone knows what will happen? Rarely noted, however, is one complication: The impact of previewing the evidence is intertwined with how well the parties know their future audience-that is, the judge or the jury who will be the finder …

Information Lost And Found, Frederic M. Bloom

Publications

At the core of every lawsuit is a mix of information-revealing documents that chronicle a party's malfeasance, guarded memos that outline a lawyer's trial strategy, fading memories that recall a jury's key mistakes. Yet the law's system for managing that information is still poorly understood. This Article makes new and better sense of that system. It begins with an original examination of five pieces of our civil information architecture--evidence tampering rules, automatic disclosure requirements, work product doctrine, peremptory challenge law, and bans on juror testimony--and compiles a novel study of how those doctrines intersect and overlap. It then fits these …

The French Jury At A Crossroads, Valerie P. Hans, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

There's A Pennoyer In My Foyer: Civil Procedure According To Dr. Seuss, Elizabeth Chamblee Burch

Scholarly Works

This is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure - the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, and joinder.

The Internationalization Of Lay Legal Decision-Making: Jury Resurgence And Jury Research, Richard O. Lempert

Articles

When I first began to study the jury more than thirty years ago, the topic of this Journal issue, jury systems around the world, was unthinkable. The use of juries, especially in civil litigation, had long been in decline, to the point of near extinction in England, the land of their birth, and the live question was whether the jury system would endure in the United States. It seemed clear that juries would not continue in their classic form, as many U.S. states, with the Supreme Court's eventual approval, mandated juries of less than twelve people and allowed verdicts to …

Venue In Missouri After Tort Reform, David J. Achtenberg

Faculty Works

Venue matters. Anyone who doubts it need only look to the venue wars waged in the Missouri Supreme Court during the last decades. Understandably, plaintiffs prefer unrestrictive venue rules so that they can file and try their cases in counties with plaintiff-friendly jury pools. Just as understandably, defendants prefer rules that restrict plaintiffs' ability to choose between multiple venues and, to the extent possible, rules that permit the defendant to select the counties in which they can be forced to defend their actions.

The passage of Missouri's 2005 Tort Reform Act represented an important legislative victory for defendants in this …

The Merger Of Common-Law And Equity Pleading In Virginia, William Hamilton Bryson

Law Faculty Publications

This article describes the separation of common law and equity in Virginia leading up to the 2006 merger of common law and equity pleading and the problems that remain to be solved by the courts.

Processing Civil Rights Summary Judgment And Consumer Discrimination Claims, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

The Jury And Scientific Evidence, Richard O. Lempert

Articles

Read court decisions and commentaries from 100, or evenfive years ago, and you will find that experts and scientific evidence were causing problems then just as they are causing problems now. I do not think that Daubert, Kumho Tire, or any change in a rule of evidence will keep expert scientific testimony from being a difficult area for the legal system. Yet we must still ask: "What are the best terms on which to deal with scientific experts, and how can weimprove the system?"

Juries, Hindsight, And Punitive Damage Awards: Failures Of A Social Science Case For Change, Richard O. Lempert

Articles

In their recent Arizona Law Review article entitled What Juries Can't Do Well: The Jury's Performance As a Risk Manager,' Professors Reid Hastie and W. Kip Viscusi purport to show that juries are likely to do a poor job in setting punitive damages, largely because jurors cannot avoid the influence of what is called "hindsight bias," or the tendency to see the likelihood of an event higher in retrospect than it would have appeared before it happened. In particular, they argue that hindsight bias and other cognitive biases undermine the utility of jury-set punitive damage awards as risk management devices. …

Make-Believe: The Rules Excluding Evidence Of Character And Liability Insurance (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law), Samuel R. Gross

Articles

Article IV of the Federal Rules of Evidence includes several rules that prohibit the use of specified types of information as evidence of particular propositions. Subsequent remedial measures are inadmissible to prove negligence (but admissible to show ownership, control, et cetera),' settlement offers are inadmissible to prove liability (but admissible to show bias or prejudice, or for other purposes),2 and so forth. Any exclusion of relevant evidence involves some distortion of reality in the sense that the picture presented to the trier of fact includes less information than the available total. That will be true whether the evidence is kept …

The Power And The Process: Instructions And The Civil Jury, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The form of the court's charge to the jury affects power relationships among judge and jury, trial and appellate courts, and plaintiffs and defendants. It also influences the role of the jury and the content of the underlying substantive law. Under current federal law, trial judges have virtually complete discretion in making decision about jury charge format, despite the important implications of that decision. This article demonstrates, by using examples, the ways in which the form of the jury charge can make a difference. It then argues that the general charge should remain the norm. This is true first for …

Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Experts, Stories, And Information, Richard O. Lempert

Articles

In the infancy of the jury trial, there were no witnesses. The jury was self-informing. Members of the jury were drawn from the community. It was expected that they would know, either firsthand or on the basis of what they had heard, the true facts of any disputed incident, and they were gathered together to say what those facts were. Ronald Allen and Joseph Miller, in their insightful paper, see the ideal of the self-informing jury as very much alive today. Allen and Miller tell us that jurors ideally should experience firsthand the factual information needed to arrive at rational …

Settling For A Judge: A Comment On Clermont And Eisenberg, Samuel R. Gross

Articles

Trial by Jury or Judge: Transcending Empiricism,1 by Kevin Clermont and Theodore Eisenberg, is not only an important article, it is unique. To most Americans, trial means trial by jury. In fact, over half of all federal trials are conducted without juries2 (including 31% of trials in cases in which the parties have the right to choose a jury3), and the proportion of bench trials in state courts is even higher.4 And yet, while there is a large literature on the outcomes of jury trials and the factors that affect them,5 nobody else has systematically compared trials by jury to …

Telling Tales In Court: Trial Procedure And The Story Model, Richard O. Lempert

Articles

There are three ways in which stories may figure prominently at trials. First, litigants may tell stories to jurors. Not only is there some social science evidence that this happens, but trial lawyers have an instinctive sense that this is what they do. Ask a litigator to describe a current case and she is likely to reply, "Our story is ... " Second, jurors may try to make sense of the evidence they receive by fitting it to some story pattern. If so, the process is likely to feed back on itself. That is, jurors are likely to build a …

Post-Trial Motions In Private Antitrust Actions: A Practitioner's Guide, John E. Rumel

Articles

No abstract provided.

Annual Survey Of Virginia Law - Civil Procedure And Practice, William Hamilton Bryson

Law Faculty Publications

This article considers recent developments in the field of Virginia civil procedure and practice, including statutes, rules of court, and opinions of the Supreme Court of Virginia and the Court of Appeals of Virginia that have appeared between May 1985 and May 1986. This article also comments on cases in volumes three and four of Virginia Circuit Court Opinions, many of which were decided before 1985, but it is appropriate to mention them here since they were only recently made generally available through publication. There have been no major changes in the area of Virginia civil procedure during the period …

The Twelve-Person, Unanimous Jury: Does It Have More Than History To Recommend It?, Richard O. Lempert

Articles

My focus today will be on the twelve-person unanimous jury and on the contrasts between such juries and six-person juries or twelve-person juries than can return verdicts by ten-two or nine-three votes. Until about fifteen years ago, it appeared that the sixth and seventh amendments required all federal juries to have twelve members who reached unanimous verdicts, and it appeared possible that the Supreme Court would force the states to conform to the federal standards. Instead, the court did almost the opposite. It sanctioned juries as small as size six in state criminal cases and federal civil cases, and it …

Chapters Of The Civil Jury, Doug Rendleman

Scholarly Articles

The civil jury, though constitutionally protected by the seventh amendment, has remained a controversial institution throughout much of Anglo-American legal history. Our romantic ideals are questioned by critics who view the civil jury as prejudiced and unpredictable; proponents note the sense of fairness and "earthy wisdom" gained by community participation in the legal process. This debate surfaces in the process of accommodation between certain substantive goals of the law and the pre-verdict and post-verdict procedural devices courts have employed to control the jury. In this article, Professor Rendleman examines this conflict in his three "chapters" involving racially motivated discharges of …

Chapters Of The Civil Jury, Doug R. Rendleman

Faculty Publications

The civil jury, though constitutionally protected by the seventh amendment, has remained a controversial institution throughout much of Anglo-American legal history. Our romantic ideals are questioned by critics who view the civil jury as prejudiced and unpredictable; proponents note the sense of fairness and "earthy wisdom" gained by community participation in the legal process. This debate surfaces in the process of accommodation between certain substantive goals of the law and the pre-verdict and post-verdict procedural devices courts have employed to control the jury. In this article, Professor Rendleman examines this conflict in his three "chapters" involving racially motivated discharges of …

Kentucky Law Survey: Civil Procedure, William H. Fortune

Law Faculty Scholarly Articles

This article provides a survey of civil procedure developments in the Commonwealth of Kentucky. The most significant civil procedure case decided by the Kentucky Court of Appeals during the period covered by this Survey is Nazareth Literary and Benevolent Institution v. Stephenson. That case, which deals with discovery of privileged communications, may have created problems that will require legislative action. Other decisions by the Court during this period serve to illustrate and amplify existing procedural points. The more important of these decisions will be briefly discussed prior to the consideration of Stephenson.

The Right Of A Jury In A Criminal Case To Render A Verdict Against The Law And The Evidence, Edson R. Sunderland

Articles

One George D. Horning was convicted of the criminal offense of doing business as a pawnbroker in the District of Columbia without a license. The jury, which rendered the verdict of guilty, were told by the court, in the course of the charge, that there really was no issue of fact for them to decide; that the evidence showed a course of dealing constituting a breach of the law, and that they were not warranted in capriciously saying that the witnesses for the government and for the defendant were not telling the truth; that it was their duty to accept …

Verdicts, General And Special, Edson R. Sunderland

Articles

The most remarkable thing about this case of Georgia v. Brailsford is that a matter of such elementary importance in the daily administration of the law, after being announced in so dramatic a way by the Supreme Court of the United States at the very threshold of its career, could have dropped into oblivion for a hundred years only to be repudiated in a way hardly less dramatic by a sharply divided court. The controversy here disclosed goes to the very heart of the jury system as it has been developed by the common law and is still almost universally …

Should A Correct Verdict Be Set Aside Because The Jury Failed To Follow Erroneous Instructions?, Edson R. Sunderland

Articles

One of the common grounds of a new trial is that the verdict is contrary to law. What law is meant,--the law as it really is, or the law that was given to the jury by the court's instruction? Most cases hold to the latter view. It is the duty of the jury to take the law from the court, whether the court in so giving it is right or wrong. Hence, the jury violate their duty if they fail to follow instructions, even if the instructions are wrong, and a verdict based on a breach of the jury's duty …