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Decisionmaking About General Damages: A Comparison Of Jurors, Judges, And Lawyers, Roselle L. Wissler, Allen J. Hart, Michael J. Saks
Decisionmaking About General Damages: A Comparison Of Jurors, Judges, And Lawyers, Roselle L. Wissler, Allen J. Hart, Michael J. Saks
Michigan Law Review
Placing important decisions in the hands of the civil jury - made up of ordinary citizens untrained in the law - has long been criticized. For example, Erwin Griswold, law school dean and Solicitor General of the United States, asked, "Why should anyone think that 12 persons brought in from the street, selected in various ways, for their lack of general ability, should have any special capacity for deciding controversies between persons?" And Jerome Frank, law professor, aggressive legal realist, and judge, argued that juries are uncertain, capricious, and unpredictable, ignorant and prejudiced, poor factfinders, gullible, and incapable of following …
The Democracy-Forcing Constitution, Neal Devins
The Democracy-Forcing Constitution, Neal Devins
Michigan Law Review
During my freshman year in college, I was told not to judge a book by its cover. The book in question - Lolita; the cover suggested something quite salacious. My professor explained that a soldier, who had purchased Lolita to work out some of the kinks of military life, found himself tossing the book out, proclaiming in disgust "Literature!" Well, I cannot claim precisely the same reaction to Cass Sunstein's One Case at a Time (my expectations were lower than the soldier's). Nevertheless, for those expecting a lefty defense of judicial restraint, One Case at a Time is not your …
Constitutional Fact And Theory: A Response To Chief Judge Posner, Deborah Jones Merritt
Constitutional Fact And Theory: A Response To Chief Judge Posner, Deborah Jones Merritt
Michigan Law Review
In his James Madison Lecture on Constitutional Law, Chief Judge Richard Posner chides both professors and judges for devoting too much attention to constitutional theory and too little time to empiricism. Although I agree with Judge Posner's endorsement of empiricism, I dispute the roles he assigns empiricism and theory. Social science matters when interpreting the Constitution, but not in the way Posner posits. Facts cannot replace constitutional theories, nor can they mechanically resolve questions posed by theory. Instead, empirical knowledge is most useful in unmasking the theoretical assumptions that undergird constitutional law, in focusing those theories, and in contributing to …
The Courage Of Our Convictions, Sherman J. Clark
The Courage Of Our Convictions, Sherman J. Clark
Michigan Law Review
This article argues that criminal trial juries perform an important but inadequately appreciated social function. I suggest that jury trials serve as a means through which we as a community take responsibility for - own up to - inherently problematic judgments regarding the blameworthiness or culpability of our fellow citizens. This is distinct from saying that jury trials are a method of making judgments about culpability. They are that; but they are also a means through which we confront our own agency in those judgments. The jury is an institution through which we as individuals take a turn acknowledging and …