Law Commons^™

Race, Diversity, And Jury Composition: Battering And Bolstering Legitimacy, Leslie Ellis, Shari Siedman Diamond

Chicago-Kent Law Review

Impartiality is both elusive and important for the legitimacy of the jury and its decisions. After presenting a realistic version of impartiality that recognizes how jurors reach judgments, we present empirical evidence demonstrating the costs incurred when the promise of impartiality appears to be violated. We then evaluate various approaches aimed primarily at increasing the racial heterogeneity of juries. Finally, we describe a simplified, multimethod approach that combines improvements in source lists and a simple non-race-based geographic adjustment to improve the appearance and reality of jury impartiality by increasing jury heterogeneity.

A Voir Dire Of Voir Dire: Listening To Jurors' Views Regarding The Peremptory Challenge, Mary R. Rose

Chicago-Kent Law Review

The use of the peremptory challenge during jury selection continues to be a source of controversy, in part because critics are concerned about the attitudes and reactions of those allegedly excused on the basis of stereotypes, i.e., "for no reason." In the present research, a sample of people excused from criminal juries via the peremptory were followed-up and asked to speculate on why they were excused, as well as to rate their experience with jury selection on a number of dimensions. I hypothesized that even if all rationales involved some amount of "stereotyping," people's views about being excused should vary …

Jurors As Statutory Interpreters, Lawrence M. Solan

Chicago-Kent Law Review

The standard division of labor at trial is that jurors find facts and judges interpret statutes. But this was not always the standard, and it is still not always so. Until the end of the nineteenth century, it was up to jurors not only to find the facts, but also to determine the law, at least in criminal cases. This task was considered an important part of democratic government in that it created a buffer of twelve citizens who could refuse to convict if a law was considered unduly oppressive. This history is sometimes discussed as relevant to the practice …

Table Of Contents - Issue 3, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Foreword, John Paul Stevens

Chicago-Kent Law Review

No abstract provided.

Introduction To The Jury At A Crossroad: The American Experience, Nancy S. Marder

Chicago-Kent Law Review

The jury is integral to the American experience of democracy and yet it appears to be under attack. With negative press attention focused on the jury in recent years and calls for imposing limits on the jury gaining support in state and national legislatures, the jury is at a crossroad. Will reforms be made that weaken the jury's roles and power simply to provide a quick fix for an institution that is mischaracterized as broken? This symposium provides a multi-faceted and sustained examination of the roles of the jury past, present, and future. It explores not only the broad roles …

The Origins Of Felony Jury Sentencing In The United States, Nancy J. King

Chicago-Kent Law Review

This Article traces the development of jury sentencing in non-capital felony cases in Virginia and Kentucky, as well as the rejection of jury sentencing in Pennsylvania, in the late eighteenth century. Several of the explanations that modern commentators on jury sentencing have offered for the adoption of jury sentencing are questioned. In Virginia, where party politics may have affected the choice of jury over judge, pockets of judicial sentencing power remained, inconsistent with a strong preference for the democratic judgment of a jury in punishment over the professional decisions of the judiciary. Kentucky's experience suggests that settlement patterns and legal …

How Much Do We Really Know About Race And Juries? A Review Of Social Science Theory And Research, Samuel R. Sommers, Phoebe C. Ellsworth

Chicago-Kent Law Review

Social science findings are often overlooked or oversimplified by legal scholars who write about race and juries. This body of empirical research offers important theoretical and methodological contributions to the study of race and jury decision making, yet it is also marked by inconsistencies and common design limitations. In the present Article, we evaluate the state of this literature more critically and attempt to integrate its often disparate findings using psychological theories of racial bias and social judgment. Our review includes studies that measure the influence of a defendant's race on the judgments of individual jurors; studies comparing the decision …

The Current Debate On Juror Questions: "To Ask Or Not To Ask, That Is The Question", Nicole L. Mott

Chicago-Kent Law Review

This Article addresses the concerns as well as the advantages when courts allow jurors to submit questions to the court and/or witnesses. Based on reviewing the content of 2,271 juror questions submitted in 164 cases, the author categorizes what jurors typically ask and to whom jurors direct their questions. Most juror questions were directed to witnesses and experts. In both criminal and civil cases, jurors typically asked facts about the case, motives of both the witness and the defendant/party, and common practices of professions often unfamiliar to laypersons. In criminal cases, jurors were more likely to question specific eyewitness evidence …

Jurors And The Future Of "Tort Reform", B. Michael Dann

Chicago-Kent Law Review

Jurors are not supposed to allow their personal attitudes about the law, including tort law, affect their decision. This Essay asserts, however, that jurors, acting as conscientious and impartial decision makers, in fact do have cognitive and emotional "stakes" in tort litigation, namely the trial process that they are subjected to, and in making fair and equitable decisions. Various "tort reform" proposals affect, for better or worse, jurors' abilities to understand the evidence and the law, apply the law to the facts, and do justice. The author, a former trial judge, and a self-confessed "jurorcentric" supporter of jury trial reforms, …

When All Of Us Are Victims: Juror Prejudice And "Terrorist" Trials, Neil Vidmar

Chicago-Kent Law Review

On September 11, 2001 all Americans became victims. The threat of terrorism at home and abroad, now and for the indefinite future, is not only to their physical safety and economic well-being, but also to their deeply held social and political values. The terrorists have been identified as members of the Muslim faith and most are of Middle Eastern ethnic descent. This Article discusses the problem of persons accused of being terrorists, or aiding terrorists, obtaining a fair trial in the light of this national victimization. Research conducted for the "American Taliban" case of John Walker Lindh, reported in the …

Avoid Bald Men And People With Green Socks? Other Ways To Improve The Voir Dire Process In Jury Selection, Valerie P. Hans, Alayna Jehle

Chicago-Kent Law Review

During jury selection, many courts adopt a minimal approach to voir dire questioning, asking a small number of close-ended questions to groups of prospective jurors and requiring prospective jurors to volunteer their biases. The Article describes research evidence showing that limited voir dire questioning is often ineffective in detecting juror bias. To improve the effectiveness of voir dire, the authors make four recommendations: (1) increase the use of juror questionnaires; (2) incorporate some open-ended questions; (3) expand the types of questions that are asked; and (4) allow attorneys to participate in voir dire.

Death Of An Accountant: The Jury Convicts Arthur Andersen Of Obstruction Of Justice, Stephan Landsman

Chicago-Kent Law Review

Since at least the time of Peter Zenger, American juries have served as agents of legal and social change. When and how juries become involved in transformative decision making has only occasionally been examined. This Article seeks to explore the jury as change agent in the context of the recent conviction of the Arthur Andersen accounting firm on a charge of obstruction of justice. It analyzes the erroneous belief that the case would be a "slam-dunk" for the government, detailing why the jury found the matter so difficult to decide. It then considers the reasons for the government's hard-won victory …

Nullification At Work? A Glimpse From The National Center For State Courts Study Of Hung Juries, Paula L. Hannaford-Agor, Valerie P. Hans

Chicago-Kent Law Review

In recent years, the criminal justice community has become increasingly concerned about the possibility that jury nullification is the underlying motivation for increasing numbers of acquittals and mistrials due to jury deadlock in felony jury trials. In this Article, the authors discuss the inherent difficulty in defining jury nullification and identifying its occurrence in actual trials. They review the evolution in public and legal opinion about the legitimacy of jury nullification and contemporary judicial responses to perceived instances of jury nullification. Finally, the authors examine the possible presence of jury nullification through empirical analysis of data collected from 372 felony …

A Conservative Perspective On The Future Of The American Jury Trial, Robert P. Burns

Chicago-Kent Law Review

The American jury trial has evolved in a way that is deeply respectful of the dense complexity of competing values that pervade our common life. The consciously structured hybrid of languages and practices of which the trial is composed reflects those values fairly. The trial is thus the crucible of democracy. Simplistic understandings of the trial rooted in a form of legal positivism and an affection for bureaucracy threaten it. We must be very careful of distorting the architecture of what we have achieved in one of greatest achievements of our public culture. This is not to say that reform …

Proof Beyond All Possible Doubt: Is There A Need For Higher Burden Of Proof When The Sentence May Be Death?, Leonard B. Sand, Danielle L. Rose

Chicago-Kent Law Review

Recent studies conclude that errors occur in the American capital punishment system with such frequency that it is entirely foreseeable that, if continued unaltered, numerous innocent persons will be executed. Assuming that this is unacceptable but that America will wish to continue to utilize the death penalty in its justice system, the authors believe that society has a duty to try to reduce the frequency of such errors. The authors propose that the requisite burden of proof in the penalty phase of a capital trial should be raised from beyond a reasonable doubt to beyond all possible doubt. The …

Technology Service Solutions: New Wine In Old Wineskins?, Elizabeth A. Pawlicki

Chicago-Kent Law Review

This Comment examines the National Labor Relations Board's decision in Technology Services Solutions, which held—via application of the Supreme Court's "reasonable alternative means" test-that an employer did not commit an unfair labor practice when it refused to provide the union attempting to organize the employer's teleworking customer service representatives with employees' names and addresses. After reviewing the evolution of union access rules, Pawlicki argues that by endorsing the application of traditional union access rules to the nontraditional telework environment, the National Labor Relations Board effectively denied an emerging segment of U.S. workers a right that has long been a …

This Land Is My Land: The Need For A Feasibility Test In Evaluation Of Takings For Public Necessity, Thomas J. Posey

Chicago-Kent Law Review

Federal and state governments, through the use of eminent domain, may condemn the property of a private landowner and use that property to meet a public necessity. If the landowner challenges the condemnation, the courts generally perform an extremely narrow review of the government's decision to take the land. In order to prevail, the landowner must show either that the taking was in violation of constitutional or statutory provisions, or that some gross impropriety such as fraud or abuse of discretion occurred. However, landowners generally may not base their challenges on the grounds that the proposed project is unfeasible or …

Free Speech And Conflicts Of Rights: Commentary On Robert F. Nagel, "A New Methodology For Constitutional Cases?" And Steven J. Heyman, "Ideological Conflict And The First Amendment", Susan J. Brison

Chicago-Kent Law Review

No abstract provided.

Ideological Conflict And The First Amendment, Steven J. Heyman

Chicago-Kent Law Review

In the ongoing culture wars, no area is more controversial than freedom of expression. In the midst of this controversy, it is tempting to appeal to an ideal version of the First Amendment that stands above ideological conflict. As this Essay shows, however, the amendment has always been subject to competing interpretations that are rooted in differing political, social, and cultural views. It follows that the meaning of the First Amendment can never be wholly removed from ideological conflict. But such conflict should not be unbounded. Instead, a central task of constitutional jurisprudence is to develop a common language or …

Legal Feeling: The Place Of Intimacy In Interracial Marriage Law, Nancy Bentley

Chicago-Kent Law Review

A will to stigmatize and prohibit black-white interracial marriage has been a defining national trait of U.S. culture. Although sex between the races was frequently tolerated, interracial marriage generated enormous opposition, especially after the Civil War. In order to understand this legal history, it is crucial to recognize the way a species of intimacy, the desire to marry, has the potential to shape legitimacy—to ratify or, conversely, to erode the authority of law itself. Jürgen Habermas's theory of the importance of the Intimsphäre to the public sphere helps to explain the force of marital desire in legal history. As Habermas …

Table Of Contents - Issue 2, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Law And Cultural Conflict: Introduction, Sarah Harding

Chicago-Kent Law Review

No abstract provided.

Law And Cultural Conflict, Robert Post

Chicago-Kent Law Review

The relationship between law and cultural conflict is a subject that is relevant to numerous contemporary disagreements about the substance of rights. The Article does not attempt to intervene into these disagreements, but instead to construct a common framework of analysis that might facilitate constructive dialogue among those who would otherwise disagree. The framework offers three dimensions in which the relationship of law to cultural conflict might be assessed.

The first dimension concerns the sociological relationship between law and culture. The simplest model of this relationship, which the Article calls the "Devlin model," assumes that law is the expression of …

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Chicago-Kent Law Review

This Essay examines six opinions authored by Justice John Paul Stevens for the purpose of assessing whether his iconoclastic methodology might represent an attractive alternative to standard doctrinalism. Each of the opinions involves an effort to reconcile the right "to be left alone" with some other constitutional value. In all but one, conventional formulae are replaced by rather candid interest balancing that draws on nonlegal cultural resources in a relatively transparent way. At its best, this approach allows for realism and a commonsensical accommodation of disparate interests. However, at its worst it leads to opinions that are characterized by a …

Barnette'S Big Blunder, Steven D. Smith

Chicago-Kent Law Review

Among the most celebrated statements ever issued in a Supreme Court opinion is Justice Robert Jackson's resounding declaration in West Virginia State Board of Education v. Barnette that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." By using the preposition "or" rather than "and," Jackson asserted two constitutional prohibitions: government may not force citizens to confess an orthodoxy, but government may also not …

Establishment, Expressivism, And Federalism, Mark D. Rosen

Chicago-Kent Law Review

The Supreme Court has held that the Fourteenth Amendment makes the Establishment Clause applicable "with full force to the States." This Essay dubs this a "one-size-fits-all" approach and suggests that it may be desirable in the Establishment Clause context to "size" constitutional limitations to the level of government-federal, state, or local—that is acting. That is to say, it may be the case that states or localities should be permitted to regulate in ways that the federal government cannot, and vice versa. "Sizing" draws on underutilized flexibility that is inherent in our government's federal structure. The struggle concerning religion and the …

Liberalism And The Establishment Clause, Steven H. Shiffrin

Chicago-Kent Law Review

Every political theory tolerates some things and not others. Every political theory promotes a particular kind of person even if it denies it is doing so. But the best liberalism does not confine itself to promoting a Rawlsian-tolerant citizen. Liberalism, like conservatism, has greater ambitions in the socialization of the young. The best liberalism, a neo-Millian liberalism, promotes a creative, independent, autonomous, engaged citizen and human being who works with others to make for a better society and speaks out against unjust customs, habits, institutions, traditions, hierarchies, and authorities. Although government may promote a particular conception of the good life, …

No Expressly Religious Orthodoxy: A Response To Steven D. Smith, Andrew Koppelman

Chicago-Kent Law Review

Steven Smith is correct: the Barnette principle as Justice Jackson states it is too sweeping to make sense. The principle has not done the mischief Smith attributes to it, however, because it has been subjected to some familiar qualifications that dispel his objections. Jackson's dictum applies only to religion, not to other possible objects of official orthodoxy. Even with respect to religion, it only prohibits action that explicitly endorses a religious view. This rule serves the purposes of the Establishment Clause well. In light of our deep disagreement about religious matters, and the obvious fact that religion can and does …

A War Of Words: Revelation And Storytelling In The Campaign Against Mormon Polygamy, Sarah Barringer Gordon

Chicago-Kent Law Review

In the nineteenth century, the power of religious belief transformed the legal landscape. This Article details how the Church of Jesus Christ of Latter-day Saints (commonly called the Mormon Church) instilled a new and very different law of marriage for followers. Plural marriage, or polygamy, was key to Mormons' revisioning of traditional Christian faith and practice. Polygamy was also key to a widespread popular campaign to outlaw the Mormon practice. Novelists drew on widely shared ideas about the proper relationship of church and state, and also on theories that Christian monogamy was the basic building block of society. Without separation …