Law Commons^™

Issues, Evan C. Zoldan

William & Mary Law Review

The Federal Rules of Civil Procedure have issues—148 issues to be exact. Although the Rules use the term “issue” throughout their text, they do not use it in the same way each time. In some circumstances, the meaning of “issue” is made clear by surrounding context, minimizing any interpretive difficulty. But sometimes context does not clarify the term’s meaning, creating interpretive challenges. This Article argues that the ambiguous term “issue” found in Federal Rules of Civil Procedure 50 and 52 is best read to mean a “dispute of fact.” This reading best comports with judicial interpretations of Rules 50 and …

The Administrative State's Jury Problem, Richard Lorren Jolly

Washington Law Review

This Article argues that the administrative state’s most acute constitutional fault is its routine failure to comply with the Seventh Amendment. Properly understood, that Amendment establishes an independent limitation on congressional authority to designate jurisdiction to juryless tribunals, and its dictate as to “Suits at common law” refers to all federal legal rights regardless of forum. Agencies’ use of binding, juryless adjudication fails these requirements and must be reformed. But this does not mean dismantling the administrative state; it is possible (indeed, necessary) to solve the jury problem while maintaining modern government. To that end, this Article advances a structural …

Reasons For The Disappearing Jury Trial: Perspectives From Attorneys And Judges, Shari Seidman Diamond, Jessica M. Salerno

Louisiana Law Review

The article discusses the results of a national survey of U.S. attorneys and judges on the possible reasons behind the disappearing jury trials in the country and the potential system effects on the decline of jury trials.

Justice Diseased Is Justice Denied: Coronavirus, Court Closures, And Criminal Trials, Ryan Shymansky

West Virginia Law Review Online

This Article aims to consider the immediate impacts of the novel coronavirus on criminal defendants’ access to speedy trials by jury. In particular, it aims to examine whether court closures and delays could affect the substantive rights of criminal defendants—and particularly pretrial detainees—to a speedy and public trial by jury. To date, very little scholarship has considered this question. Yet the ideal of a speedy trial by jury is deeply embedded in our Constitution and our judicial system, and the potential for a pandemic to limit or negate that right should ring scholastic and judicial alarm bells.

This analysis proceeds …

Shackling Prejudice: Expanding The Deck V. Missouri Rule To Nonjury Proceedings, Sadie Shourd

Vanderbilt Law Review

Courts in the United States have traditionally held that criminal defendants have the right to be free from unwarranted restraints visible to the jury during the guilt phase of a trial. The term “unwarranted restraints” refers to the use of restraints on a defendant absent a court’s individualized determination that such restraints are justified by an essential state interest. In Deck v. Missouri, the Supreme Court expanded the prohibition against unwarranted restraints to the sentencing phase of a trial. The law regarding the unwarranted shackling of defendants in nonjury proceedings, however, remains unsettled. The U.S. Courts of Appeals for the …

The Decline Of Civil Jury Trials: A Positive Development, Myth, Or The End Of Justice As We Now Know It?, Xavier Rodriguez

St. Mary's Law Journal

Jury participation is helpful in many respects. It fosters an understanding of the third branch of government and the workings of the judicial system. It offers the opportunity for individuals to serve in a unique role: neutral factfinder. Moreover, in an age of declining voter participation, jury service provides individuals with the opportunity to directly participate in our governmental structure. Despite these positive attributes, jury trials as we knew them are on the decline. That may or may not be problematic, depending on what types of cases are being impacted. Where parties have reached a voluntary and informed settlement on …

Has The Right To A Jury Trial As Guaranteed Under The Seventh Amendment Become Outdated In Complex Civil Litigation?, Georgiana G. Rodiger

Pepperdine Law Review

Recognizing the continually increasing burden placed on the jury in complex litigation cases, the author undertakes an extensive study of the origins of jury trials in the United States and England. Various arguments in favor of eliminating jury trials in complex litigation are discussed, along with a possible constitutional method of limiting the scope of the seventh amendment guarantee. The author also studies the case of Ross v. Bernhardt where the Supreme Court outlined a seldom used three- pronged test to determine whether or not a jury trial is constitutionally appropriate. The comment concludes that the factors in favor of …

A Foothold For Real Democracy In Eastern Europe, Elizabeth R. Sheyn

Vanderbilt Journal of Transnational Law

Ukraine has never had a criminal or civil jury trial despite the fact that the right to a criminal jury trial is guaranteed by Ukraine's Constitution. The lack of jury trials is one of the factors likely contributing to the corruption and deficiencies inherent in Ukraine's judicial system. This Article argues that Ukraine can and should make room for juries in its judicial system and proposes a framework for both criminal and civil jury trials. Although the use of juries will not remedy all of the problems plaguing Ukraine, it could bring the country closer to achieving a truly democratic …

People V. Coughlin And Criticisms Of The Criminal Jury In Late Nineteenth-Century Chicago, Eizabeth Dale

Northern Illinois University Law Review

The last decades of the nineteenth century and the first decades of the twentieth century are often described as the era in which the criminal jury trial came to an end. Criminal juries did not completely disappear, of course, but their role became smaller in those decades. Studies of the phenomenon typically attribute that decline to the rise of plea bargains in that same period. These studies note that institutional factors, such as caseloads and the political pressure on elected prosecutors to be "tough on crime," made plea bargains an increasingly attractive option for the State, and conclude from this …

Reconsidering In Re Technology Licensing Corporation And The Right To Jury Trial In Patent Invalidity Suits, Andrew W. Bateman

Chicago-Kent Law Review

Over the past decade, the Federal Circuit and the Supreme Court have lessened the role of the jury in patent cases, both by classifying patent issues as questions of law for the judge, and by limiting the situations in which jury trial is available as of right. Recently, In re Technology Licensing Corporation, the Federal Circuit held that there is no right to a jury trial in a declaratory judgment action seeking a declaration of patent invalidity, where the defendant counterclaims with alleged infringement and seeks an injunction as the sole remedy. In line with Supreme Court precedent, the …

Trial By Jury: Right Or Privilege?, David P. Rowe

University of Miami International and Comparative Law Review

No abstract provided.

Beauty And The Beast: Physical Appearance Discrimination In American Criminal Trials Comment., David L. Wiley

St. Mary's Law Journal

This Comment considers physical appearance discrimination by jurors in criminal trials. It proposes remedial measures to eliminate discrimination and effectuate the underlying purposes of jury trials. Part II of this Comment examines the psychological process of corporeal attribution and discusses the underlying philosophic dichotomy of image and substance. It surveys the role modern American culture plays in discrimination in the American criminal law system and discusses parallel relationships between race, sex, and physical appearance discrimination. Part IV explores constitutional ramifications of fostering and promoting physical appearance discrimination in criminal trials. Finally, Part V presents remedies designed to ensure criminal defendants …

Catch-22 Of Mandatory Summary Jury Trials, The, Daniel K. O'Toole

Journal of Dispute Resolution

Since its inception nearly ten years ago, the summary jury trial has received almost unanimous acclaim as an extremely effective means of inducing settlement and avoiding protracted litigation.' The settlement technique continued to be used with virtually no opposition2 until some courts began using the summary jury trial as a mandatory settlement mechanism. 3 Within the federal court system, a split of authority has developed as to the permissibility of a trial judge imposing a summary jury trial settlement procedure on litigants.4 Strandell v. Jackson County, Ill.5 and McKay v. Ashland Oil, Inc.6 are two of the more recent cases …

The Availability Of Jury Trials In Copyright Infringement Cases: Limiting The Scope Of The Seventh Amendment, Andrew W. Stumpff

Michigan Law Review

This Note argues that statutory copyright damages are properly regarded as equitable and hence that no right to a jury trial exists in cases brought to recover such damages. More generally, the Note maintains that the seventh amendment's distinction between equitable and legal causes of action has produced irrational consequences, and proposes that "legal" issues be defined narrowly so as to limit the scope of the seventh amendment. Part I analyzes the debate over statutory copyright damages, concluding that historical and statutory construction arguments require these damages to be construed as legal. Part II examines some of the problems that …

Equity, Due Process And The Seventh Amendment: A Commentary On The Zenith Case, Patrick Devlin

Michigan Law Review

The seventh amendment to the United States Constitution requires that "[i]n Suits at common law . . . the right of trial by jury shall be preserved." What exactly is a suit at common law? When the amendment was enacted in 1791, there was no law that was common to all the states. In 1812 Supreme Court Justice Story, in a Circuit Court ruling, held that the common law alluded to was the common law of England, "the grand reservoir of all of our jurisprudence." This means that when today an American judge has to decide whether in any set …

Judgment Non Obstantibus Datis, Reid Hastie

Michigan Law Review

A Review of Jury Trials by John Baldwin and Michael McConville

Supreme Court Decisions: In Criminal Jury Trials: Six Jurors Is The Minimum, J. Michael Dougherty Jr.

University of Baltimore Law Forum

No abstract provided.

Criminal Law-Multiple Jury Joint Trials-On The Joint Trial Of Two Defendants, The Empanelling Of Two Juries Simul- Taneously Is Permissible.

Fordham Urban Law Journal

Defendant was indicted on three separate counts in federal court and two juries were empaneled for one of the counts to try defendant and accomplice simultaneously. When testimony probative as to Sidman, but prejudicial to Clifford was about to be admitted through cross-examination, the jury sitting in judgment of Clifford was excused. Both men were convicted and on appeal Sidman's conviction was affirmed and Clifford's reversed. The multiple jury joint trial is a modification of the jury trial concept. The idea, however, desperately needs direction and it was for this reason that the appellate court, while upholding the conviction, did …

Constitutional Law--The Right To A Jury Trial In Disbarment Proceedings, Michigan Law Review

Michigan Law Review

Lawyers in the United States have long been considered officers of the court, subject to examination for good moral character and adequate education in law before admission to the bar. They have also been subject to summary proceedings for disbarment whenever they have deviated from accepted standards of conduct embodied in various codes of professional ethics. Although the specific grounds for disbarment vary from state to state and between federal and state courts, one thing is clear: in the absence of a specific statutory provision there traditionally has been no right to a jury trial in disbarment proceedings. Since the …

American Bar Association Project On Minimum Standards For Criminal Justice: Standards Relating To Trial By Jury (Approved Draft), Melvin M. Belli

Michigan Law Review

A Review of American Bar Association Project on Minimum Standards for Criminal Justice: Standards Relating to Trial by Jury (Approved Draft). Recommended by the Advisory Committee on the Criminal Trial

Routine Bifurcation Of Jury Negligence Trials: An Example Of The Questionable Use Of Rule Makings Power, Jack B. Weinstein

Vanderbilt Law Review

The Federal District Court for the Northern District of Illinois recently adopted a rule providing for submission of the issues of negligence to a jury before evidence on the issue of damages is introduced (hereinafter sometimes referred to as the bifurcation rule or split trial rule). While reflecting a commendable spirit of judicial responsibility for reducing court congestion, the issue of its propriety raises some of the most subtle and difficult problems of the proper relation of courts to legislature in our system of independent branches of government; of the characterization of matters as substantive and procedural for various purposes; …

Book Reviews, Stanley D. Rose (Reviewer), Charles C. Trabue, Jr. (Reviewer)

Vanderbilt Law Review

READINGS IN AMERICAN LEGAL HISTORY

Compiled and edited by Mark DeWolfe Howe

Cambridge: Harvard University Press, 1949. Pp. 529.$7.50

reviewer: STANLEY D. ROSE

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THE GROWTH OF AMERICAN LAW: THE LAW MAKERS

By James Willard Hurst

Boston: Little, Brown and Co., 1950. Pp. xiii, 502. $5.50

reviewer: STANLEY D. ROSE

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REASON AND LAW

By Morris R. Cohen

Illinois: The Free Press, 1950. Pp.211. $3.50

reviewer: STANLEY D. ROSE

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AN INTRODUCTION TO LEGAL REASONING

By Edward H. Levi

Chicago: The University of Chicago Press, 1949. Pp. 74. $2.00

reviewer: STANLEY D. ROSE

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LIVING LAW OF DEMOCRATIC SOCIETY

By …

Jury Trial, Waiver Thereof And The Alternate Juror, Alfred A. Naff

Kentucky Law Journal

No abstract provided.

Civil Pleading In Scotland, Robert Wyness Millar

Michigan Law Review

It might be expected that, after the lodging of the answers and pleas in law on the part of the defender, a brief period would now be allowed the pursuer to put in a reply to any affirmative allegations contained in the defender's pleading. But this is not the case, at least in the sense of his lodging a separate pleading. He is given opportunity to reply, but by way of revising his condescendence. Basically, the principle is the same as that obtaining in our classic chancery practice, whereby the complainant amended his bill in order to include any special …

Waiver Of Jury Trial In Criminal Cases In Kentucky, Roy Mitchell Moreland

Kentucky Law Journal

No abstract provided.

Proposed Legislation: Waiver Of Trial By Jury In Criminal Cases, Roy Mitchell Moreland

Kentucky Law Journal

No abstract provided.

The Scottish Jury, Rufus Fleming

Michigan Law Review

The origin of the jury is one of the subjects on which an agreement has not been. reached by writers on the history of law. A number of theories have been put forward at different times. At this day two of these theories receive considerable support. The first is that the jury system is a gradual and natural sequence from the modes of trial in use among the Anglo-Saxons and Anglo-Normans. The second-and perhaps the one more widely accepted at present-is that we owe trial by jury to the legal institutions of the Frankish empire. (Forsyth's "History of Trial by …