Civil Procedure Commons^™

Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman

Northwestern Journal of Law & Social Policy

Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, …

Mirror, Mirror, On The Wall—Biased Impartiality, Appearances, And The Need For Recusal Reform, Zygmont A. Pines

Dickinson Law Review (2017-Present)

The article focuses on a troubling aspect of contemporary judicial morality.

Impartiality—and the appearance of impartiality—are the foundation of judicial decision-making, judicial morality, and the public’s trust in the rule of law. Recusal, in which a jurist voluntarily removes himself or herself from participating in a case, is a process that attempts to preserve and promote the substance and the appearance of judicial impartiality. Nevertheless, the traditional common law recusal process, prevalent in many of our state court systems, manifestly subverts basic legal and ethical norms.

Today’s recusal practice—whether rooted in unintentional hypocrisy, wishful thinking, or a pathological cognitive dissonance— …

Recent Developments: The Right To A Fair Cross-Section Of The Community And The Black Box Of Jury Pool Selection In Arkansas, Raelynn J. Hillhouse

Arkansas Law Review

A Washington County, Arkansas court conducted a hearing on October 15, 2018 on a criminal defendant’s motion to compel discovery to assure a fair and accurate cross-section of the community for the jury as guaranteed by the United States and Arkansas Constitutions. At the hearing, the jury coordinator for the Circuit Clerk’s office testified that counties may elect to use a state-sponsored jury selection computer program, or they may use proprietary programs. Washington County uses a proprietary computer program to select the jury pool from a list of registered voters. The clerk described how her office takes an extra step …

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 …

Ears Of The Deaf: The Theory And Reality Of Lay Judges In Mixed Tribunals, Sanja Kutnjak Ivković

Chicago-Kent Law Review

This paper explores mixed tribunals, a unique form of lay participation in which lay and professional judges make legal decisions jointly. A short overview of different types and sizes of mixed tribunals around the world will be discussed first. Then, the paper will elaborate on the theoretical arguments that hypothesize about the nature and extent of interaction in mixed tribunals. These theoretical arguments, developed using the status characteristics theory, will be assessed using the evidence obtained in empirical studies of mixed tribunals. In addition, the paper will discuss other potential challenges faced by mixed tribunals. In the end, the paper …

The American Jury System: A Synthetic Overview, Richard Lempert

Chicago-Kent Law Review

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 …

Four Models Of Jury Democracy, Jeffrey Abramson

Chicago-Kent Law Review

This article proposes a theory of “representative deliberation” to describe the democratic ideal that jurors seek to practice. Given its long history, the jury does not fit neatly into any one of the most familiar types of democracy, such as direct democracy, representative democracy, or deliberative democracy. However, the jury does hold together elements of all of these theories. In line with direct democracy, we select jurors from the people-at-large. In line with representative democracy, we seek to draw jurors from a representative cross-section of the community. In line with deliberative democracy, jurors talk as well as vote and seek …

Some Limitations Of Experimental Psychologists' Criticisms Of The American Trial, Robert P. Burns

Chicago-Kent Law Review

For decades, psychologists have conducted experiments that have suggested severe limitations on human cognitive capacities. Many have suggested that these results have important, and largely negative, consequences for an assessment of the reliability of the American trial. They have pointed persuasively at the disturbing number of exonerations of those convicted after trial. And some have gone on to make specific proposals for the incremental, and sometimes radical, changes in the conduct of the adversary trial. This essay places these studies, as forcefully presented by Professor Dan Simon, in a normative context, and argues that they are more powerful in suggesting …

Juror Bias, Voir Dire, And The Judge-Jury Relationship, Nancy S. Marder

Chicago-Kent Law Review

In the United States, voir dire is viewed as essential to selecting an impartial jury. Judges, lawyers, and the public fervently believe that a fair trial depends on distinguishing between prospective jurors who are impartial and those who are not. However, in England, Australia, and Canada, there are impartial jury trials without voir dire. This article challenges the assumption that prospective jurors enter the courtroom as either impartial or partial and that voir dire will reveal the impartial ones. Though voir dire fails as an “impartiality detector,” this article explores how voir dire contributes to the trial process in two …

Preventing Juror Misconduct In A Digital World, Thaddeus Hoffmeister

Chicago-Kent Law Review

This article examines the reform efforts employed by common law countries to address internet-related juror misconduct, which generally arises when jurors use technology to improperly research or discuss a case. The three specific areas of reform are (1) punishment, (2) oversight, and (3) education. The first measure can take various forms ranging from fines to public embarrassment to incarceration. The common theme with all punishments is that once imposed, they make citizens less inclined to want to serve as jurors. Therefore, penalties should be a last resort in preventing juror misconduct.

The second reform measure is oversight, which occurs in …

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 …

Group Agency And Legal Proof; Or, Why The Jury Is An “It”, Michael S. Pardo

William & Mary Law Review

Jurors decide whether certain facts have been proven according to the applicable legal standards. What is the relationship between the jury, as a collective decision-making body, on one hand, and the views of individual jurors, on the other? Is the jury merely the sum total of the individual views of its members? Or do juries possess properties and characteristics of agency (for example, beliefs, knowledge, preferences, intentions, plans, and actions) that are in some sense distinct from those of its members? This Article explores these questions and defends a conception of the jury as a group agent with agency that …

Diversity And The Civil Jury, Christina S. Carbone, Victoria C. Plaut

Victoria Plaut

No abstract provided.

Deselecting Biased Juries, Scott W. Howe

Utah Law Review

Critics of peremptory-challenge systems commonly contend that they inevitably inflict “inequality harm” on many excused persons and should be abolished. Ironically, the Supreme Court fueled this argument with its decision in Batson v. Kentucky by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach that preserved peremptories. This Article shows, however, that the central problem is something other than inequality harm to excused persons. The central problem is the harm to disadvantaged litigants when their opponents use peremptories to secure a one-sided jury. This problem can arise often—whenever a venire is slanted …

Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

The Jury And Participatory Democracy, Alexandra D. Lahav

William & Mary Law Review

No abstract provided.

Introduction: The Civil Jury As A Political Institution, Jason M. Solomon, Paula Hannaford-Agor

William & Mary Law Review

No abstract provided.

Jury Ignorance And Political Ignorance, Ilya Somin

William & Mary Law Review

No abstract provided.

Opening Remarks, Akhil Reed Amar

William & Mary Law Review

No abstract provided.

Fiduciary Principles And The Jury, Ethan J. Leib, Michael Serota, David L. Ponet

William & Mary Law Review

This Essay argues that because jurors exercise state authority with wide discretion over the legal and practical interests of other citizens, and because citizens repose trust and remain vulnerable to jury and juror decisions, juries and jurors share important similarities with traditional fiduciary actors such as doctors, lawyers, and corporate directors and boards. The paradigmatic fiduciary duties—those of loyalty and care—therefore provide useful benchmarks for evaluating and guiding jurors in their decisionmaking role. A sui generis public fiduciary duty of deliberative engagement also has applications in considering the obligations of jurors. This framework confirms much of what we know about …

Diversity And The Civil Jury, Christina S. Carbone, Victoria C. Plaut

William & Mary Law Review

No abstract provided.

Embedded Experts On Real Juries: A Delicate Balance, Shari Seidman Diamond, Mary R. Rose, Beth Murphy

William & Mary Law Review

“Experts” appear in the modern American courtroom on the jury as well as in the witness box, posing a dilemma for the legal system by offering a potentially valuable resource and an uncontrolled source of influence. Courts give ambiguous guidance to jurors on how they should handle their expertise in the deliberation room. On the one hand, jurors are told that they should “decide what the facts are from the evidence presented here in court.” By direct implication, then, jurors should not use outside information to evaluate the evidence. Jurors are also told, however, that they should “consider all of …

Political Decision Making By Informed Juries, William E. Nelson

William & Mary Law Review

No abstract provided.

An Exploration Of "Noneconomic" Damages In Civil Jury Awards, Herbert M. Kritzer, Guangya Liu, Neil Vidmar

William & Mary Law Review

No abstract provided.

Restoring The Civil Jury's Role In The Structure Of Our Government, Sheldon Whitehouse

William & Mary Law Review

No abstract provided.

The Jury As A Political Institution: An Internal Perspective, Robert P. Burns

William & Mary Law Review

In this Essay, I will briefly describe some of the more obvious ways in which the jury has been considered a political institution. I will then discuss the senses in which we can understand the term “political” in the context of the American jury trial. I will describe the senses in which Hannah Arendt, perhaps the most important political philosopher of the twentieth century, tried to distinguish between “the political” and the “the legal” and the limitations of any such distinction. I will then turn to the heart of this Essay, a description of the ways in which the American …

What's It Worth? Jury Damage Awards As Community Judgments, Valerie P. Hans

William & Mary Law Review

No abstract provided.

Juries As Regulators Of Last Resort, Stephan Landsman

William & Mary Law Review

No abstract provided.