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Articles 1 - 30 of 62
Full-Text Articles in Law
Sentencing Roulette: How Virginia’S Criminal Sentencing System Is Imposing An Unconstitutional Trial Penalty That Suppresses The Rights Of Criminal Defendants To A Jury Trial, Caleb R. Stone
Caleb R. Stone
No abstract provided.
Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus
Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus
Paul Marcus
No abstract provided.
Copyright Law’S Origin Stories, Laura A. Heymann
Copyright Law’S Origin Stories, Laura A. Heymann
Laura A. Heymann
No abstract provided.
The Silence Penalty, Jeffrey Bellin
The Silence Penalty, Jeffrey Bellin
Jeffrey Bellin
In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant’s prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence.
This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments—including the results of a new 400-person mock juror simulation conducted for this Article—and data from real trials. It concludes that the penalty defendants suffer when they refuse …
It's Still Too Easy To Push Blacks, Minorities Off Of Juries, Jeffrey Bellin
It's Still Too Easy To Push Blacks, Minorities Off Of Juries, Jeffrey Bellin
Jeffrey Bellin
No abstract provided.
Is Punishment Relevant After All? A Prescription For Informing Juries Of The Consequence Of Conviction, Jeffrey Bellin
Is Punishment Relevant After All? A Prescription For Informing Juries Of The Consequence Of Conviction, Jeffrey Bellin
Jeffrey Bellin
The American jury, once heralded as “the great corrective of law in its actual administration,” has suffered numerous setbacks in the modern era. As a result, jurors have largely become bystanders in a criminal justice system that relies on increasingly severe punishments to incarcerate tens of thousands of offenders each year. The overwhelming majority of cases are resolved short of trial and, even when trials occur, jurors are instructed to find only the facts necessary for legal guilt. Apart from this narrow task, jurors need not, in the eyes of the law, concern themselves with whether a conviction and subsequent …
Bargaining Inside The Black Box, Allison Orr Larsen
Bargaining Inside The Black Box, Allison Orr Larsen
Allison Orr Larsen
When jurors are presented with a menu of criminal verdict options and they cannot reach a consensus among them, what should they do? Available evidence suggests they are prone to compromise—that is, jurors will negotiate with each other and settle on a verdict in the middle, often on a lesser-included offense. The suggestion that jurors compromise is not new; it is supported by empirical evidence, well-accepted by courts and commentators, and unsurprising given the pressure jurors feel to reach agreement and the different individual views they likely hold. There are, however, some who say intrajury negotiation represents a failure of …
Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther
Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther
Edward Cheng
In this Symposium issue celebrating his career, Professor Michael Risinger in Leveraging Surprise proposes using "the fundamental emotion of surprise" as a way of measuring belief for purposes of legal proof. More specifically, Professor Risinger argues that we should not conceive of the burden of proof in terms of probabilities such as 51%, 95%, or even "beyond a reasonable doubt." Rather, the legal system should reference the threshold using "words of estimative surprise" -asking jurors how surprised they would be if the fact in question were not true. Toward this goal (and being averse to cardinality), he suggests categories such …
Introduction To Juries And Lay Participation: American Perspectives And Global Trends, Nancy S. Marder, Valerie P. Hans
Introduction To Juries And Lay Participation: American Perspectives And Global Trends, Nancy S. Marder, Valerie P. Hans
Valerie P. Hans
The jury in the United States is fraught with paradoxes. Even though the number of jury trials in the United States continues to decline, jury trials play a prominent role in American culture and continue to occupy headlines in newspapers and top stories on television. Americans might not always agree with the verdict that any given jury renders, but they continue to express their support for the jury system in poll after poll. This Symposium of the Chicago-Kent Law Review presents new theories and research, with a focus on the contemporary American jury. The Introduction begins by connecting discussions at …
Legal Interpreter For The Jury: The Role Of The Clerk Of The Court In Spain, Mar Jimeno-Bulnes, Valerie P. Hans
Legal Interpreter For The Jury: The Role Of The Clerk Of The Court In Spain, Mar Jimeno-Bulnes, Valerie P. Hans
Valerie P. Hans
The Clerk of the Court (secretario judicial) in Spanish provincial courts is an important legal actor in the proceedings of the modern Spanish jury, introduced in 1995. In contrast to the general verdicts of traditional common-law juries, Spanish juries must answer an often lengthy list of specific questions, and must provide the reasoning supporting these responses. Early on, many Spanish juries found the task of providing legally acceptable responses and reasons challenging. Because the law permits the clerk to enter the deliberation room to assist the jury in its writing of the verdict, the clerk has come to act as …
Introduction To Juries And Mixed Tribunals Across The Globe: New Developments, Common Challenges And Future Directions, Nancy S. Marder, Valerie P. Hans
Introduction To Juries And Mixed Tribunals Across The Globe: New Developments, Common Challenges And Future Directions, Nancy S. Marder, Valerie P. Hans
Valerie P. Hans
This introduction to the special issue of Oñati Socio-legal Series describes the goals of the conference on Juries and Mixed Tribunals across the Globe, and identifies themes that emerged as jury scholars from all over the world examined different forms of lay participation in legal decision-making. The introduction focuses on common challenges that different systems of lay participation face, including the selection of impartial fact finders and the presentation of complex cases to lay citizens. The introduction and special issue articles also highlight new developments and innovative practices to address these challenges, including some tools, like decision trees, that remain …
Writing Better Jury Instructions: Antitrust As An Example, Joshua P. Davis, Shannon Wheatman, Cristen Stephansky
Writing Better Jury Instructions: Antitrust As An Example, Joshua P. Davis, Shannon Wheatman, Cristen Stephansky
Joshua P. Davis
Investigating Jurors On Social Media, Caren Myers Morrison
Investigating Jurors On Social Media, Caren Myers Morrison
Caren Myers Morrison
This essay proceeds in three parts. First, it examines the current state of jury investigations, and how they differ from those conducted in the past. Then, it describes the evolving legal and ethical positions that are combining to encourage such investigations. Finally, it offers a note of caution–condoning such investigations while keeping them hidden from jurors may be perceived as unfair and exploitative, risking a possible backlash from outraged jurors. Instead, I propose a modest measure to provide notice and explanation to jurors that their online information is likely to be searched, and why.
Judge-Jury Agreement In Criminal Cases: A Partial Replication Of Kalven And Zeisel's The American Jury, Theodore Eisenberg, Paula L. Hannaford-Agor, Valerie P. Hans, Nicole L. Waters, G. Thomas Munsterman, Stewart J. Schwab, Martin T. Wells
Judge-Jury Agreement In Criminal Cases: A Partial Replication Of Kalven And Zeisel's The American Jury, Theodore Eisenberg, Paula L. Hannaford-Agor, Valerie P. Hans, Nicole L. Waters, G. Thomas Munsterman, Stewart J. Schwab, Martin T. Wells
Valerie P. Hans
This study uses a new criminal case data set to partially replicate Kalven and Zeisel's classic study of judge-jury agreement. The data show essentially the same rate of judge-jury agreement as did Kalven and Zeisel for cases tried almost 50 years ago. This study also explores judge-jury agreement as a function of evidentiary strength (as reported by both judges and juries), evidentiary complexity (as reported by both judges and juries), legal complexity (as reported by judges), and locale. Regardless of which adjudicator's view of evidentiary strength is used, judges tend to convict more than juries in cases of "middle" evidentiary …
Special Feature: The Future Of Lay Adjudication In Korea And Japan, Hiroshi Fukurai, Valerie P. Hans
Special Feature: The Future Of Lay Adjudication In Korea And Japan, Hiroshi Fukurai, Valerie P. Hans
Valerie P. Hans
Three years after Korea introduced the jury system for the first time in its history, and two years following the Japanese introduction of a mixed court in which citizen and professional judges decide serious criminal cases, the Second East Asian Law and Society Conference was held on September 30th and October 1st, 2011 in the vibrant city of Seoul, South Korea. This Special Issue of the Yonsei Law Journal offers an opportunity to present work on some of the key issues that were discussed and debated at this remarkable conference. In particular, the special issue offers new research on the …
Japan's New Lay Judge System: Deliberative Democracy In Action?, Zachary Corey, Valerie P. Hans
Japan's New Lay Judge System: Deliberative Democracy In Action?, Zachary Corey, Valerie P. Hans
Valerie P. Hans
No abstract provided.
Diversity And The Civil Jury, Christina S. Carbone, Victoria C. Plaut
Diversity And The Civil Jury, Christina S. Carbone, Victoria C. Plaut
Victoria Plaut
No abstract provided.
The Decision To Award Punitive Damages: An Empirical Study, Theodore Eisenberg, Michael Heise, Nicole L. Waters, Martin T. Wells
The Decision To Award Punitive Damages: An Empirical Study, Theodore Eisenberg, Michael Heise, Nicole L. Waters, Martin T. Wells
Michael Heise
Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about 3 to 5 percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were …
Judge-Jury Agreement In Criminal Cases: A Partial Replication Of Kalven And Zeisel's The American Jury, Theodore Eisenberg, Paula L. Hannaford-Agor, Valerie P. Hans, Nicole L. Waters, G. Thomas Munsterman, Stewart J. Schwab, Martin T. Wells
Judge-Jury Agreement In Criminal Cases: A Partial Replication Of Kalven And Zeisel's The American Jury, Theodore Eisenberg, Paula L. Hannaford-Agor, Valerie P. Hans, Nicole L. Waters, G. Thomas Munsterman, Stewart J. Schwab, Martin T. Wells
Stewart J Schwab
This study uses a new criminal case data set to partially replicate Kalven and Zeisel's classic study of judge-jury agreement. The data show essentially the same rate of judge-jury agreement as did Kalven and Zeisel for cases tried almost 50 years ago. This study also explores judge-jury agreement as a function of evidentiary strength (as reported by both judges and juries), evidentiary complexity (as reported by both judges and juries), legal complexity (as reported by judges), and locale. Regardless of which adjudicator's view of evidentiary strength is used, judges tend to convict more than juries in cases of "middle" evidentiary …
Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski
Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
No abstract provided.
Scientific Jury Selection And The Equal Protection Rights Of Venire Persons, Jeffrey J. Rachlinski
Scientific Jury Selection And The Equal Protection Rights Of Venire Persons, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
Jury trials have always been a source of anxiety for litigators. Despite years of preparation, the outcome of a case can turn on the whimsical biases of a group of people who may or may not understand the legal arguments involved. In recent years, attorneys have taken steps to reduce this uncertainty by hiring social scientists who study jury decision making. One of the most popular services which these consultants offer is assistance in the jury selection process. The use of sociological and psychological methods in identifying and excluding unfavorable jurors from service, known as Scientific Jury Selection ("SJS"), has …
Heuristics And Biases In The Court: Ignorance Or Adaptation?, Jeffrey J. Rachlinski
Heuristics And Biases In The Court: Ignorance Or Adaptation?, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
No abstract provided.
Reflections On The Korean Jury Trial, Valerie P. Hans
Reflections On The Korean Jury Trial, Valerie P. Hans
Valerie P. Hans
You Can't Handle The Truth! Trial Juries And Credibility, Renée Hutchins
You Can't Handle The Truth! Trial Juries And Credibility, Renée Hutchins
Renée M. Hutchins
Every now and again, we get a look, usually no more than a glimpse, at how the justice system really works. What we see—before the sanitizing curtain is drawn abruptly down—is a process full of human fallibility and error, sometimes noble, more often unfair, rarely evil but frequently unequal. The central question, vital to our adjudicative model, is: How well can we expect a jury to determine credibility through the ordinary adversary processes of live testimony and vigorous impeachment? The answer, from all I have been able to see is: not very well.
Solving Batson, Tania Tetlow
Solving Batson, Tania Tetlow
Tania Tetlow
The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Kentucky. It could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant’s Sixth Amendment right to an “impartial jury” drawn from a fair cross-section of the community. By choosing Equal Protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system and instead focused on protecting potential jurors. The Court thus built fatal error into the Batson rule, a …
Why Don't Juries Try Range Voting?, F.E. Guerra-Pujol
Why Don't Juries Try Range Voting?, F.E. Guerra-Pujol
F.E. Guerra-Pujol
In this paper, the author proposes the use of a simple “range voting” method by juries in which jurors would rate or score on a scale of zero to ten (or some other specified scale) the evidence presented by the parties at trial. The jury’s verdict would thus consist of a numerical value, either the average or the sum total of all the individual scores, which the author refers to as a “range verdict.” Range voting by juries thus produces a numerical verdict, a range verdict, consisting of an average value or total sum, and a plaintiff or other moving …
Holmes And The Common Law: A Jury's Duty, Matthew P. Cline
Holmes And The Common Law: A Jury's Duty, Matthew P. Cline
Matthew P Cline
The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides …
Booth V. Maryland, Insights Into The Contemporary Challenges To Judging, Joan M. Shaughnessy
Booth V. Maryland, Insights Into The Contemporary Challenges To Judging, Joan M. Shaughnessy
Joan M. Shaughnessy
No abstract provided.
Direct Republicanism In The Administrative Process, David J. Arkush
Direct Republicanism In The Administrative Process, David J. Arkush
David J. Arkush
This Article offers a new response to an old problem in administrative law: how to secure sound, democratically legitimate policies from unelected regulators. The question stems from a principal-agent problem inherent in representative forms of government—the possibility that government officials will not act in the public’s best interests—and it is rarely absent from legal and policy debates. Major regulatory failures and the government’s responses to them have renewed its significance in recent years, as agencies implement new laws and adapt old ones, courts review their actions, and the White House and Congress debate proposals for regulatory reform.
Traditional models of …
The Precedent Value Of Conclusions Of Fact In Civil Cases In England And Louisiana, David Robertson
The Precedent Value Of Conclusions Of Fact In Civil Cases In England And Louisiana, David Robertson
Dr David Robertson
No abstract provided.