Law Commons^™

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Nancy Welsh

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

Casting Aspersions In Patent Trials, Daniel Harris Brean, Bryan P. Clark

Daniel Harris Brean

Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Jury Consideration Of Parole, Fernand N. Dutile

Fernand "Tex" N. Dutile

No abstract provided.

The Effect Of Lifting The Blindfold From Civil Juries Charged With Apportioning Damages In Modified Comparative Fault Cases: An Empirical Study Of The Alternatives, Jordan Leibman, Robert Bennett, Richard Fetter

Robert B. Bennett

Focuses on a study on the effect of lifting the blindfold from civil juries charged with apportioning damages in modified comparative fault cases. Historical background on comparative fault in the United States; Origin of blindfolding; Comparison of blindfold modified comparative fault verdicts with sunshine verdicts; Conclusions.

The French Case For Requiring Juries To Give Reasons. Safeguarding Defendants Or Guarding The Judges?, Mathilde Cohen

Mathilde Cohen

The Jury's Role In Deciding Normative Issues In The American Common Law, Mark P. Gergen

Mark P. Gergen

No abstract provided.

The Jury’S Response To Business And Corporate Wrongdoing, Valerie P. Hans

Valerie P. Hans

No abstract provided.

Cognitive Fallacies Reading List, Curtis E.A. Karnow

Curtis E.A. Karnow

Reading list of books, articles, reports, and other material relating to cognitive fallacies, i.e., errors in reasoning which affect us all, including lawyers and judges. These errors in turn affect lawyers’ competence and judges’ ability to provide fair, impartial and well-reasoned decisions.

Trial By Jury Or Judge: Transcending Empiricism , Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

No abstract provided.

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The , James L. Kainen

James L. Kainen

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

Pennsylvanians' Right To Trial By Jury In Peril? The Tale Of Three Appeals, Thomas J. Foley Iii

Thomas J Foley III

No abstract provided.

Apple-Samsung Jury Foreman Says Google E-Mail Persuasive (Quotes: Mark Mckenna) Bloomberg/Businessweek, Mark Mckenna

Mark P. McKenna

Apple-Samsung Jury Foreman Says Google E-Mail Persuasive article by Joel Rosenblatt, Karen Gullo and Douglas MacMillan quotes Mark McKenna in Bloomberg/Businessweek, Aug 26, 201. “I could imagine him being very useful to the other jurors as long as he’s not trying to dominate the jury room,” said Mark McKenna, a University of Notre Dame Law School professor, in an interview before the verdict. “It could be the case that because this guy has a lot of expertise that a lot of jurors defer a lot of specific questions to him.” Hogan’s patent isn’t the same type as those covering software …

Localism And Capital Punishment, Stephen F. Smith

Stephen F. Smith

Professor Adam Gershowitz presents an interesting proposal to transfer from localities to states the power to enforce the death penalty. In his view, state-level enforcement would result in a more rationally applied death penalty because states would be much more likely to make capital charging decisions based on desert, without the distorting influence of the severe resource constraints applicable to all but the wealthiest of localities. As well conceived as Professor Gershowitz’s proposal is, however, I remain skeptical that statewide enforcement of the death penalty would be preferable to continued local enforcement. First, Professor Gershowitz underestimates the benefits of localism …

Who’S Who In The Legal Zoo: The Jury, Jodie O'Leary

Jodie O'Leary

Extract: Juries have been portrayed in movies, such as The Juror and the much earlier 12 Angry Men, depicted in books (particularly by John Grisham), such as The Last Juror or Runaway Jury, and featured in television programs like Law and Order. Most of us in the common law world know someone who served on one (or at least got a notice to attend jury duty). But what do you really know about this institution that has been described as ‘the lamp that shows that freedom lives’ or the ‘sacred bulwark’ of liberty?

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 …

The Jury As Constitutional Identity, Andrew G. Ferguson

Andrew G Ferguson

This article seeks to re-conceptualize jury service in America. It suggests a new theory that looks at jury service not as a discrete task, but an on-going constitutional identity. Building off a historical tradition that dates from the Founding, but can be traced through the Suffrage Movement and the Civil Rights Era, this theory focuses on reclaiming the lost constitutional connection of jury service.

Juries once existed at the core of American constitutional identity. At the founding of the country, jury service and voting were twin political rights, equal in stature and importance. Some founders even considered the jury more …

Defying Dna: Rethinking The Role Of The Jury In An Age Of Scientific Proof Of Innocence, Andrea L. Roth

Andrea L Roth

In 1946, public outrage erupted after a jury ordered Charlie Chaplin to support a child who, according to apparently definitive blood tests, was not his. Half a century later, juries have again defied apparently definitive evidence of innocence, finding criminal defendants guilty based on a confession or eyewitness notwithstanding exculpatory DNA test results. One might expect judges in such cases to direct an acquittal, on grounds that the evidence is legally insufficient because no rational juror could find guilt beyond a reasonable doubt. Yet few if any do. Instead, courts defer to juries when they form an actual belief in …

E-Jurors:A View From The Bench, Judge Antoinette Plogstedt

Judge Antoinette Plogstedt

E-JURORS: A View From the Bench

Electronic jurors pose new twists to an old problem. With emerging technology in mobile devices, social media, and internet research, juror misconduct exists in new shapes and forms. Many jurisdictions have made attempts to curb electronic misconduct by modifying standard jury instruction and confiscating juror cell phones. Some judges have implemented jury instructions which remind jurors to refrain from communicating about the case and conducting on-line research. However, their efforts fall short. In previous literature, practicioners, students and a few scholars have offered suggestions on modifying jury instructions to better inform jurors of prohibited …

Jury Nullification In Modified Comparative Negligence Regimes, Eli K. Best, John J. Donohue

John Donohue

This Article analyzes jury findings from nearly one thousand negligence suits to determine whether juries in modified comparative negligence jurisdictions apportion percentages of negligence differently than juries in pure comparative negligence jurisdictions. We find that juries in modified comparative negligence jurisdictions are substantially less likely to find that a plaintiff was more than 50 percent negligent. This evidence of jury manipulation strengthens the case for pure comparative negligence, which we argue is already superior on theoretical and policy grounds.

A Theory Of The Perverse Verdict, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

The concept of a perverse verdict is one that pervades the Criminal justice system of nearly all common law jurisdictions. The English Criminal Justice system is no exception and the concept has become institutionalised as if it were a true occurrence. This paper challenges the idea and argues that it is, technically, a legal non-event given the system of trial by jury. The theory is that besides the jury, no one else is invested with the power and authority to declare a verdict and this position is supported both by legal custom and the mechanism of the criminal justice system. …

Should Juries Be Informed That Municipality Will Indemnify Officer’S 1983 Liability For Constitutional Wrongdoing?, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Jury Selection And The Coase Theorem, Dru Stevenson

Dru Stevenson

The thesis of this article is that jury selection is unique among the components of the litigation process, in that zero negotiation or bargaining occurs between the parties over the substantive or procedural events that unfold – despite the absence of any prohibitions on such negotiation. This lack of bargaining is particularly striking given that the litigants are in the same room, where they could discuss things face to face. Negotiation, whether over the ultimate outcome or over specific issues within the case, pervades every other segment of litigation, from the pre-filing phase until after the verdict. It is therefore …

Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew Taslitz

Andrew E. Taslitz

Abstract The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available …

The Hidden Legacy Of Palsgraf: A Survey Of Modern Duty Law, W. Jonathan Cardi

W. Jonathan Cardi

The elements of the debate between Justices Cardozo and Andrews in Palsgraf are canonical: (1) What is the nature of duty—is it relational or act-centered?; (2) Is plaintiff-foreseeability a duty inquiry or an aspect of proximate cause?; (3) Is court or jury the proper arbiter of foreseeability? An exhaustive examination of the case law on these questions reveals a deep disconnect between what most of us learned in law school and what is playing out in modern courts. Close scrutiny of Palsgraf’s present-day incarnations also lends an invaluable birds-eye view of duty law, an area so rife with inconsistency and …

Seeing Is Believing; Or Is It? An Emperical Study Of Computer Simulations As Evidence., Robert B. Bennett, Jordan H. Leibman, Richard Fetter

Robert B. Bennett

Relying on the old adage, "seeing is believing," we conclude that the jury may give undue weight to an animated reconstruction of the accident .... It would be an inordinately difficult task for the plaintiff to counter, by cross-examination or otherwise, the impression that a computerized depiction of the accident is necessarily more accurate than an oral description of how the accident occurred. Because the expert's conclusion would be graphically depicted in a moving and animated form, the viewing of the computer simulation might more readily lead the jury to accept the data and premises underlying the defendant's expert's opinion... …

Jurors In The Digital Age, Thaddeus Hoffmeister

Thaddeus Hoffmeister

ABSTRACT: Improper use of new technology by jurors inside and outside the courtroom has become so pervasive that commentators have coined new phrases to describe it: “Google Mistrials,” the “Twitter Effect,” and “Internet-Tainted Jurors.” Yet, despite the attention garnered, few legal scholars, to date, have examined this area in-depth. The articles addressing this topic primarily focus on the benefits of technology and how to harness it to aid in juror comprehension. This dearth of legal scholarship may be due in large part to the fact that the Digital Age is fairly new and still evolving and juror misconduct is historically …

Restoring The Founders’ Ideal Of The Independent Jury In Criminal Cases, Thomas Regnier

Thomas Regnier

The framers of the American government strongly believed in a jury that could “decide both law and fact” in criminal cases. This belief was based on two insights that were better understood in the founding era than they are today: (1) When the government is a party to a judicial proceeding, as in a criminal case, it is a conflict of interest for the judge, a government employee, to be the final arbiter of the law. The judge was to advise the jury on the law, but the jury was not bound by his advice. This insight goes back to …

Korean Jury Trial: Has The New System Brought About Changes?, Jae-Hyup Lee

Jae-Hyup Lee

This paper describes the major driving forces behind the introduction of the jury system in Korea and general expectations the new system was meant to bring about. It seeks to determine whether the expected changes are actually occurring, what kinds of problems have arisen, and what implications can be drawn for the future based on the first two years of jury trial operations. Data for this study was drawn from statistics collected by the National Court Administration and the author’s own observations of the trials, as well as interviews with the presiding judges of the jury trials.