Law Commons^™

Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins

Faculty Publications

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a …

Peer Review: Navigating Uncertainty In The United States Jury System, Anna Offit

Faculty Journal Articles and Book Chapters

This Article examines American prosecutors’ approaches to uncertainty during voir dire. At different points during trial preparation— and during jury selection itself—lawyers draw on multiple interpretive systems to make sense of ordinary citizens. Taking Assistant United States Attorneys in a federal jurisdiction in the Northeast United States as a case study, and drawing on ethnographic research, I focus on three systems prosecutors alternately (and sometimes simultaneously) use to evaluate jurors: (1) probabilistic and evaluative analogies, (2) juror-types generated from the details of criminal cases, and (3) local knowledge stemming from prosecutors’ relationships and experiences outside of the courtroom. I show …

Lights Hidden Under Bushel's Case, Thomas A. Green

Book Chapters

Some forty years ago, Charlie Donahue created a course which he titled "Law, Morals and Society." Designed for undergraduates, and situated among the offerings of the University of Michigan's interdisciplinary Medieval and Renaissance Collegium, the course reflected the approach to doing history that, as this volume recognizes, Charlie has followed throughout his long and enormously influential career as scholar, teacher, lecturer, and inepressible master of well-timed interventions during conference-panel discussion periods. "LMS" was composed of four units. Charlie, who taught two of them, led off with the legal basis for the deposition of Richard II; I followed with the law …

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 …

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 …

Introduction To Juries And Lay Participation: American Perspectives And Global Trends, Nancy S. Marder, Valerie P. Hans

Cornell Law Faculty Publications

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 …

All Together Now: Using Principles Of Group Dynamics To Train Better Jurors, Sara Gordon

Scholarly Works

We ask juries to make important decisions that have a profound impact on people’s lives. We leave these decisions in the hands of groups of laypeople because we hope that the diverse range of experiences and knowledge in the group will lead to more thoughtful and informed decisionmaking. Studies suggest that diverse groups of jurors have different perspectives on evidence, engage in more thorough debate, and more closely evaluate facts. At the same time, there are a variety of problems associated with group decisionmaking, from the loss of individual motivation in group settings, to the vulnerability of groups to various …

The Jury And Criminal Responsibility In Anglo-American History, Thomas A. Green

Articles

Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application of conventional morality to criminal judgments—and the formal rule of law of the state. My central intent is to pose questions …

Reflections On The Korean Jury Trial, Valerie P. Hans

Cornell Law Faculty Publications

Korea's experience with its new jury system offers many lessons for those interested in juries and jury reform worldwide. Aiming for a unique jury system that was ideally suited to Korean citizens and their legal system, those who crafted Korea's jury incorporated elements of both classic jury systems and mixed tribunals. Initially, the jury deliberates on guilt independently of the judge, but the procedure includes optional as well as mandatory opportunities for the presiding judge to advise the jury during its deliberation. The Korean jury delivers an advisory rather than binding jury verdict. These and other features of the Korean …

The Demographic Dilemma In Death Qualification Of Capital Jurors, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Juries, Social Norms, And Civil Justice, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.

This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article …

Trial And Settlement: A Study Of High-Low Agreements, J. J. Prescott, Kathryn E. Spier, Albert Yoon

Articles

This article presents the first systematic theoretical and empirical study of highlow agreements in civil litigation. A high-low agreement is a private contract that, if signed by litigants before trial, constrains any plaintiff’s recovery to a specified range. In our theoretical model, trial is both costly and risky. When litigants have divergent subjective beliefs and are mutually optimistic about their trial prospects, cases may fail to settle. In these cases, high-low agreements can be in litigants’ mutual interest because they limit the risk of outlier awards while still allowing mutually beneficial speculation. Using claims data from a national insurance company, …

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

Cornell Law Faculty Publications

No abstract provided.

Gideon V. Wainwright A Half Century Later, Yale Kamisar

Reviews

When he was nearing the end of his distinguished career, one of my former law professors observed that a dramatic story of a specific case "has the same advantages that a play or a novel has over a general discussion of ethics or political theory." Ms. Houppert illustrates this point in her very first chapter.

You Can't Handle The Truth! Trial Juries And Credibility, Renée M. Hutchins

Faculty Scholarship

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.

Juries, Lay Judges, And Trials, Toby S. Goldbach, Valerie P. Hans

Cornell Law Faculty Working Papers

“Juries, Lay Judges, and Trials” describes the widespread practice of including ordinary citizens as legal decision makers in the criminal trial. In some countries, lay persons serve as jurors and determine the guilt and occasionally the punishment of the accused. In others, citizens decide cases together with professional judges in mixed decision-making bodies. What is more, a number of countries have introduced or reintroduced systems employing juries or lay judges, often as part of comprehensive reform in emerging democracies. Becoming familiar with the job of the juror or lay citizen in a criminal trial is thus essential for understanding contemporary …

The Death Of Inference, Andrew S. Pollis

Faculty Publications

This Article examines a disturbing trend in civil litigation: the demise of the jury’s historic prerogative to draw inferences from circumstantial evidence. Judges have arrogated to themselves the power to dismiss cases if they find the proffered inferenc

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal …

What Jurors Want To Know: Motivating Juror Cognition To Increase Legal Knowledge & Improve Decisionmaking, Sara Gordon

Scholarly Works

What do jurors want to know? Jury research tells us that jurors want to understand the information they hear in a trial so they can reach the correct decision. But like all people, jurors who are asked to analyze information in a trial—even jurors who consciously want to reach a fair and accurate verdict—are unconsciously influenced by their internal goals and motivations. Some of these motives are specific to individual jurors; for instance, a potential juror with a financial interest in a case would be excluded from the jury pool. But other motivations, like the motive to understand the law …

Tort As A Substitute For Revenge, Scott Hershovitz

Book Chapters

In 1872, the Supreme Court of Illinois decided a case called Alcorn v Mitchell. It was not the first litigation between the parties. Some years earlier, Alcorn had sued Mitchell for trespass. That suit did not go well, and at the close of the trial, just after the court adjourned, Alcorn spit in Mitchell’s face. Mitchell then turned the tables and sued Alcorn for battery. He won a judgment for $1,000, which was a lot of money back then—depending on how you think about the change in value of money over time, the present day equivalent would range from just …

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on …

Trial By Preview, Bert I. Huang

Faculty Scholarship

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the parties to settle; why incur the expenses of trial, if everyone knows what will happen? Rarely noted, however, is one complication: The impact of previewing the evidence is intertwined with how well the parties know their future audience-that is, the judge or the jury who will be the finder …

The Political Puzzle Of The Civil Jury, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates over the civil justice or tort system—debates over punitive damages, preemption, and tort reform more broadly—are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.

The debate over the jury—in both the academic literature and the …

Special Feature: The Future Of Lay Adjudication In Korea And Japan, Hiroshi Fukurai, Valerie P. Hans

Cornell Law Faculty Publications

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 …

Coming To Terms With The Uniform Probate Code's Reformation Of Wills, Wayne M. Gazur

Publications

No abstract provided.

"Bad Juror" Lists And The Prosecutor's Duty To Disclose, Ira Robbins

Articles in Law Reviews & Other Academic Journals

Prosecutors sometimes use what are known as "bad juror" lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant's right to be tried by a jury of his or her peers, but it also violates potential jurors' rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts. This Article addresses the prosecutor's duty to disclose bad-juror lists. It reviews the federal …

Information Lost And Found, Frederic M. Bloom

Publications

At the core of every lawsuit is a mix of information-revealing documents that chronicle a party's malfeasance, guarded memos that outline a lawyer's trial strategy, fading memories that recall a jury's key mistakes. Yet the law's system for managing that information is still poorly understood. This Article makes new and better sense of that system. It begins with an original examination of five pieces of our civil information architecture--evidence tampering rules, automatic disclosure requirements, work product doctrine, peremptory challenge law, and bans on juror testimony--and compiles a novel study of how those doctrines intersect and overlap. It then fits these …

The Missing Jury: The Neglected Role Of Juries In Eighth Amendment Punishments Clause Determinations, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants’ constitutional rights, are more likely to impose harsher punishments than jurors. This may be unsettling in its own right, but it is especially concerning because judges are the individuals charged with determining whether punishments are unconstitutionally cruel and unusual under the Eighth Amendment, and these determinations are supposed to be based on “the evolving standards of decency that mark the progress of a maturing society.” The study suggests that judges are out of step with society’s moral norms, …

Representation Through Participation: A Multilevel Analysis Of Jury Deliberations, Erin York Cornwell, Valerie P. Hans

Cornell Law Faculty Publications

Fully participatory jury deliberations figure prominently in the idealized view of the American jury system, where balanced participation among diverse jurors leads to more accurate fact-finding and instills public confidence in the legal system. However, research more than 50 years ago indicated that jury-room interactions are shaped by social status, with upper-class men participating more than their lower-class and female counterparts. The effects of social status on juror participation have been examined only sporadically since then, and rarely with actual jurors. We utilize data from 2,189 criminal jurors serving on 302 juries in four jurisdictions to consider whether—and in what …

Bargaining Inside The Black Box, Allison Orr Larsen

Faculty Publications

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 …