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Jury trials

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Full-Text Articles in Law

The Administrative State's Jury Problem, Richard Lorren Jolly Dec 2023

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 Dec 2020

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 May 2020

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 Mar 2020

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 Failure Of The Criminal Procedure Revolution, William T. Pizzi Jan 2020

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

Publications

No abstract provided.


Foster V. Chatman: A Missed Opportunity For Batson And The Peremptory Challenge, Nancy Marder May 2017

Foster V. Chatman: A Missed Opportunity For Batson And The Peremptory Challenge, Nancy Marder

All Faculty Scholarship

In 2016, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way …


Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas Aug 2016

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …


Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi Jan 2016

Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi

Publications

No abstract provided.


Amicus Brief: Kumho Tire V. Carmichael, Neil Vidmar, Richard Lempert, Shari Diamond, Valerie Hans, Stephan Landsman, Robert Maccoun, Joseph Sanders, Harmon Hosch, Saul Kassin, Marc Galanter, Theodore Eisenberg, Stephen Daniels, Edith Greene, Joanne Martin, Steven Penrod, James Richardson, Larry Heuer, Irwin Horowitz Dec 2015

Amicus Brief: Kumho Tire V. Carmichael, Neil Vidmar, Richard Lempert, Shari Diamond, Valerie Hans, Stephan Landsman, Robert Maccoun, Joseph Sanders, Harmon Hosch, Saul Kassin, Marc Galanter, Theodore Eisenberg, Stephen Daniels, Edith Greene, Joanne Martin, Steven Penrod, James Richardson, Larry Heuer, Irwin Horowitz

Robert MacCoun

This brief addresses the issue of jury performance and jury responses to expert testimony. It reviews and summaries a substantial body of research evidence about jury behavior that has been produced over the past quarter century. The great weight of that evidence challenges the view that jurors abdicate their responsibilities as fact finders when faced with expert evidence or that they are pro-plaintiff, anti-defendant, and anti-business.

The Petitioners and amici on behalf of petitioners make a number of overlapping, but empirically unsupported, assertions about jury behavior in response to expert testimony, namely that juries are frequently incapable of critically evaluation …


The Jury's Political Role: "To See With Their Own Eyes", Valerie P. Hans Jun 2015

The Jury's Political Role: "To See With Their Own Eyes", Valerie P. Hans

Valerie P. Hans

Under what circumstances, if any, is it right for juries to ignore the dictates of law in arriving at their verdicts? The political role of the jury has come into the spotlight recently. Legal scholars have labeled as "jury nullification" the refusal of juries to apply the law when they believe that to follow the letter of the law would result in injustice. Jury nullification is actually a form of jury equity, the practice of deciding cases in line with community notions of justice and fairness. On May 17, 1985, a jury acquitted eight anti-apartheid demonstrators charged with trespassing at …


Ex Ante Choice Of Jury Waiver Clauses In Mergers, Darius Palia, Robert E. Scott Jan 2015

Ex Ante Choice Of Jury Waiver Clauses In Mergers, Darius Palia, Robert E. Scott

Faculty Scholarship

This paper examines empirically why sophisticated parties in some merger and acquisition deals choose to waive their right to jury trials and some do not. We examine merger agreements for a large sample of 276 deals for the 11-year period 2001 to 2011. We exclude private company deals and those where the choice of forum and law is Delaware. First, we find that 48.2% of the deals have jury waiver clauses. Second, we find that deals in which New York is chosen as the governing law and forum state are more likely to include a jury waiver clause. No other …


Anti-Plaintiff Bias In The Federal Appellate Courts, Kevin M. Clermont, Theodore Eisenberg Dec 2014

Anti-Plaintiff Bias In The Federal Appellate Courts, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

A recent study of appellate outcomes reveals that defendants succeed significantly more often than plaintiffs on appeal from civil trials-especially from jury trials.


Appeal From Jury Or Judge Trial: Defendants' Advantage, Kevin M. Clermont, Theodore Eisenberg Dec 2014

Appeal From Jury Or Judge Trial: Defendants' Advantage, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

The prevailing "expert" opinion is that jury verdicts are largely immune to appellate revision. Using a database that combines all federal civil trials and appeals decided since 1988, we find that jury trials, as a group, are in fact not so special on appeal. But the data do show that defendants succeed more than plaintiffs on appeal from civil trials, and especially from jury trials. Defendants appealing their losses after trial by jury obtain reversals at a 31% rate, while losing plaintiffs succeed in only 13% of their appeals from jury trials. Both descriptive analyses of the results and more …


Trial By Jury Or Judge: Which Is Speedier?, Theodore Eisenberg, Kevin Clermont Dec 2014

Trial By Jury Or Judge: Which Is Speedier?, Theodore Eisenberg, Kevin Clermont

Kevin M. Clermont

Many take as a given that jury-tried cases consume more time than judge-tried cases. Judge Richard Posner of the Seventh Circuit, for example, opines: “Court queues are almost always greatest for parties seeking civil jury trials. This makes economic sense. Such trials are more costly than bench trials both because of jury fees (which … understate the true social costs of the jury) and because a case normally takes longer to try to a jury than to a judge …. Parties are therefore “charged” more for jury trials by being made to wait in line longer.” A close reading reveals …


Trial By Jury Or Judge: Transcending Empiricism, Kevin M. Clermont, Theodore Eisenberg Dec 2014

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

Kevin M. Clermont

Pity the civil jury, seen by some as the sickest organ of a sick system. Yet the jury has always been controversial. One might suppose that, with so much at stake for so long, we would all know a lot about the ways juries differ from judges in their behavior. In fact, we know remarkably little. This Article provides the first large-scale comparison of plaintiff win rates and recoveries in civil cases tried before juries and judges. In two of the most controversial areas of modern tort law--product liability and medical malpractice--the win rates substantially differ from other cases' win …


Pragmatism Applied: Imagining A Solution To The Problem Of Court Congestion, Michael L. Seigel Dec 2014

Pragmatism Applied: Imagining A Solution To The Problem Of Court Congestion, Michael L. Seigel

Michael L Seigel

Can we improve the efficiency of jury trials? If so, would this reduce the problem of court congestion? Is there any reason to favor this approach over those that seek to avoid jury trials altogether? This Article attempts to answer these difficult questions. It does so by articulating and then employing a methodology suggested by recent scholarly ruminations about the philosophy of pragmatism and its implications for legal scholarship and practice. Although pragmatism does not provide "right answers" to questions of legal doctrine-indeed, it rejects the notion that such things exist-it does provide some guidance in formulating the search for …


The Decline Of Civil Jury Trials: A Positive Development, Myth, Or The End Of Justice As We Now Know It?, Xavier Rodriguez Jan 2014

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 Feb 2013

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 …


Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun Feb 2013

Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun

Daniel M Braun

In this new Millennium -- an era of increasingly complex cases -- it is critical that lawyers keep a keen eye on trial strategy and tactics. Although scientific evidence today is more sophisticated than ever, the art of effectively engaging people and personalities remains prime. Scientific data must be contextualized and presented in absorbable ways, and attorneys need to ensure not only that they correctly understand jurors, judges, witnesses, and accused persons, but also that they find the means to make their arguments truly resonate if they are to formulate an effective case and ultimately realize justice. A decades-old case …


Prime Time For Japan To Take Another Step Forward In Lay Participation: Exploring Expansion To Civil Trials, Matthew J. Wilson Jun 2012

Prime Time For Japan To Take Another Step Forward In Lay Participation: Exploring Expansion To Civil Trials, Matthew J. Wilson

Matthew J. Wilson

As juries in the U.S. and other parts of the world have increasingly come under attack, many countries in Asia have recently turned to juries or quasi-juries in an effort to enhance judicial credibility, ensure justice, facilitate civic engagement, and even stimulate economic reform and recovery. In fact, Japan has led the recent movement of citizen participation in criminal judicial proceedings, and other Asian powers including South Korea, Taiwan, and China have followed its lead to varying degrees. Eyes around the world are focusing on Japan to see how its new jury system (more commonly known as its “lay judge …


Prime Time For Japan To Take Another Step Forward In Lay Participation: Exploring Expansion To Civil Trials, Matthew J. Wilson Jun 2012

Prime Time For Japan To Take Another Step Forward In Lay Participation: Exploring Expansion To Civil Trials, Matthew J. Wilson

Matthew J. Wilson

As juries in the U.S. and other parts of the world have increasingly come under attack, many countries in Asia have recently turned to juries or quasi-juries in an effort to enhance judicial credibility, ensure justice, facilitate civic engagement, and even stimulate economic reform and recovery. In fact, Japan has led the recent movement of citizen participation in criminal judicial proceedings, and other Asian powers including South Korea, Taiwan, and China have followed its lead to varying degrees. Eyes around the world are focusing on Japan to see how its new jury system (more commonly known as its “lay judge …


The Verdict On Juries, Valerie P. Hans, Neil Vidmar Mar 2012

The Verdict On Juries, Valerie P. Hans, Neil Vidmar

Valerie P. Hans

In reviewing debates and research evidence about jury trials for our book, American Juries: The Verdict (Prometheus Books, 2007), we have had the chance to reflect on the status of the jury system in the United States. High profile jury trials put the spotlight on the American practice of using its citizens as decision makers. When jury verdicts are at odds with public opinion, criticisms of the institution are common. The civil jury has been a lightning rod for those who want tort reform. This article draws together some of our reflections about the health of the jury system and …


Avoid Bald Men And People With Green Socks? Other Ways To Improve The Voir Dire Process In Jury Selection, Valerie P. Hans, Alayna Jehle Mar 2012

Avoid Bald Men And People With Green Socks? Other Ways To Improve The Voir Dire Process In Jury Selection, Valerie P. Hans, Alayna Jehle

Valerie P. Hans

During jury selection, many courts adopt a minimal approach to voir dire questions, asking a small number of close-ended questions to groups of prospective jurors and requiring prospective jurors to volunteer their biases. This Article describes research evidence showing that limited voir dire questioning is often ineffective in detecting juror bias. To improve the effectiveness of voir dire, the authors make four recommendations: (1) increase the use of juror questionnaires; (2) incorporate some open-ended questions; (3) expand the types of questions that are asked; and (4) allow attorneys to participate in voir dire.


Jury Trials In Japan, Robert M. Bloom Oct 2011

Jury Trials In Japan, Robert M. Bloom

Robert M. Bloom

The Japanese seeking to involve their citizens in the judicial system as well establishing a check on the power of the judiciary have enacted legislation to create jury trials. The type of jury trial enacted by this legislation, which takes effect in 2009, is a mixed-jury system where judges and citizens participate together in the jury deliberation. This article first explores the differences between mixed-juries and the American jury system. It then suggests why the Japanese opted for a mixed-jury system. From that point the article explores psychological theory surrounding collective judgment and how dominant individuals influence the group dynamics. …


A Missed Chance For Justice In Court, Tamar R. Birckhead May 2011

A Missed Chance For Justice In Court, Tamar R. Birckhead

Tamar R Birckhead

This op-ed argues that Osama bin Laden should have been captured and tried in a court of law, rather than assassinated under circumstances suggesting he was unarmed and posed no immediate threat.


Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen B. Burbank, Stephen N. Subrin Jan 2011

Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen B. Burbank, Stephen N. Subrin

All Faculty Scholarship

In this essay we review some of the evidence confirming, and some of the reasons underlying, the phenomenon of the vanishing trial in federal civil cases and examine some of the costs of that phenomenon for democratic values, including in particular democratic values represented by the right to a jury trial under the Seventh Amendment. We discuss the Supreme Court’s recent pleading decisions in Twombly and Iqbal as examples of procedural attacks on democracy in four dimensions: (1) they put the right to jury trial in jeopardy; (2) they undercut the effectiveness of congressional statutes designed to compensate citizens for …


Freedom Of Speech In American & Spanish Law: A Comparative Perspective, Alfredo Coll Jan 2010

Freedom Of Speech In American & Spanish Law: A Comparative Perspective, Alfredo Coll

ALFREDO COLL

The Supreme Court of the United States, particularly in the area of obscenity within freedom of speech, has imposed stringent procedural requirements on governmental action aimed at controlling the exercise of first amendment rights. This study argues that several lessons can be learned from these cases: that a judicial body, following an adversary hearing, must decide on the protected character of the speech, and that the judicial determination must either precede or immediately follow any governmental action which restricts speech. The authors also compare and contrast free speech protection in the United States as compared to Spain by analyzing several …


A Foothold For Real Democracy In Eastern Europe, Elizabeth R. Sheyn Jan 2010

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 Jul 2008

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 …


The Verdict On Juries, Valerie P. Hans, Neil Vidmar Apr 2008

The Verdict On Juries, Valerie P. Hans, Neil Vidmar

Cornell Law Faculty Publications

In reviewing debates and research evidence about jury trials for our book, American Juries: The Verdict (Prometheus Books, 2007), we have had the chance to reflect on the status of the jury system in the United States. High profile jury trials put the spotlight on the American practice of using its citizens as decision makers. When jury verdicts are at odds with public opinion, criticisms of the institution are common. The civil jury has been a lightning rod for those who want tort reform. This article draws together some of our reflections about the health of the jury system …