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Judicial Notice: An Essay Concerning Human Misunderstanding, E. F. Roberts

Cornell Law Faculty Publications

Articles limning the law pertaining to judicial notice are legion, and the footnotes which have been cite checked by generations of law review editors must number in the thousands. These articles assume that reason, properly employed, produces correct answers. They assume that disagreements can be resolved by reason, because it is self-evident that any problem, once identified, can be solved. Reflected here are the presuppositions of lawyers brought up in the Western legal tradition.

What if one were to doubt that reason necessarily governed the behavior of lawyers? What if one doubted as well that all problems were susceptible to …

Conscience And The Law: The English Criminal Jury, Robert C. Palmer

Michigan Law Review

A Review of Verdict According to Conscience by Thomas Andrew Green

Juries On Trial: Faces Of American Justice, Nancy J. King

Michigan Law Review

A Review of Juries on Trial: Faces of American Justice by Paula DiPerna

The Twelve-Person, Unanimous Jury: Does It Have More Than History To Recommend It?, Richard O. Lempert

Articles

My focus today will be on the twelve-person unanimous jury and on the contrasts between such juries and six-person juries or twelve-person juries than can return verdicts by ten-two or nine-three votes. Until about fifteen years ago, it appeared that the sixth and seventh amendments required all federal juries to have twelve members who reached unanimous verdicts, and it appeared possible that the Supreme Court would force the states to conform to the federal standards. Instead, the court did almost the opposite. It sanctioned juries as small as size six in state criminal cases and federal civil cases, and it …

The Availability Of Jury Trials In Copyright Infringement Cases: Limiting The Scope Of The Seventh Amendment, Andrew W. Stumpff

Michigan Law Review

This Note argues that statutory copyright damages are properly regarded as equitable and hence that no right to a jury trial exists in cases brought to recover such damages. More generally, the Note maintains that the seventh amendment's distinction between equitable and legal causes of action has produced irrational consequences, and proposes that "legal" issues be defined narrowly so as to limit the scope of the seventh amendment. Part I analyzes the debate over statutory copyright damages, concluding that historical and statutory construction arguments require these damages to be construed as legal. Part II examines some of the problems that …

Understanding The Jury With The Help Of Social Science, Stephen Saltzburg

Michigan Law Review

A Review of Inside the Jury by Reid Hastie, Steven Penrod and Nancy Pennington

Juries, Susan E. Morton

West Virginia Law Review

No abstract provided.

Impressions Of A Not-So-Average Juror, Robert H. Jerry Ii

Faculty Publications

Direct observation of jury decision-making is impossible without tainting the quality of the observations, and perhaps the jury's decision itself. Another reason for the difficulty attorneys have in understanding how juries will respond to their efforts is lack of experience. Because attorneys rarely serve on juries, the typical attorney cannot converse with colleagues about personal observations of how juries decide cases.

It is probably fair to say that I am one of only a few lawyers who has served on a jury. My own recollections of my service may well be incomplete, skewed, and deficient. Generalizations from my recollections must …

Equity, Due Process And The Seventh Amendment: A Commentary On The Zenith Case, Patrick Devlin

Michigan Law Review

The seventh amendment to the United States Constitution requires that "[i]n Suits at common law . . . the right of trial by jury shall be preserved." What exactly is a suit at common law? When the amendment was enacted in 1791, there was no law that was common to all the states. In 1812 Supreme Court Justice Story, in a Circuit Court ruling, held that the common law alluded to was the common law of England, "the grand reservoir of all of our jurisprudence." This means that when today an American judge has to decide whether in any set …

Improving Jury Deliberations: A Reconsideration Of Lesser Included Offense Instructions, Michael D. Craig

University of Michigan Journal of Law Reform

This Note approves of efforts to avoid hung juries by giving lesser included offense instructions but opposes those instructions that restrict juror decisions and coerce minority jurors. Rather, this Note offers a lesser included offense instruction that promotes flexibility and jury compromise without undermining the deliberative process. Part I describes the problem of hung juries and how courts have tried to prevent them with restrictive lesser included offense instructions. Part II analyzes the coercive impact of restrictive lesser included offense instructions and concludes that an instruction conditioning deliberations upon individual juror disagreement better promotes compromises on the merits while reducing …

Jury Instructions, John M. Purcell

West Virginia Law Review

No abstract provided.

Habeas Corpus Review Of State Trial Court Failure To Give Lesser Included Offense Instructions, Michael H. Hoffheimer

University of Michigan Journal of Law Reform

This Note advocates that federal courts review state criminal convictions in habeas corpus proceedings when lesser included offense instructions are available under state law but were not given. Part I demonstrates that granting such review conforms to the modern jurisdictional scope of federal collateral review because failure to give the instructions undermines the fact-finding function of juries and is therefore unconstitutional. Part II analyzes the proper standard of review and determines that the federal interest in protecting the reliability of the fact-finding process should prevail over any conflicting state interest in refusing to give lesser included offense instructions. Part II …

Reconstructing Reality In The Courtroom: Justice And Judgement In American Culture, Michigan Law Review

Michigan Law Review

A Review of Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture by W. Lance Bennett and Martha S. Feldman

Legal Psychology: Eyewitness Testimony--Jury Behavior, Michigan Law Review

Michigan Law Review

A Review of Legal Psychology: Eyewitness Testimony--Jury Behavior by L. Craig Parker

Civil Juries And Complex Cases: Let's Not Rush To Judgment, Richard O. Lempert

Michigan Law Review

When a fundamental constitutional right is at issue, it is admittedly difficult for the Court to treat the lower courts as laboratories. But if the constitutional right turns on empirical questions, it is better to wait for knowledge than to rush toward a judgment that may later be shown to have vitiated an important right across all circuits. If the Court feels compelled to resolve the conflict, the better decision - if empirical issues are seen as central - is to sustain the right to jury trial regardless of complexity. Sustaining that right will allow courts and researchers to collect …

Judgment Non Obstantibus Datis, Reid Hastie

Michigan Law Review

A Review of Jury Trials by John Baldwin and Michael McConville

Juror Self-Disclosure In The Voir Dire: A Social Science Analysis, David Suggs, Bruce D. Sales

Indiana Law Journal

No abstract provided.

Young Adults As A Cognizable Group In Jury Selection, Donald H. Zeigler

Michigan Law Review

In support of its thesis, this Article presents what the literature has failed to provide: a comprehensive analysis of the concept of cognizability and empirical data. Part I traces the history of cognizability; identifies the sources of the cross-sectional right; and defines the criteria of cognizability, drawing special attention to the interests which a designation of cognizability protects. Part I also discusses the different approaches courts have taken to cognizability and suggests several factors which may explain the many treatments of the concept.

Part II reviews the case law concerning the cognizability of young adults in particular. That Part also …

The Jury's Role Under The Indiana Constitution, Carolyn White Spengler

Indiana Law Journal

No abstract provided.

Modeling Relevance, Richard O. Lempert

Michigan Law Review

During the past decade, particularly during the years immediately following the California Supreme Court's decision in People v. Collins, a number of articles have appeared suggesting ways in which jurors might use certain mathematical techniques of decision theory as aids in the rational evaluation of circumstantial evidence. Professor Tribe, in an important response to the post-Collins articles, argues against introducing these techniques into the factfinding process. Problems that Tribe foresees include the necessary imprecision of the probabilistic estimates that these techniques require, the dwarfing of soft variables by those that are more readily quantified, and the potential dehumanization …

Uncovering "Nondiscernible" Differences: Empirical Research And The Jury-Size Cases, Richard O. Lempert

Michigan Law Review

My point is not that verdict differences associated with jury size cannot be revealed through careful empirical investigation. Indeed, at several places in this article I will suggest research strategies likely to reveal such differences. Rather, it is that typical strategies of legal-impact research, such as those utilized in the Colgrove real-world studies, are unlikely to uncover differences associated with jury size however well they control for those plausible rival hypotheses that form the usual threats to the validity of impact research. The reason lies in the unamenability of the jury-size problem to the usual techniques of aggregate data analysis.

A Jury Experiment Reanalyzed, Shari Seidman Diamond

University of Michigan Journal of Law Reform

Researchers in the behavioral sciences have watched with some pride as the courts have given increased attention to social science studies. Judicial interest in empirical studies is a desirable development but one not quite free of danger. The courts are not yet fully accustomed to dealing critically with such evidence. The United States Supreme Court ruled recently, in Colgrove v. Battin, that six-member juries in civil cases meet the seventh amendment requirement of trial by jury. This decision was not surprising in light of Williams v. Florida, in which the Court ruled that six jurors were sufficient to …

Six-Member And Twelve-Member Juries: An Empirical Study Of Trial Results, Lawrence R. Mills

University of Michigan Journal of Law Reform

The most convincing basis for criticism of the Supreme Court's conclusion that there is "no discernible difference" between the results reached by the six-member juries and those reached by the twelve-member juries would be empirical data suggesting a contrary conclusion. A recent study by the Institute of Judicial Administration comparing twelve-member and six-member juries in over 650 civil cases in New Jersey courts disclosed less than a two percentage-point difference between the respective percentages of verdicts rendered for plaintiffs by the two different-sized juries. The same study seemed to indicate that the damage awards in twelve-member jury cases were higher …

An Empirical Study Of Six And Twelve-Member Jury Decision-Making Processes, Joan B. Kessler

University of Michigan Journal of Law Reform

This article employs the techniques of the social sciences in testing a legal proposition. After setting forth the hypotheses and methodology utilized by the experiment discussed herein, it presents the results obtained by examining the deliberations of different-sized juries concerning the same civil litigation. This article does not purport to be definitive; it does, however, attempt to indicate one methodology of interdisciplinary research which can be undertaken and the utility of this research to both the social sciences and the legal profession.

Voter Registration Lists: Do They Yield A Jury Representative Of The Community, Fred A. Summer

University of Michigan Journal of Law Reform

The passage of the Federal Act was primarily a response to the inability of the prevailing jury selection process to achieve the goal of a representative jury. The Act requires that voter registration lists be used as the primary source of names for jury selection in federal courts. A similar provision applicable to state courts is included in the Uniform Jury Selection and Service Act, adopted by the Conference of Commissioners on Uniform State Laws in 1970.6 This article will examine the rationale and effectiveness of the use of voter registration lists as a means of achieving the goal of …

Reducing The Size Of Juries, David M. Powell

University of Michigan Journal of Law Reform

In recent years, court dockets have become increasingly congested. The resulting delays place a great burden both on civil litigants and on the criminally accused who often await trial for more than two years. In responding to this problem, jurists have focused on trial by jury and have typically suggested modifications of two types: either limiting access to juries by litigants, or increasing the efficiency of the juries themselves. Some critics have even contended that the anachronistic procedure of jury trials is such an undue burden on the judicial system that it should be abolished in the interest of efficient …

American Bar Association Project On Minimum Standards For Criminal Justice: Standards Relating To Trial By Jury (Approved Draft), Melvin M. Belli

Michigan Law Review

A Review of American Bar Association Project on Minimum Standards for Criminal Justice: Standards Relating to Trial by Jury (Approved Draft). Recommended by the Advisory Committee on the Criminal Trial

Gleisser: Juries And Justice, Charles S. Desmond

Michigan Law Review

A Review of Juries and Justice by Marcus Gleisser

Preservation Of The Civil Jury System, Stanley E. Sacks

Washington and Lee Law Review

No abstract provided.

Developments In The Law Of Coerced Confessions, Howard Klemme

Publications

No abstract provided.