Courts Commons^™

Risk-Utility Balancing In Design Defect Cases, David G. Owen

University of Michigan Journal of Law Reform

Design defectiveness is generally defined in terms of a risk-utility balance, the form of liability test adopted by the Restatement (Third) of Torts: Products Liability. However, confusion abounds in how courts formulate such balancing tests. A national survey of recent appellate court decisions reveals that courts generally define the balance in terms of the product's risks and utility, a formulation which appears to call for weighing the product's global costs against the product's global benefits. So defined, the design defect test is incorrect. What appellate courts mean for juries to decide, and what juries ordinarily do in fact decide, …

Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud

Articles

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …

Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud

Articles

When negotiations break down and a dispute cannot be settled, attorneys commonly blame their adversaries, often questioning their ethics or their judgment. After interviewing many attorneys, we have come to believe much of the criticism is directed at strategic moves in negotiation. But strategic ploys are not the only reason dispute resolution fails. Rather, our research also suggest that a genuine desire for vindication through trial or other formal process may be very significant in some types of cases where bargaining breaks down.

Juror Delinquency In Criminal Trials In America, 1796-1996, Nancy J. King

Michigan Law Review

This article examines two aspects of the jury system that have attracted far less attention from scholars than from the popular press: avoidance of jury duty by some citizens, and misconduct while serving by others. Contemporary reports of juror shortages and jury dodging portray a system in crisis. Coverage of recent high-profile cases suggests that misconduct by jurors who do serve is common. In the trial of Damian Williams and Henry Watson for the beating of Reginald Denny, a juror was kicked off for failing to deliberate; Exxon, Charles Keating, and the man accused of murdering Michael Jordan's father all …

The Future Of The Post-Batson Peremptory Challenge: Voir Dire By Questionnaire And The "Blind" Peremptory, Jean Montoya

University of Michigan Journal of Law Reform

This Article examines the peremptory challenge as modified by Batson and its progeny. The discussion is based in part on a survey of trial lawyers, asking them about their impressions of the peremptory challenge, Batson, and jury selection generally. The Article concludes that neither the peremptory challenge nor Batson achieve their full potential. Primarily because of time and other constraints on voir dire, the peremptory challenge falls short as a tool in shaping fair and impartial juries. While Batson may prevent some unlawful discrimination in jury selection, Batson falls short as a tool in identifying unlawful discrimination once it …

"What's So Magic[Al] About Black Women?" Peremptory Challenges At The Intersection Of Race And Gender, Jean Montoya

Michigan Journal of Gender & Law

This Article addresses the evolving constitutional restraints on the exercise of peremptory challenges in jury selection. Approximately ten years ago, in the landmark case of Batson v. Kentucky, the United States Supreme Court held that the Equal Protection Clause forbids prosecutors to exercise race-based peremptory challenges, at least when the excluded jurors and the defendant share the same race. Over the next ten years, the Court extended Batson's reach.

Litigation Outcomes In State And Federal Courts: A Statistical Portrait, Theodore Eisenberg, John Goerdt, Brian Ostrom, David Rottman

Seattle University Law Review

"U.S. Juries Grow Tougher on Plaintiffs in Lawsuits," the New York Times page-one headline reads. The story details how, in 1992, plaintiffs won 52 percent of the personal injury cases decided by jury verdicts, a decline from the 63 percent plaintiff success rate in 1989. The sound-byte explanations follow, including the notion that juries have learned that they, as part of the general population, ultimately pay the costs of high verdicts. Similar stories, reporting both increases and decreases in jury award levels, regularly make headlines. Jury Verdict Research, Inc. (JVR), a commercial service that sells case outcome information, often is …

Don't Try: Civil Jury Verdicts In A System Geared To Settlement, Samuel R. Gross, Kent D. Syverud

Articles

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …

Thinking Clearly About Guilt, Juries, And Jeopardy, Stanton D. Krauss

Indiana Law Journal

No abstract provided.

Fictions, Fault, And Forgiveness: Jury Nullification In A New Context, David N. Dorfman, Chris K. Iijima

University of Michigan Journal of Law Reform

Recently, critics of the Anglo-American jury system have complained that juries in criminal trials have been ignoring the law, in favor of defendants who claim that they lack criminal responsibility because they are afflicted by the various victimization syndromes now popularized in the mass media. In this Article, Professors Dorfman and Iijima counter this characterization of the "runaway" jury and argue that juries are not ignoring the law, but rather, are exercising a primary power of the jury, to nullify the application of the law when such application to a particular defendant is unjust. The Authors trace the development of …

The Jury: Trial And Error In The American Courtroom, John C. Blattner

Michigan Law Review

A Review of The Jury: Trial and Error in the American Courtroom by Stephen J. Adler

Incoming Drug Calls And Performative Words: They're Not Just Talking About It, Baron Parke!, Christopher B. Mueller

Publications

No abstract provided.

Strong Criticism Of The American System Of Trial By Jury, Yale Kamisar

Articles

I grieve for my country to say that the administration of the criminal law in all the states in the Union (there may be one or two exceptions) is a disgrace to our civilization.

The Death And Transfiguration Of Frye, Richard D. Friedman

Articles

The rule of Frye v. United States was seventy years old, and had long dominated American law on the question of how well established a scientific principle must be for it to provide the basis for expert testimony. Even after the passage of the Federal Rules of Evidence, several of the federal circuits, as well as various states, purported to adhere to Frye's "general acceptance" standard. But now, unanimously, briefly, and with no apparent angst, the United States Supreme Court has held in Daubert v. Merrell Dow Pharmaceuticals, Inc. that the Frye rule is incompatible with the Federal Rules.

Postconviction Review Of Jury Discrimination: Measuring The Effects Of Juror Race On Jury Decisions, Nancy J. King

Michigan Law Review

In Part I, I review the empirical evidence concerning the effect of jury discrimination on jury decisions. Using the work of social and cognitive psychologists, I argue that the influence of jury discrimination on jury decisions is real and can be measured by judges in certain circumstances. The empirical studies suggest criteria that courts could use to identify the cases in which jury discrimination is most likely to affect the verdict. I also refute the argument that white judges can never predict the behavior of jurors of racial backgrounds different than their own and conclude that judicial estimates of the …

Improving Communications In The Courtroom Symposium (Welcoming Remarks And Statement Of The Issues), Newton N. Minow, Peter David Blanck

Indiana Law Journal

Symposium: Improving Communications in the Courtroom

Judge-Jury Communications: Improving Communications And Understanding Bias, Ladoris Hazzard Cordell, Robert Rosenthal, Charles F.C. Ruff, Steven J. Adler

Indiana Law Journal

Symposium: Improving Communications in the Courtroom

Cornerstones Of The Judicial Process, Jerold H. Israel

Articles

Under our federated system of government, each state and the federal government have their own criminal justice processes. The federal system must comply with the constitutional prerequisites set forth in the Bill of Rights, and the state systems must comply with those Bill of Rights' provisions made applicable to the states by the Fourteenth Amendment,1 but those constitutional prerequisites allow considerable room for variation from one jurisdiction to another. In many respects, the fifty states and the federal government have used that leeway to produce considerable diversity in their respective criminal justice processes. At the same time, however, one can …

Booth V. Maryland, Insights Into The Contemporary Challenges To Judging, Joan M. Shaughnessy

Washington and Lee Law Review

No abstract provided.

Mysteries Of Violence And Self-Defense: Myths For Men, Cautionary Tales For Women, Marianne Wesson

Publications

No abstract provided.

Settling For A Judge: A Comment On Clermont And Eisenberg, Samuel R. Gross

Articles

Trial by Jury or Judge: Transcending Empiricism,1 by Kevin Clermont and Theodore Eisenberg, is not only an important article, it is unique. To most Americans, trial means trial by jury. In fact, over half of all federal trials are conducted without juries2 (including 31% of trials in cases in which the parties have the right to choose a jury3), and the proportion of bench trials in state courts is even higher.4 And yet, while there is a large literature on the outcomes of jury trials and the factors that affect them,5 nobody else has systematically compared trials by jury to …

Real Jurors' Understanding Of The Law In Real Cases, Alan Reifman, Spencer M. Gusick, Phoebe C. Ellsworth

Articles

A survey of 224 Michigan citizens called for jury duty over a 2-month period was conducted to assess the jurors' comprehension of the law they had been given in the judges' instructions. Citizens who served as jurors were compared with a base line of those who were called for duty but not selected to serve, and with those who served on different kinds of cases. Consistent with previous studies of mock jurors, this study found that actual jurors understand fewer than half of the instructions they receive at trial. Subjects who received judges' instructions performed significantly better than uninstructed subjects …

Telling Tales In Court: Trial Procedure And The Story Model, Richard O. Lempert

Articles

There are three ways in which stories may figure prominently at trials. First, litigants may tell stories to jurors. Not only is there some social science evidence that this happens, but trial lawyers have an instinctive sense that this is what they do. Ask a litigator to describe a current case and she is likely to reply, "Our story is ... " Second, jurors may try to make sense of the evidence they receive by fitting it to some story pattern. If so, the process is likely to feed back on itself. That is, jurors are likely to build a …

To Tell What We Know Or Wait For Godot?, Phoebe C. Ellsworth

Articles

Professor Elliott raises two questions about the American Psychological Association's practice of submitting amicus briefs to the courts. First, are our data sufficiently valid, consistent, and generalizable to be applicable to the real world issues? Second, are amicus briefs adequate to communicate scientific findings? The first of these is not a general question, but must be addressed anew each time the Association considers a new issue. An evaluation of the quality and sufficiency of scientific knowledge about racial discrimination, for example, tells us nothing at all about the quality and sufficiency of scientific knowledge about sexual abuse. "Are the data …

Selecting Impartial Juries: Must Ignorance Be A Virtue In Our Search For Justice -- Welcome And Statement Of The Issue, Fred H. Cate, Newton N. Minow

Articles by Maurer Faculty

No abstract provided.

Expert Evidence, Samuel R. Gross

Articles

It seems that the use of expert witnesses in common law courts has always been troublesome. In his Treatise on the Law of Evidence, first published in 1848, Judge John Pitt Taylor describes several classes of witnesses whose testimony should be viewed with caution, including: enslaved people (which accounts for "the lamentable neglect of truth, which is evinced by most of the nations of India, by the subjects of the Czar, and by many of the peasantry in Ireland"); women (because they are more susceptible to "an innate vain love of the marvelous"); and "foreigners and others ... living out …

Do Jurors Understand Criminal Jury Instructions? Analyzing The Results Of The Michigan Juror Comprehension Project, Geoffrey P. Kramer, Dorean M. Koenig

University of Michigan Journal of Law Reform

The Juror Comprehension Project ("the Project") sought to determine whether jurors understand judicial instructions. This Article reports the results of an empirical study growing out of that Project. The Project investigated how well 600 actual jurors in Michigan understood criminal jury instructions in actual trials. Part I describes the history of the study and explains the procedures and materials used in the study. Part II presents the results of the study, first analyzing juror comprehension of selected concepts, then discussing general factors that influence juror comprehension. Part III concludes that the results show a mixed juror understanding of complex judicial …

The Law And Psychology Of Jury Instructions, J. Alexander Tanford

Articles by Maurer Faculty

No abstract provided.

Judging The Jury, Eric M. Acker

Michigan Law Review

A Review of Judging the Jury by Valerie P. Hans and Neil Vidmar

The Civil Jury--An Endangered Species, John Feikens

University of Michigan Journal of Law Reform

George Bernard Shaw, the Irish dramatist and arch gadfly, once said, "The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man. "

With this tantalizing opener, let me say that I will attempt to point out to you my deep concern about the gradual elimination of jury trials in civil cases in our country.