Parties are increasingly using high-low agreements to limit the risks of litigation. High-low agreements are contracts in which defendants agree to pay plaintiffs a minimum recovery in return for plaintiffs’ agreement not to execute on a jury award above a maximum amount. Currently no jurisdiction requires high-low agreements to be disclosed to the jury. This Note argues that disclosure should be required. It contends that non-disclosed high-low agreements are a type of procedu- ral contract modifying the jury’s core adjudicative function. Drawing on theories of procedural justice, it suggests that by usurping the jury’s role these agreements un- dermine the legitimacy of the judicial system. It contends that requiring disclosure would remedy these negative effects and that any unintended consequences attend- ant to disclosure could be mitigated by the court or by the parties.
In Hurst v. Florida, the Florida Supreme Court struck down a state law that permitted the death penalty even when only 10 of 12 jurors were in agreement. Florida, which has put executions on hold since January, was one of three states that did not require unanimous jury recommendations in death-penalty cases.
For those who are unaware, the National Center for State Courts puts out a weekly bulletin on jury-related news. The topics for this week's bulletin can be found below. To access the latest bulletin or to subscribe to the bulletin go here.
IN THIS ISSUE
October 7, 2016
Peña-Rodriguez v. Colorado
Australian Deaf Prospective Juror Loses Challenge to Exclusion from Service
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 question that is probably impossible to definitively answer but that is very important to explore: where state legislatures and courts continue to retain outmoded tort doctrines like contributory negligence, which tend to limit plaintiffs’ access to juries, is this because state legislatures and judges believe juries with large concentrations of African-Americans and low-income people will unacceptably distribute wealth to plaintiffs? The term “Bronx effect” alludes to this alleged phenomenon. No other article has rigorously tried to link the so-called Bronx effect with the perpetuation of outmoded tort doctrines. The authors use a complex interdisciplinary approach to rank states in terms of the degree to which their tort doctrines deny plaintiffs’ access to juries. Digging deep into factors that might affect a state’s ranking, they then find strong correlations between a state’s law making it difficult for plaintiffs to reach a jury, and a state’s having a large African-American population and/or being part of the South. This and other findings in the article are significant, bringing to light a race-based exclusionary pattern in the legal system. The pattern of keeping cases from black buries also likely leads to under compensation of African-American plaintiffs, my response explains. The article deserves a place in torts scholarship generally, in critical race scholarship, and in empirical legal scholarship. While it is not surprising that definitive causal conclusions are lacking, implicit bias may shed light on the mechanisms by which these outmoded doctrines endure. The article’s calls for reform are reasonable in light of the evidence of the study and other torts scholarship.
The Atlantic has a good article on Rodriguez v. Colorado which is currently before the U.S. Supreme Court. The article provides good background information on the issue presented by Rodriguez. As some will recall, Rodriguez asks the question as to whether the court can look into jury deliberations, especially when those deliberations reveal that a juror has made racial comments about the defendant and witnesses.
In the 2015 Term, 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 to eliminate discriminatory peremptory challenges is to eliminate the peremptory challenge.
In this capital case from Georgia, petitioner Timothy Tyrone Foster, an African-American man, claimed that the prosecutors violated Batson by exercising race-based peremptories and striking four African-American prospective jurors. Foster was tried, convicted, and sentenced to death by an all-white jury. What made this case so unusual was that Foster, through the Georgia Open Records Act, was able to obtain the prosecutors’ notes. In the notes, the prosecution had highlighted the names of African-American prospective jurors on the venire list, circled their race on their questionnaires and noted it on their juror cards, and put them on a “definite NO’s” list. As the notes make clear, the prosecutors focused on the African-American prospective jurors’ race, even though they gave seemingly race-neutral reasons to explain why they removed them.
The Court in Foster undertook a close reading of the prosecutors’ reasons and found race to be the basis for the prosecutors’ peremptory challenges. This Article identifies the strengths and weaknesses of the Court’s opinion in Foster. However, Foster’s case was unusual because the prosecutors’ notes were in effect a “smoking gun.” Without such notes, the prosecutors’ seemingly race-neutral explanations would have sufficed under Batson. The Court needs to recognize the ineffectiveness of Batson. It could tweak the Batson test in different ways, such as by giving more weight to discriminatory effects or practices or by devising a stronger remedy. In the end, however, the only remedy that is adequate to the task is the one that Justice Marshall proposed in his Batson concurrence thirty years ago: eliminate peremptory challenges.