The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong. Defendants can, and sometimes do, “unbundle” their jury-trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure. This Article explores what happens if, once and for all, we eschew the all-or-nothing framework and actually encourage these “unbundled bargains.” The parties could then tailor court procedures by agreement. Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury. Or the parties could agree to submit a case to private arbitration. Would such a world be better or worse than the one we have now? This Article takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining plausibly outweigh the costs. To read the entire article go here.
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 makes three original contributions.
First, I undermine the claim that the breach question in negligence is inevitably one for the jury by revisiting a famous debate between Cardozo and Holmes about the possibility of judge-made rules around breach in tort. Second, I draw on social and cognitive psychology to question the conventional wisdom that juries applying general standards are ideally suited to identify and apply social norms. And third, I sketch a middle-ground approach on breach, which involves presumptive rules that defer to indicia of social norms such as statutes and regulations, custom, and the market.
In making the argument, this Article begins to point the way towards a tort system that recognizes the value of recourse but better serves rule-of-law values.
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 cognitive biases and errors. Moreover, jurors are often at a disadvantage because most of them have never served on a jury and many of them have never worked with a group to reach a decision about a complex problem. Compounding these issues, jurors are not typically given instructions or training on working in a group or on effective decisionmaking strategies.
Although there is an extensive literature examining juries and jury deliberations, “All Together Now” is the first law journal article to consider all of the major scientific studies that examine training in group decisionmaking and apply them to jury decisionmaking. Many studies have examined group processes and group deliberations in the fields of social psychology, organizational psychology, business administration, advertising, and a variety of related areas. Moreover, countless studies examine group decisionmaking and recommend the use of training to improve group performance. Yet almost none of this interdisciplinary knowledge of group dynamics and the efficacy of training on group performance have been applied to one of the most fundamental group decisionmaking bodies — the jury. We can use this literature to create effective juror training procedures and give jurors strategies to more effectively deliberate and reach better group decisions.
This is the first law review article to examine transcripts, court filings, and published opinions about jury voir dire on attitudes toward same-sex sexuality and LGBT issues. It demonstrates that jurors express a range of homonegative attitudes. Many jurors voicing such beliefs are not removed for cause, even in cases involving lesbian and gay people and issues. It suggests some best practices for voir dire to uncover attitudes toward same-sex sexuality, based on social science research. Voir dire on LGBT issues is likely to become more important in coming years. Despite enormous gains, including historic marriage equality decisions, the LGBT rights movement remains a cultural flashpoint. In part due to the work of LGBT advocates, more cases involving LGBT issues and sexuality are likely to enter the criminal legal system. These could involve alleged harassment or bullying, like the Dharun Ravi case, or hate crimes against LGBT people, which may be on the rise even as LGBT rights advance. As stigma lessens and more complainants come forward, there also may be more claims of same-sex sexual assault or intimate partner violence In many of these cases, defense attorneys or prosecutors will seek to voir dire jurors regarding their attitudes toward LGBT people and sexuality. At the same time, LGBT venirepersons may fear discrimination in voir dire. In 1998, Paul Lynd wrote that prospective jurors who revealed that they were gay faced employment discrimination or even criminal prosecution under then-extant sodomy laws. Today, Lawrence v. Texas has largely eliminated criminal stigma, and some jurisdictions have LGBT anti-discrimination protections. Nonetheless, depending on the jurisdiction and the context, prospective gay jurors might still fear public "outing," and only a few jurisdictions protect jurors from peremptory strikes based on sexual orientation. This paper examines the complex and varying situations in which LBGT issues may surface in voir dire and offers suggestions for navigating this contested terrain
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. rests on two now-familiar premises. First, for some statutes, the traditional tools of statutory interpretation more readily yield a range of plausible meanings than a single correct reading. Second, judges are not always the officials best positioned to select one interpretation of a statute from among the plausible options. Chevron relied on these premises to decide that when a court finds ambiguity in a statute administered by an agency, it must defer to the agency’s interpretation of the statute, so long as it is reasonable. But while administrative law provided a doctrinal context for the Court’s decision, Chevron’s interpretive premises were about statutes generally, not statutes administered by agencies.
Commentators seldom recognize the general nature of Chevron’s interpretive premises. This article shines a spotlight on it by applying the premises to a class of statutes outside administrative law. Judges, I argue, are not the best-situated actors in our legal system to pick from among the legally plausible readings of conduct-regulating statutes of general applicability. Indeed, they are not even the best-situated actors in the courtroom. Juries possess epistemic and political qualities that make them expert interpreters of conduct-regulating statutes that are generally applicable. I invoke that expertise to propose “Chevron for Juries,” a series of procedural reforms that would transfer interpretive primacy for this class of statutes to juries
The literature on the American jury rarely considers the experience of other nations as relevant case studies. This Article describes how the now over 200-year debate in the United States over the proper role and form of American jury practice can be advanced by looking at the jury practice in the small Mediterranean island nation of Malta. Malta – like the United States – has a British-based jury system of roughly 200 years vintage. But it methods of selecting jurors, empowering jurors, and forming verdicts vary dramatically from the United States. The experience of Malta suggests the United States should reconsider the value of voir dire, should allow jurors to be active and interactive participants during trial, and should reform the standard criminal verdict form.
This study compares two Missouri capital cases where evidence of the defendants' personality disorder and childhood abuse history were predominant themes at trial, in order to assess the jurors' receptivity to mental mitigating evidence. The cases confirm theories suggested by Capital Jury Project scholars that jurors engage in arbitrary decision making and premature and automatic death-penalty decisions, that they speculate about parole, and that they are guided by the racial composition of the jury. This study goes one step further to suggest that these errors in decision making can skew death decisions by distracting holdout jurors from considering and giving effect to the mitigation evidence. Some jurors may be more inclined than others to be distracted by arbitrary factors because they focus more on the retributive aspects of the case or the severity of the injury than on defendant's culpability. Juror errors like premature and automatic death-penalty decision making and extralegal considerations about parole and race may drive the majority of jurors to persuade the holdouts to join in a death verdict. These errors may stifle moral considerations of mitigating evidence at deliberations, and they serve as a “counterweight” to the proper weighing of the evidence. The parts of a capital trial, therefore, are linked together and act as weights and counterweights against each other.
Numerous studies have shown that anchoring can have a strong effect on juries. For scholars and policymakers, this evidence is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). For litigators, this evidence had led to the maxim “the more you ask for, the more you get.” Still, less scholarly attention has been paid to whether an outrageously high request might undermine the plaintiff’s credibility, adversely affect his or her chances of winning at all. This “credibility effect” may be larger than the anchoring effect.
Likewise, little scholarly attention has considered whether a defendant can effectively respond to the plaintiff’s high anchor. One obvious strategy would be a “counter-anchor” – the defendant suggesting a much lower damages award. However, defense attorneys worry that juries may interpret such a strategy as an admission of liability. Thus, in fact, defendants often allow the plaintiff’s anchor to go unrebutted, but this strategy has also not been rigorously tested.
To answer these questions, we conducted a randomized controlled experiment in which we exposed mock jurors to the same shortened medical malpractice trial, manipulated with six different sets of damages arguments in factorial design. Plaintiff demanded either $250,000 or $5,000,000 non-economic damages. The defendant responded in one of three ways: (1) offering the counter-anchor that, if any damages are awarded, they should only be $50,000; (2 ignoring the plaintiff’s damage demand; or (3) attacking plaintiff’s demand as outrageous and using this characterization to argue that plaintiff’s entire case was not credible. Mock jurors were then asked to render a decision on both liability and damages. We then ran these individuals decisions through a computer simulation to create mock jury decisions.
Our study confirmed that anchoring has a powerful effect on the amount of damages mock juries award. However, a large damages demand also had a small negative effect on liability determinations. When looking at the expected value of the case – the average award when both liability and damage award are considered – these “credibility effects” were overwhelmed by anchoring effects. Different defendant’s responses also resulted in different outcomes when plaintiff anchored low, but none of these defense strategies are an effective antidote to the plaintiffs’ high anchor. We discuss implications for litigation strategy and policy.
Civil jury service should be a potent form of deliberative democracy, creating greater civic engagement. However, a 2010 seven-state study of jury service and voting records found no overall boost in civic engagement following service on civil juries, whereas jurors who served on criminal cases did show increased civic engagement following their jury service. This article reports a project that augments the civil jury dataset with information about jury decision rule, jury size, defendant identity, and case type and examines whether specific types of civil jury service influence post-service voting. Taking into account pre-service voting records, jurors who serve on a civil jury that is required to reach unanimity or a civil jury of size twelve are significantly more likely to vote after their service. Jurors who decide cases with organizational as opposed to individual defendants likewise show a boost in voting behavior, as do jurors deciding contract or non-automotive torts cases compared to automotive torts. Limitations and implications for deliberative democracy theory and jury practice are discussed with these findings.
Abstract: Laurence Tribe’s “testimonial triangle” has been a staple of evidence law casebooks for several decades and has been cited frequently in support of the rule against admitting hearsay into evidence. Yet in the 40 years since Professor Tribe published his article on the testimonial triangle, no one has examined whether the central tenets of it, as they relate to hearsay, pose an actual problem for legal fact finders. This Article is the first to evaluate that proposition empirically.
The central idea behind Tribe’s Triangle is that (1) several infirmities lurk behind all testimony provided in court, and (2) testimony based on hearsay is subject to two sets of infirmities — those of the in-court witness and those of the original declarant. With respect to hearsay evidence, policymakers fear that fact finders are blind to the infirmities of the original declarant — who is not subject to in-court cross-examination — and will give hearsay evidence undue weight. Two original experiments reported in this Article, which rely on tenets of social and cognitive psychology, challenge that assumption and suggest that this fear is largely unsupported.
The studies reported in this Article suggest that, consistent with empirical work on implicit goal activation and psychological distance, jurors are critically attuned to the testimonial infirmities that lurk beneath hearsay evidence and discount the evidence accordingly. These findings have far-reaching implications for the hearsay doctrine, for the contentious debate over juror competency, and for practicing attorneys who make decisions about hearsay evidence at trial. They also provide a theoretical framework for further empirical hearsay research and suggest that a dominant rationale for the hearsay ban — that jurors are incompetent to evaluate it — is empirically suspect