Revisiting Bill Whitford’s work on the role of the jury in contract interpretation and his work on consumer form contracting inspired us to take a careful look at a doctrine of contract interpretation that is usually thought to help consumers in interpretive battles with those who draft their contracts unilaterally. But we found that contra proferentem -- the canon that requires construing or interpreting a contract against the drafter when ambiguities arise -- is more confusing than we expected. What we have done here is lay out some of the complexities of the doctrine, focusing on its broader application outside insurance law, its exceptions and limitations, the difficulty of knowing whether it is a rule for the judge or the jury to apply, the various forms the rule can take, and the difficulty of knowing whether it is a default or mandatory rule. We hope laying out these complexities here helps courts and commentators in the future achieve more consistency and nuance in their applications and discussions of this commonly known but little understood principle of contract interpretation.
This Note examines the prevalence of Internet-related juror misconduct in the New Hampshire Superior Court and the efforts of Superior Court judges to detect and prevent such misconduct. I conducted a survey of New Hampshire Superior Court judges regarding their experience with juror Internet misconduct and solicited their feedback about a sample jury instruction. I have incorporated their feedback into a proposed set of jury instructions specifically targeted at reducing juror Internet misconduct.
The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”
Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, particularly at the time of the founding or during the modern era. This Article examines both state and federal courts’ interpretations of constitutional rights from the late eighteenth through the early twentieth century. It demonstrates that courts during that time adopted originalist tests. These tests, however, proved so flexible that they allowed legislatures and courts great discretion in modifying civil jury trial. The civil jury was no longer valued as a law-nullifying institution, as it had been at the founding, but instead was considered a hindrance to the administration of justice. Courts were concerned to accommodate changed circumstances, such as growing docket pressure and expense of litigation, and emphasized the impossibility of maintaining every detail of original practice. Once the anchor of original jury practice was abandoned, the jury right seemed tethered to no definite meaning. The one exception was the jurisprudence of the U.S. Supreme Court under the Re-examination Clause of the Seventh Amendment, but even that strict historical test proved able to be circumvented. This history suggests problems with maintaining procedural rights more generally.
What are the goals that researchers who conduct jury simulations have or should have? Drawing on Pennington and Hastie (1981), we identify three primary goals: (1) develop theory, (2) describe how juries perform, and (3) improve the jury process. Where basic theory matters most, studies should be designed in ways that stress internal validity. Where describing the behaviors of real juries or persuading policy makers about changes that should be made, studies should focus on external and ecological validity as well. We urge researchers who are interested in describing jury behavior and improving the jury process to conduct ecologically valid studies. Failure to do so will restrict the impact of our research on courts and policy makers.
In the age of the vanishing civil jury trial an experienced federal district judge pens a fictitious obituary for the American Trial Lawyer.
The American trial lawyer (ATL), who, in innumerable ways, enhanced the lives of so many Americans and made the United States a fairer, healthier, safer, more egalitarian, and just nation, passed away recently. Although a precise age is uncertain, ATL is believed to have been at least 371 years old at the time of death.
The special verdict is plagued by two philosophical paradoxes: the discursive dilemma and the lottery paradox. Although widely discussed in the philosophical literature, these paradoxes have never been applied to jury decision making. In this Essay, I use the paradoxes to show that the special verdict’s vote-reporting procedures can lead judges to render verdicts that the jurors themselves would reject. This outcome constitutes a systemic breakdown that should not be tolerated in a legal system that prides itself on the fairness of its jury decision making process. Ultimately, I argue that, because the general verdict with answers to written questions does not suffer from these paradoxes, it should be adopted in place of the special verdict.
You have spent several hours selecting a jury in a civil case. In accordance with the usual Maryland procedure, the jurors were sworn and the trial judge conducted the voir dire, permitting counsel to ask only a few follow-up questions. One question the court asked the potential jurors is whether they ever have been a plaintiff or defendant in a civil or criminal case. Some answer affirmatively and are questioned at the bench. Others remain silent. A jury is selected.
Overnight, you discover that three of the jurors have failed to disclose their prior involvement in litigation. The next morning, you bring this to the attention of the court. Further voir dire is conducted and each of the jurors, after some prodding, admits their litigation histories. One says he didn’t hear the question. One says she thought that since her litigation had been resolved several years ago, there was no need to disclose it. The third provides no excuse. You have already used your peremptory challenges. Accordingly, you now challenge the three jurors for cause. You tell the judge that because neither opening statements nor any evidence have yet been presented, now is the time to replace these jurors.
This article examines the amount recovered in 118 wrongful death cases filed in a single jurisdiction (North Carolina) over a five year period. The dataset is unique, in that it includes both jury verdicts and settlements. Although the injury -- death -- was the same in these cases, the amount recovered varied greatly. Several patterns emerge from the data. First, there is a strong negative correlation between age and the amount recovered. Second, the manner in which the decedent died seems to make a difference. Violent deaths, for example, led to larger recoveries than did non-violent deaths. Third, jury verdicts produced much larger recoveries than did settlements. Finally, our results underscore the critical role of insurance in these cases.
Finally, the evidence has all been heard, the lawyers have given closing arguments to the jurors, and now it is up to the trial judge; it is her turn. Of course, she will instruct the jury on the law, no question about that. But this was a very lengthy multiple defendant trial. That experienced, savvy trial judge is no doubt tempted to go beyond stating to the jurors the mere legal rules (the usual jury instructions). She might also prefer to talk with them about the evidence: comment on particular items, summarize the overall evidence and the arguments put forth by the lawyers on both sides. After all, we all want to be certain that these lay people understand just what this case was all about. And who better to tell them about the evidence than the judge?
If this judge sits in the United States, she had better resist that temptation. Otherwise, she is very likely to be reversed on appeal, perhaps even disciplined. But, elsewhere in the common law world, that judge would not be at all concerned about going beyond the giving of jury instructions. In fact, if she does not, she is likely to be reversed on appeal, perhaps even disciplined.
Why the difference between U.S. judges and judges from other common law based nations, with similar roots in the English criminal justice system? Are Americans really that different from their English-speaking cousins on this point? What explains that difference? And which nation gets it right? Those are the questions I attempt to answer in this article.
To do so, I take an unconventional approach. I discuss the well-established legal principles one finds in cases, statutes, and rules in the five focal nations of Australia, Canada, England, New Zealand, and the United States. In my research, however, I sought to go beyond this, to find out the way in which the practice really occurs. In short, I was trying to determine whether the trial judges truly acted so very differently in the various nations. I was in touch with more than eighty individuals in these five nations. Most I knew; all were experienced in the world of criminal justice, as trial or appeals judges (state or federal), prosecution or defense lawyers, or academics who either left the practice or studied it carefully. I met with them, or spoke with them on the phone, or corresponded with them, or exchanged email messages. This article lays out the surprising answers to the questions I asked these individuals on the practice of instructing jurors.
A new and exciting breed of the grand jury system has emerged in East Asia: Japan introduced the revised system of Prosecution Review Commissions (“PRCs”) in 2009 and the People’s Republic of China implemented the System of People’s Supervisor in 2010. Contrary to the United States’ grand jury system, which has often been criticized as the government’s rubber stamp institution or even labeled as the “laughingstock” of US criminal procedure, these two new citizen panels adopted in two of the most powerful countries in East Asia have begun to transform their legal landscape by giving ordinary people the authority to monitor and check government and corporate decisions and activities. These oversight institutions have also begun to initiate forced prosecution of unethical actions and illegal conduct of government officials, industrialists, economic elites, and even foreign soldiers stationed in the country.
The structure of this article is as follows. Part I examines Japan’s revised PRC system and how its implementation facilitated the forced prosecution of a political powerbroker, past presidents of Japan’s powerful corporations, a government bureaucrat, and US military personnel stationed in Japan. The historical genealogy of China’s People’s Supervisor System (“PSS”) is the focus of Part II. Part III examines specific criminal cases reviewed and assessed by the grand juries in both countries. Beginning in the early 1990s, many East and Central Asian countries began to introduce a new system of lay participation in criminal justice procedure. Active participation of citizens in the justice system and the new civic oversight of government agencies and corporate elites can lead to even further transparency of judicial systems in East Asia. Part IV then examines the socio-political ramifications of these new systems in Japan and China and makes critical suggestions to improve the representativeness of civic panels and the quality of their deliberations.