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.
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.