Thursday, 2:15 - 4:10 pm Room 1470B
Course DescriptionThe jury has been described as one of the last bastions of pure participatory democracy in this country. And yet, many cling to the notion that juries are in the business of determining fact and nothing more. Is it possible to reconcile these seemingly inconsistent conceptions of the jury? In this class, we will try to sort out these and other fundamental questions about the operation of the U.S. jury system. While recent trials have served to inform the public about how jury trials actually work, several features remain a mystery to most citizens and many lawyers. We address within this course all facets of the jury trial, from the creation of jury lists from which potential jurors are chosen, to the production of a final verdict by the jury that hears the case. Along the way, we will visit such issues as the exercise of peremptory challenges, the right to a jury trial, the various burdens of proof, and how deliberation can be affected by the rules governing how the jury may reach a verdict. Throughout this journey into the inner workings of the jury, one question will haunt us: "What exactly is the responsibility of a juror?" While we may not have a definitive answer to this query by the end of the term, we should all be in a much better position to understand what factors must enter into any answer we might offer. You might think you understand how a jury works now; but, I promise that you will learn at least a few things in this course that will surprise you, perhaps anger you, and certainly get you thinking. This course has a dual focus on theory and cases. So, it will be useful to future litigators, prosecutors and defense lawyers, hoping to learn about the law governing their behavior before a jury. There will also be plenty here for those students interested in the links between democracy and justice, judicial reform and other theoretical issues. This seminar meets weekly for two hours. I expect all students to come to class having read the material and prepared to participate in discussions. Parts of some class sessions may be devoted to guest speakers and in-class exercises. I do not cold call on students. All I ask in return is that you do the reading on time and come to class prepared to participate. While there are some procedural and legal features of the system that I can impart to you, most of the questions we will address in this class do not have easy answers. As such, this semester will be a journey of collective exploration. If you are not prepared for class, your class experience will suffer, as will those of your classmates. Course RequirementsI will try my best to keep the assigned reading to a manageable level, but this is a seminar, so some topics may require us to cover a lot of material. I have assigned four books. They are We, the Jury, by Jeffrey Abramson, Judging the Jury, by Hans and Vidmar, Verdict: Assessing the Civil Jury System, edited by Litan, and Punitive Damages, by Sunstein, Payne, Viscusi, Hastie and Schkade. Please note that none of these are casebooks, so the total cost should not be prohibitive. In addition, I have assigned cases and articles that are available from the copy center in the basement of the Law School. There will be weekly short writing assignments during the term; however, each student is only required to complete three of these. I leave it up to each student which of these she will complete, according to her interests. In addition to these short papers, each student will be required to write a final paper that might, or might not, grow out of one of the short assignments. I will meet with each student during the second half of the semester to assist with getting started on the final paper. I would like to schedule an extra class session at the end of the term so that each student can present her work-in-progress to the rest of the class. Final papers are due at the end of exam period. There will be no extensions. Course ScheduleThursday, January 8.
Book ReadingWe, the Jury: Introduction and Chapter 1. Judging the Jury: Chapters 1 and 2. Verdict: Assessing the Civil Jury System: pp. 1-32. Punitive Damages: none. Cases: State v. Reed (on video) Supplemental Reading: Joseph P. Dawson, "Local Courts: County and Hundred," in A History of Lay Judges (Cambridge, MA, 1960). F. Pollock and F.W. Maitland, "The Hue and Cry," in The History of English Law, 2d ed. (Cambridge, 1898). T.F.T. Plunckett, "The English Response to Abolition of the Ordeals," in A Concise History of the Common Law (5th ed., 1956). John Langbein, "Peine Forte et Dure," in Torture and the Law of Proof (Chicago, 1977). T.F.T. Plunckett, "Rationalisation of Jury Trial," in A Concise History of the Common Law (5th ed., 1956). F. Pollock and F.W. Maitland, "An Overview of Trial Procedure in the Eyre," in The History of English Law, 2d ed. (Cambridge, 1898). C.A.F. Meekings, ed. "Eyre Roll Excerpts," in Crown Pleas of the Wiltshire Eyre, 1249 (1961). F. Pollock and F.W. Maitland, "The Role of the Trial Jury in Civil and Criminal Procedure," in The History of English Law, 2d ed. (Cambridge, 1898). R.C. van Caenegem, "The Timing Thesis," in The Birth of the English Common Law (Cambridge, 1973). W.S. Holdsworth, "The County-Wide Grand Jury," in A History of English Law (7th ed. 1956). Anthony Musson, "Grand Jury Composition in the Fourteenth Century," in Twelve Good Men and True: The Character of Early Fourteenth-Century Juries, 15 Law & History Rev., 115 (1997). Sir John Fortescue, "The Jury in Transition," in De Laudibus Legum Angliae (Cambridge, 1942). James B. Thayer, "Informing the Jury in Civil Cases," in A Preliminary Treatise on Evidence at the Common Law (Boston, 1898).
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Book ReadingWe, the Jury: Chapter 2. Judging the Jury: Chapter 3. Verdict: Assessing the Civil Jury System: pp. 32-60. Punitive Damages: none. Cases: State v. Reed (on video) Supplemental Reading: William Blackstone, "On the Trial by Jury," in Commentaries on the Law of England. Alexis de Toqueville "The Jury in the United States," from Democracy in America. Thursday, January 22.
Book ReadingWe, the Jury: none Judging the Jury: Chapter 10. Verdict: Assessing the Civil Jury System: Chapter 12. Punitive Damages: none. Cases: Sparf (and Hansen) v. U.S. 156 U.S. 51 (1895) [edited] Miller v. California 413 U.S. 15 (1973) [edited] State v. Sarko, in Norbert Ehrenfreund and Lawrence Treat, You're the Jury (Owl Books, New York, 1992) [provided in this packet]. Supplemental Reading: Janet Portman, "Three Strikes -- The Second Inning," (Nolo Press, 1995) Paul Butler, "Racially Based Jury Nullification: Case-in-Chief" (plus Rebuttals A, B, and C) 30 The John Marshall Law Review 911-935 (1997). ABC News Nightline "America in Black and White: Race and the Criminal Justice System," (August 26, 1997).
Book ReadingWe, the Jury: none Judging the Jury: none Verdict: Assessing the Civil Jury System: Chapter 4. Punitive Damages: none. Cases: Baltimore and Carolina Line, Inc. v. Redman 295 U.S. 654 (1935). [edited] Beacon Theatres v. Westover 359 U.S. 500 (1959). [edited] Ross v. Bernhard 396 U.S. 531 (1970). [edited] Singer v. U.S. 380 U.S. 24 (1965). [edited] Duncan v Louisiana 391 U.S. 145 (1968), [edited] Baldwin v. NY 399 U.S. 66 (1970), [edited] Blanton v N. Las Vegas 489 U.S. 538 (1989), [edited] Supplemental Reading: Linda Silberman and Allan Stein, Civil Procedure: Theory and Practice, (Aspen Publishers, New York, 2001) pp. 682-688. Thursday, February 5.
Book ReadingWe, the Jury: pp. 97-144. Judging the Jury: pp. 47-57, 67-78. Verdict: Assessing the Civil Jury System: none. Punitive Damages: none. Cases: Strauder v. West Virginia 100 U.S. 303 (1880) [edited]. Swain v. Alabama 380 U.S. 202 (1965) [edited]. Batson v. Kentucky 476 U.S. 79 (1986) [edited]. J.E.B. v. Alabama 511 U.S. 127 (1994) [edited]. Supplemental Reading: Edward P. Schwartz and Warren F. Schwartz, "The Challenge of Peremptory Challenges," 12 Journal of Law, Economics, and Organizations 325 (1996). Stephen A. Saltzburg and Daniel J. Capra, American Criminal Procedure, (West Group American Casebook Series) pp. 1127-1132, 1136-1140 (2000). Friedman, "An Asymmetrical Approach to the Problems of Peremptories," 28 Criminal Law Bulletin 507 (1992). Helland, Light, and Richards, "An Asymmetrical Approach to the Problems of Peremptories: A Rebuttal." 29 Criminal Law Bulletin 242 (1993).
Book ReadingWe, the Jury: Chapter 4. Judging the Jury: pp. 57-67, 79-94. Verdict: Assessing the Civil Jury System: none. Punitive Damages: none. Cases: Rideau v. Louisiana 373 U.S. 723 (1963) [edited]. Groppi v. Wisconsin 400 U.S. 505 (1971) [edited]. Edmonson v. Leesville Concrete Co. 500 U.S.614 (1991) [edited]. Supplemental Reading: Franklin Strier and Donna Shestowsky, "Profiling the Profilers: A Study of the Trial Consulting Profession, its Impact on Trial Justice and What, if Anything, to Do About it," 1999 Wisconsin Law Review 441 (1999). Top Thursday, February 19.
Book ReadingWe, the Jury: Chapter 6. Judging the Jury: Chapter 14. Verdict: Assessing the Civil Jury System: none. Punitive Damages: none. Cases: Witherspoon v. Illinois 391 U.S. 510 (1968) [edited]. Wainwright v. Witt 469 U.S. 412 (1985) [edited]. Lockhart v. McCree. 476 U.S. 162 (1986) [edited]. Supplemental Reading: Edward P. Schwartz and Warren F. Schwartz, "Deciding Who Decides Who Dies: Capital Punishment as a Social Choice Problem," 1 Legal Theory 113 (1995). Frank Newport, "What Can We Learn from Americans' Views about the Death Penalty?" Gallup Poll Online Report, May 17, 2001. Jeffrey M. Jones, "Slim Majority of Americans Say Death Penalty Applied Fairly - Support for the Death Penalty Higher than in Recent Years," Gallup New Service, May 20, 2002. Thursday, February 26.
Book ReadingWe, the Jury: none Judging the Jury: Chapter 8. Verdict: Assessing the Civil Jury System: pp. 151-152, 217-229, 295-297, 355-360, 444-446. Punitive Damages: pp. 11-14, 77-82, 90-91, 222-224, 259-260. Cases: Mitchell vGonzales 54 Cal.3d. 1041 (1991) [edited]. Victor v. Nebraska, Sandoval v. California 511 U.S. 1 (1994) [edited]. Weeks v. Angelone. 528 U.S. 225 (2000) [edited]. Free v. Peters 12 F.3d 700 (7th Cir., 1993) [edited]. Supplemental Reading: Irwin A. Horowitz, "Reasonable Doubt Instructions: Commonsense Justice and Standard of Proof," 3 Psychology, Public Policy, and Law 285 (1997). Stephen P. Garvey, Sheri Lynn Johnson, and Paul Marcus, "Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases" 85 Cornell Law Review 627 (2000). William J. Bowers and Benjamin D. Steiner, "Choosing Life or Death: Sentencing Dynamics in Capital Cases," from Acker, Bohm and Lanier, eds., America's Experiment with Capital Punishment, (1998). Shari Seidman Diamond and Judith N. Levi, "Improving Decisions on Death by Revising and Testing Jury Instructions," 79 Judicature 224 (1996). Thursday, March 4.
Book ReadingNone. Cases: Remmer v. U.S. 347 U.S. 227 (1954) [edited]. U.S. v. Chiantese 546 F.2d 135 (1977) [edited]. U.S. v. Marques 600 F.2d 742 (1979) [edited]. Carson v. Polley 689 F.2d 562 (1982) [edited]. U.S. v. Webster 750 F.2d 307 (1984) [edited] U.S. v. Heller 785 F.2d 1524 (1986) [edited] U.S. v. Caporale 806 F.2d 1487 (1986) [edited] Marino v. Vasquez 812 F.2d 499 (1987) [edited] Tanner v. U.S. 483 U.S. 107 (1987) [edited] Supplemental Reading: Federal Rules of Evidence. Rule 606. "Competency of Juror as Witness." (1974). Stephen A. Saltzburg and Daniel J. Capra, American Criminal Procedure, (West Group American Casebook Series) pp. 1148-1149 (2000). Thursday, March 11. No class - Spring Break. Thursday, March 18.
Book ReadingWe, the Jury: none Judging the Jury: none. Verdict: Assessing the Civil Jury System: pp. 137-151, 152-159, 181-217, 230-235, 306-312, 363-371. Punitive Damages: Chapters 2 and 10. Cases: Kenney v. Scientific, Inc. 512 A. 2d. 1142 (1986) [edited]. Clements v. Green River Production Credit Association 754 S.W. 2d 867 (1988) [edited]. Bradley v. A.C. & S. Co., Inc.. 1989 WL 70834 (1989) [edited]. Supplemental Reading: Michael J. Saks, "What do Jury Experiments Tell Us about How Juries (Should) Make Decisions?" 6 Southern California Interdisciplinary Law Journal 1 (1997). [Sections I-V]. Thursday, March 25.
Book ReadingWe, the Jury: Chapter 5. Judging the Jury: Chapter 11. Verdict: Assessing the Civil Jury System: pp. 159-162, 288-294, 297-300. Punitive Damages: Chapter 3. Cases: Apodaca v. Oregon 406 U.S. 404 (1972). [edited] Johnson v. Louisiana [separate opinions] 406 U.S. 365-399 (1972). Williams v. Florida 399 U.S. 78 (1970). [edited] Supplemental Reading: Michael J. Saks, "What do Jury Experiments Tell Us about How Juries (Should) Make Decisions?" 6 Southern California Interdisciplinary Law Journal 1 (1997). [Sections VI-IX]. Edward P. Schwartz and Warren F. Schwartz. "And So Say Some of Us. What to do When Jurors Disagree," 9 Southern California Interdisciplinary Law Journal 429 (2000). Top Thursday, April 1.
Book ReadingWe, the Jury: none. Judging the Jury: Chapter 9. Verdict: Assessing the Civil Jury System: pp. 162-164, 399-404. Punitive Damages: Chapter 4. Cases: Peyton v. U.S. 709 A.2d 65 (DC Court of Appeals, 1998). [edited] U.S. Borax and Chemical v. Archer-Daniels-Midland Co., 506 N.W.2d 456 (Iowa, 1993) [edited]. Supplemental Reading: Joel D. Lieberman and Jamie Arndt. "Understanding the Limits of Limiting Instructions" 6 Psychology, Public Policy, and Law 677 (2000).
Book ReadingWe, the Jury: none. Judging the Jury: none. Verdict: Assessing the Civil Jury System: pp. 149-150, 197-199. Punitive Damages: Chapters 1, 11, 12 and 13. Cases: State Farm v. Campbell Unpublished U.S. Supreme Court opinions, No. 01-1289 (April 7, 2003). Supplemental Reading: Lyle Denniston. "Limits Set on Punitive Verdicts" Boston Globe (April 7, 2003). Jeff Arnold. "Local Legislators Say Tort Reform Bill Flawed," Southwestern Times Record (February 3, 2003). Rand Institute for Civil Justice. "Punitive Damage Awards in Financial Injury Jury Verdicts," Rand Research Brief RB-9028 (1997). "Bush outlines medical liability reform," CNN.com (January 16, 2003). "Dr. Sanjay Gupta: Malpractice 'jackpot justice,'" CNN.com (January 17, 2003). Thursday, April 15 (If possible).
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