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StephenRushinSecondPaper 3 - 17 Apr 2009 - Main.StephenRushin
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Remedying Legal Magic | |
<
< | -- Edited By Stephen Rushin - 16 Apr 2009 | | | -- Originally By JonathanFriedman - 27 Feb 2009
Introduction to The Role of Legal Magic | |
<
< | In Courts on Trial, Jerome Frank honestly examines the unspoken imperfections of our legal system. At the core of his argument is the observation that actors within our legal system are human beings, prone to imprecision and subjectivity. Further, in order to compensate for inadequate knowledge and a lack of certainty, our legal system relies upon mechanisms such as juries, which are ordained with a magical significance similar to "ordeals" in centuries past. Whereas in the past we placed the truth finding burden on the “knees of the gods,” now we place it on the “knees of men.” Nevertheless, while some might argue that such, "candor about courthouse ways is unwise," I would argue that such a candid observation can encourage a more well-refined public policy that compensates for judicial imprecision. | >
> | In Courts on Trial, Jerome Frank honestly examines the unspoken imperfections of our legal system. At the core of his argument is the observation that actors within our legal system are human beings, prone to imprecision and subjectivity. Further, in order to compensate for inadequate knowledge and a lack of certainty, our legal system relies upon mechanisms such as juries, which are ordained with a magical significance similar to "ordeals" in centuries past. Whereas in the past we placed the truth finding burden on the “knees of the gods,” now we place it on the “knees of men.” While some might argue that such, "candor about courthouse ways is unwise," I would argue that such a candid observation can encourage a more well-refined public policy that compensates for judicial shortcomings. | | | | |
<
< | Subjectivity and Imprecision Is Unavoidable | >
> | Subjectivity and Inaccuracy Are Unavoidable | | | | |
<
< | Subjectivity and Imprecision within the legal system are unavoidable, since as Holmes's observed, "behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment… the very root and nerve of the whole proceeding." As Frank would argue, when we do not understand or cannot clearly articulate a concept, we use a mythical or magical device to explain it. This level of subjectivity exists in both the fact finding and decision making stage of our courts. | >
> | Subjectivity and inaccuracy within are unavoidable in our legal system, since as Holmes's observed, "behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment… the very root and nerve of the whole proceeding." As Frank would argue, when we do not understand or cannot clearly articulate a concept, we use a mythical or magical justification to explain it. This level of subjectivity exists in both the fact finding and decision making stage of our courts. | | | | |
<
< | During fact finding, for instance, juries are given a prominent and mythical significance. As an institution, juries do not necessarily contribute to a fair or just outcome. Death penalty cases seem to be the most poignant example; juries often come to discriminatory and simply wrong conclusions. For example, Juries are empirically more likely to recommend that death penalty for a black man accused of killing a white man, than for a black man who kills another black individual. And yet, our Supreme Court has determined that such observable discrimination does not make the death penalty unconstitutional, according to McClesky v. Kemp. Further, one estimate places the number of innocent individuals on death row at one in nine. | >
> | During fact finding, for instance, juries are given a prominent and mythical significance, despite the fact that juries do not necessarily contribute to a fair or just outcome. Death penalty cases seem to be the most poignant example; juries often come to discriminatory and simply wrong conclusions. For example, juries are empirically more likely to recommend the death penalty for an African American accused of killing a white individual, than for African Americans accused of the same crime against a member of their own racial group. And yet, in McClesky v. Kemp, our Supreme Court determined that such observable discrimination does not make the death penalty unconstitutional. Further, 131 people in this country have been sentenced to death, only to later be exonerated or pardoned. | | | | |
<
< | Yet, despite the apparent imperfections with the jury system, our society continues to believe in its absolute efficacy, giving the institution incredible power with relatively little oversight. The discussions held during jury deliberations are completely secret, and we choose to protect these discussions from being read by counsel after trial. This means that while new trials can be granted for improper process, the reasoning of a jury is unassailable. Although I concede to Frank that trial judges are not transparent in their decisions about subjective facts, they must provide enough rationale for their decisions to protect them against being overturned on the appellate level (even if the standard of review is highly deferential). We are forced to blind ourselves with the illusion that jury decisions are fair, because any alternative threatens to bring down our ideas about democracy. We want to believe that there is a role for the populace in the judicial process beyond being merely a party to a suit. Of course in the process, we risk falsely convicting an innocent individuals. | >
> | Despite the apparent imperfections with the jury system, our society continues to believe in its efficacy, giving the institution incredible power with relatively little oversight. The discussions held during jury deliberations are completely secret, and we choose to protect these discussions from being read by counsel after trial. This means that while new trials can be granted for improper process, the reasoning of a jury is unassailable. We are forced to blind ourselves with the illusion that jury decisions are fair, because any alternative threatens to bring down our ideas about democracy. We want to believe that there is a role for the populace in the judicial process beyond being merely a party to a suit. Of course in the process, we risk falsely convicting an innocent individual. | | | | |
<
< | The voir dire system of choosing juries provides another example of the imperfections evident in the legal system. The rich are able to use use highly trained consultants to select a jury that will be statistically likely to rule in their favor. Moreover, we cannot escape the reality that the quality of counsel often depends on wealth. | >
> | In addition, the voir dire system of choosing juries provides another example of the imperfections evident in the legal system. The rich are able to use use highly trained consultants to select a jury that will be statistically likely to rule in their favor. Moreover, we cannot escape the reality that the quality of counsel often depends on wealth. | | | | |
<
< | In terms of decision-making, judges are often viewed as impartial mediators who apply rigid doctrine to reach a fair conclusion. This belief is admittedly comforting to society as a whole. We would like to believe the courts at all levels are free from the subjective and prejudicial influences that often affect the political branches of our government. The role of judge itself receives a deferential importance within our society. Yet, doctrine appears undeniably flexible. Judges, too, base their decisions upon personal judgments and individualized, subjective beliefs. | >
> | In terms of decision-making, judges are often viewed as referees who apply rigid doctrine to reach a fair, impartial conclusion. This belief is admittedly comforting to society as a whole. We would like to believe the courts at all levels are free from the subjective and prejudicial influences that often affect the political branches of our government. The role of judge itself receives an extremely high level of respect and deference within our society. Yet, judges often base their decisions upon personal judgments and individualized, subjective beliefs. | | | | |
<
< | Remedying The System | >
> | Possible Remedies | | | As Frank himself explained, "The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all of our citizens informed as to how the system functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts." | |
<
< | Communicated within this statement are two propositions are crucial to remedying our judicial system based on legal magic. First, not all of these shortcomings can be imminently eliminated. Nevertheless, these shortcomings must be compensated for in the best manner possible. Second, those instances of shortcomings which can be eliminated, must be eliminated immediately. | >
> | Communicated within this statement are two propositions crucial to remedying flaws within our judicial system. First, not all of these shortcomings can be imminently eliminated, although they must be compensated for in the best manner possible. Second, shortcomings which can be eliminated, must be eliminated immediately. | | | | |
<
< | Perhaps the jury, although not a bastion for impartiality or substantial fairness, provides the most comfortable medium for us to contain the inevitable abundance of unpredictability in the law. Whether fact-finding is ultimately done by a judge or jury, complete impartiality is impossible. But the jury does provide a legitimately positive safety mechanism by requiring unanimity. At the same time, I would argue that the comparative benefit of secretive jury deliberations is outweighed by the potential harm; secret deliberations seem to portray the jury as an institution above certain levels of scrutiny. Although it may be administratively challenging, providing counsel with transcripts of jury deliberations would be a just and positive step. | >
> | Perhaps the jury, although not a bastion for impartiality or substantial fairness, provides the most comfortable medium for us to contain the inevitable abundance of unpredictability in the law. Whether fact-finding is ultimately done by a judge or jury, complete impartiality is impossible. But the jury does provide a legitimately beneficial safety mechanism by requiring unanimity. At the same time, I would argue that the comparative benefit of secretive jury deliberations is outweighed by the potential harm; secret deliberations seem to portray the jury as an institution above certain levels of scrutiny. Although it may be administratively challenging, providing counsel with transcripts of jury deliberations would be a just and positive step. | | | | |
<
< | In addition, I would argue that weakening penalties would be a positive step towards acknowledging the limits of our legal system. We know that subjectivity is inevitable and the conviction of the innocent will happen on occasion. Weaker penalties and a focus on rehabilitation as opposed to retribution would be a positive step towards limiting the adverse effects of over-inclusiveness. | >
> | In addition, I would argue that weakening punishment on many crimes would be a positive step towards acknowledging the limits of our legal system. We know that subjectivity is inevitable and the conviction of the innocent will happen on occasion. Weaker penalties and a focus on rehabilitation as opposed to retribution would be a positive step towards limiting the adverse effects of over-inclusiveness. | | | | |
<
< | But perhaps the ultimate reality is that our legal system is riddled with shortcomings. Our system continually compromises accuracy at the expense of administrative ease. In the end, part of creating a fair and just legal system is properly balancing administrative ease with justice. | >
> | But perhaps the ultimate reality is that our legal system is riddled with shortcomings. Our system continually compromises accuracy at the expense of administrative ease. Rather than denying this deficiency, we as a society must be willing to admit to this problem and begin a serious discussion on possible solutions. In the end, part of creating a satisfactory legal system is properly balancing administrative ease with justice. |
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StephenRushinSecondPaper 2 - 17 Apr 2009 - Main.StephenRushin
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< | Performing Legal Magic through the Jury | >
> | Remedying Legal Magic | | | | |
<
< | -- By JonathanFriedman - 27 Feb 2009 | >
> | -- Edited By Stephen Rushin - 16 Apr 2009
-- Originally By JonathanFriedman - 27 Feb 2009 | | | | |
>
> | Introduction to The Role of Legal Magic | | | | |
<
< | Legal Magic and its Role in the Courts
The role of legal magic, as described by Jerome Frank, has to a large extent transcended new developments in the application of justice for thousands of years. Long ago, the veracity of an accused person’s testimony would be tested by submitting him to a trial by fire, water, or morsel. If, in the eyes of the decision makers, the accused successfully passed his ordeal, he was deemed to be telling the truth. Later, oaths were administered that begged a higher power to smite the oath-taker with a horrible curse if he told a lie. Today, our witnesses swear on bibles before taking the stand; a practice that for a long time lead to the disqualification of atheists as witnesses. In each of these scenarios, we use the magic by resorting to some power beyond our control to guide us in making important decisions, despite the fact that these decisions are, nevertheless, completely subjective. Our fears, doubts, and ignorance combine to compel us to need an illusion to give credence to a system of justice. | >
> | In Courts on Trial, Jerome Frank honestly examines the unspoken imperfections of our legal system. At the core of his argument is the observation that actors within our legal system are human beings, prone to imprecision and subjectivity. Further, in order to compensate for inadequate knowledge and a lack of certainty, our legal system relies upon mechanisms such as juries, which are ordained with a magical significance similar to "ordeals" in centuries past. Whereas in the past we placed the truth finding burden on the “knees of the gods,” now we place it on the “knees of men.” Nevertheless, while some might argue that such, "candor about courthouse ways is unwise," I would argue that such a candid observation can encourage a more well-refined public policy that compensates for judicial imprecision. | | | | |
<
< |
- This is not really historically accurate. Why is giving a less than responsible account of historical development the best use of this crucial first paragraph?
| >
> | Subjectivity and Imprecision Is Unavoidable | | | | |
<
< | In Courts on Trial, Frank examines the fallacy of the belief that judges are predictable in their decision making. The claim that an adherence to legal rules delivers us from a need for magic is excoriated as nonsense, in light of the fact that the interpretation of facts is inherently subjective. We use the swearing in of witnesses to provide the illusion of truth, but even assuming that all testimony is given in the most sincere and complete form possible, two fact-finders could (and often do) still end up disagreeing on what actually happened. This means that there is no reason to believe that any individual ruling on the facts of a case lines up with what actually occurred. Whereas in the past we placed the truth finding burden on the “knees of the gods,” now we place it on the “knees of men.” | >
> | Subjectivity and Imprecision within the legal system are unavoidable, since as Holmes's observed, "behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment… the very root and nerve of the whole proceeding." As Frank would argue, when we do not understand or cannot clearly articulate a concept, we use a mythical or magical device to explain it. This level of subjectivity exists in both the fact finding and decision making stage of our courts. | | | | |
>
> | During fact finding, for instance, juries are given a prominent and mythical significance. As an institution, juries do not necessarily contribute to a fair or just outcome. Death penalty cases seem to be the most poignant example; juries often come to discriminatory and simply wrong conclusions. For example, Juries are empirically more likely to recommend that death penalty for a black man accused of killing a white man, than for a black man who kills another black individual. And yet, our Supreme Court has determined that such observable discrimination does not make the death penalty unconstitutional, according to McClesky v. Kemp. Further, one estimate places the number of innocent individuals on death row at one in nine. | | | | |
<
< | What is the evidence that juries perform magic (or rather that we perform magic through juries)?
In the United States, we have created a right to a trial by jury in through the ratification of the 6th Amendment to the Constitution. At the time of the amendment’s creation, the framers sought a way to place a public check on the powers of the government in deciding and adjudicating matters. They believed that the jury would prevent the abuse of the citizens by the aristocratic ruling class of the government through the judiciary. | >
> | Yet, despite the apparent imperfections with the jury system, our society continues to believe in its absolute efficacy, giving the institution incredible power with relatively little oversight. The discussions held during jury deliberations are completely secret, and we choose to protect these discussions from being read by counsel after trial. This means that while new trials can be granted for improper process, the reasoning of a jury is unassailable. Although I concede to Frank that trial judges are not transparent in their decisions about subjective facts, they must provide enough rationale for their decisions to protect them against being overturned on the appellate level (even if the standard of review is highly deferential). We are forced to blind ourselves with the illusion that jury decisions are fair, because any alternative threatens to bring down our ideas about democracy. We want to believe that there is a role for the populace in the judicial process beyond being merely a party to a suit. Of course in the process, we risk falsely convicting an innocent individuals. | | | | |
<
< |
- This is not close to historically or legally accurate. It implies that the jury is an American invention, or that some legal innovation is occurring.
| >
> | The voir dire system of choosing juries provides another example of the imperfections evident in the legal system. The rich are able to use use highly trained consultants to select a jury that will be statistically likely to rule in their favor. Moreover, we cannot escape the reality that the quality of counsel often depends on wealth. | | | | |
<
< | Juries were created to protect the citizens of the U.S. against the potential tyranny of the government. At that time, the definition of what it meant to be a “person” under the law was starkly different from our conception today. Now, we are far more concerned about the prejudices of the jury members based on race, class, religion, or even age or about the fact that jurors cannot comprehend complex issues than we are about judges who might abuse the gavel. | >
> | In terms of decision-making, judges are often viewed as impartial mediators who apply rigid doctrine to reach a fair conclusion. This belief is admittedly comforting to society as a whole. We would like to believe the courts at all levels are free from the subjective and prejudicial influences that often affect the political branches of our government. The role of judge itself receives a deferential importance within our society. Yet, doctrine appears undeniably flexible. Judges, too, base their decisions upon personal judgments and individualized, subjective beliefs. | | | | |
<
< |
- This might be history or it might not; one can no longer tell.
| >
> | Remedying The System | | | | |
<
< | The idea that the jury, as an institution, contributes to the fair or correct outcome of a case is magical thinking. The reasoning of juries is completely opaque, and we have no choice but to protect the jury deliberation with an iron curtain. This means that while new trials can be granted for improper process, the reasoning of a jury is unassailable. Although I concede to Frank that trial judges are not transparent in their decisions about subjective facts, they must provide enough rationale for their decisions to protect them against being overturned on the appellate level (even if the standard of review is highly deferential). | >
> | As Frank himself explained, "The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all of our citizens informed as to how the system functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts." | | | | |
<
< |
- Is this true? Why is it true?
| >
> | Communicated within this statement are two propositions are crucial to remedying our judicial system based on legal magic. First, not all of these shortcomings can be imminently eliminated. Nevertheless, these shortcomings must be compensated for in the best manner possible. Second, those instances of shortcomings which can be eliminated, must be eliminated immediately. | | | | |
<
< | We are forced to blind ourselves with the illusion that jury decisions are fair, because any alternative threatens to bring down our ideas about democracy. We want to believe that there is a role for the populace in the judicial process beyond being merely a party to a suit, but in the process, we leave more up to chance than the founders imagined. | >
> | Perhaps the jury, although not a bastion for impartiality or substantial fairness, provides the most comfortable medium for us to contain the inevitable abundance of unpredictability in the law. Whether fact-finding is ultimately done by a judge or jury, complete impartiality is impossible. But the jury does provide a legitimately positive safety mechanism by requiring unanimity. At the same time, I would argue that the comparative benefit of secretive jury deliberations is outweighed by the potential harm; secret deliberations seem to portray the jury as an institution above certain levels of scrutiny. Although it may be administratively challenging, providing counsel with transcripts of jury deliberations would be a just and positive step. | | | | |
<
< |
- What has happened to jurors since the beginning of the Republic? Had they some different understanding of what a jury is and what it does?
| >
> | In addition, I would argue that weakening penalties would be a positive step towards acknowledging the limits of our legal system. We know that subjectivity is inevitable and the conviction of the innocent will happen on occasion. Weaker penalties and a focus on rehabilitation as opposed to retribution would be a positive step towards limiting the adverse effects of over-inclusiveness. | | | | |
<
< | The Enigma of the Voir Dire: An Injection of Science?
The voir dire system of choosing juries is dominated by the use of highly trained consultants to provide detailed data on demographics to allow the lawyers to choose a jury that will be statistically likely to rule favorably.
- "Dominated" is an exaggeration. There has to be either a great deal of money or a rich man's freedom at stake before consultants enter the picture.
This in no way reflects the interest in having a cross-section of the community deciding cases that has been so adamantly proponed
in standing case law. There is something unsettling about being able to predict the outcome of a case with some degree of certainty before the opening arguments are ever given. This is quite possibly an evolution that was unforeseeable to Frank in 1949.
- Because it wasn't true in the local courts of the eighteenth century? Have juries ever been more predictable than they were when they came from small face to face societies in which everyone was known to everyone else? The anonymous big-city jury of 19th and 20th century America is the outlier. Your logic needs to adjust to the reality.
Frank did acknowledge that even in cases of property law that were once thought to be subject to consistent outcomes, “the pulchritude of the plaintiff or his religion or his economic status or the manners of the respective attorneys, or the like, may well be the determining factor inducing the decision.” Consequently, we have a system in which lawyers are compelled to acquire cosmetic surgery such as chin implants and face lifts in order to look more appealing to jurors.
- *Compelled*? What do you think is the chin implant per litigator ratio in the US? 0.95 or 0.0001?
Conclusion: Is the system defensible anyway?
- It is usually a mistake to conclude on a question. It is usually a mistake to ask a question ending in "anyway." It is really a mistake to combine these two mistakes.
It may be true that juries cannot be trusted to make correct decisions, and their lines of reasoning are not subject to public scrutiny. However, the jury, in its most ideal sense, provides a fluid way of keeping changes in public sentiments involved in the everyday actions of our government that is not available in other branches that are affected by the public’s opion only very slowly. As Frank suggests, we cannot avoid having a modicum of magic involved in the system. Perhaps the jury, although not a bastion for impartiality or substantial fairness, provides the most comfortable medium for us to contain the inevitable abundance of unpredictability in the law.
- So after all this tub-thumping you're going to end up concurring on other grounds? Including an agreement that we cannot avoid having a modicum of bullshit in the middle of our system of truth-finding? Why did you bother pretending that you were willing to ask daring questions if the only catch was that you weren't willing to discover daring answers?
| >
> | But perhaps the ultimate reality is that our legal system is riddled with shortcomings. Our system continually compromises accuracy at the expense of administrative ease. In the end, part of creating a fair and just legal system is properly balancing administrative ease with justice. |
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StephenRushinSecondPaper 1 - 17 Apr 2009 - Main.StephenRushin
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| META TOPICPARENT | name="SecondPaper" |
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Performing Legal Magic through the Jury
-- By JonathanFriedman - 27 Feb 2009
Legal Magic and its Role in the Courts
The role of legal magic, as described by Jerome Frank, has to a large extent transcended new developments in the application of justice for thousands of years. Long ago, the veracity of an accused person’s testimony would be tested by submitting him to a trial by fire, water, or morsel. If, in the eyes of the decision makers, the accused successfully passed his ordeal, he was deemed to be telling the truth. Later, oaths were administered that begged a higher power to smite the oath-taker with a horrible curse if he told a lie. Today, our witnesses swear on bibles before taking the stand; a practice that for a long time lead to the disqualification of atheists as witnesses. In each of these scenarios, we use the magic by resorting to some power beyond our control to guide us in making important decisions, despite the fact that these decisions are, nevertheless, completely subjective. Our fears, doubts, and ignorance combine to compel us to need an illusion to give credence to a system of justice.
- This is not really historically accurate. Why is giving a less than responsible account of historical development the best use of this crucial first paragraph?
In Courts on Trial, Frank examines the fallacy of the belief that judges are predictable in their decision making. The claim that an adherence to legal rules delivers us from a need for magic is excoriated as nonsense, in light of the fact that the interpretation of facts is inherently subjective. We use the swearing in of witnesses to provide the illusion of truth, but even assuming that all testimony is given in the most sincere and complete form possible, two fact-finders could (and often do) still end up disagreeing on what actually happened. This means that there is no reason to believe that any individual ruling on the facts of a case lines up with what actually occurred. Whereas in the past we placed the truth finding burden on the “knees of the gods,” now we place it on the “knees of men.”
What is the evidence that juries perform magic (or rather that we perform magic through juries)?
In the United States, we have created a right to a trial by jury in through the ratification of the 6th Amendment to the Constitution. At the time of the amendment’s creation, the framers sought a way to place a public check on the powers of the government in deciding and adjudicating matters. They believed that the jury would prevent the abuse of the citizens by the aristocratic ruling class of the government through the judiciary.
- This is not close to historically or legally accurate. It implies that the jury is an American invention, or that some legal innovation is occurring.
Juries were created to protect the citizens of the U.S. against the potential tyranny of the government. At that time, the definition of what it meant to be a “person” under the law was starkly different from our conception today. Now, we are far more concerned about the prejudices of the jury members based on race, class, religion, or even age or about the fact that jurors cannot comprehend complex issues than we are about judges who might abuse the gavel.
- This might be history or it might not; one can no longer tell.
The idea that the jury, as an institution, contributes to the fair or correct outcome of a case is magical thinking. The reasoning of juries is completely opaque, and we have no choice but to protect the jury deliberation with an iron curtain. This means that while new trials can be granted for improper process, the reasoning of a jury is unassailable. Although I concede to Frank that trial judges are not transparent in their decisions about subjective facts, they must provide enough rationale for their decisions to protect them against being overturned on the appellate level (even if the standard of review is highly deferential).
- Is this true? Why is it true?
We are forced to blind ourselves with the illusion that jury decisions are fair, because any alternative threatens to bring down our ideas about democracy. We want to believe that there is a role for the populace in the judicial process beyond being merely a party to a suit, but in the process, we leave more up to chance than the founders imagined.
- What has happened to jurors since the beginning of the Republic? Had they some different understanding of what a jury is and what it does?
The Enigma of the Voir Dire: An Injection of Science?
The voir dire system of choosing juries is dominated by the use of highly trained consultants to provide detailed data on demographics to allow the lawyers to choose a jury that will be statistically likely to rule favorably.
- "Dominated" is an exaggeration. There has to be either a great deal of money or a rich man's freedom at stake before consultants enter the picture.
This in no way reflects the interest in having a cross-section of the community deciding cases that has been so adamantly proponed
in standing case law. There is something unsettling about being able to predict the outcome of a case with some degree of certainty before the opening arguments are ever given. This is quite possibly an evolution that was unforeseeable to Frank in 1949.
- Because it wasn't true in the local courts of the eighteenth century? Have juries ever been more predictable than they were when they came from small face to face societies in which everyone was known to everyone else? The anonymous big-city jury of 19th and 20th century America is the outlier. Your logic needs to adjust to the reality.
Frank did acknowledge that even in cases of property law that were once thought to be subject to consistent outcomes, “the pulchritude of the plaintiff or his religion or his economic status or the manners of the respective attorneys, or the like, may well be the determining factor inducing the decision.” Consequently, we have a system in which lawyers are compelled to acquire cosmetic surgery such as chin implants and face lifts in order to look more appealing to jurors.
- *Compelled*? What do you think is the chin implant per litigator ratio in the US? 0.95 or 0.0001?
Conclusion: Is the system defensible anyway?
- It is usually a mistake to conclude on a question. It is usually a mistake to ask a question ending in "anyway." It is really a mistake to combine these two mistakes.
It may be true that juries cannot be trusted to make correct decisions, and their lines of reasoning are not subject to public scrutiny. However, the jury, in its most ideal sense, provides a fluid way of keeping changes in public sentiments involved in the everyday actions of our government that is not available in other branches that are affected by the public’s opion only very slowly. As Frank suggests, we cannot avoid having a modicum of magic involved in the system. Perhaps the jury, although not a bastion for impartiality or substantial fairness, provides the most comfortable medium for us to contain the inevitable abundance of unpredictability in the law.
- So after all this tub-thumping you're going to end up concurring on other grounds? Including an agreement that we cannot avoid having a modicum of bullshit in the middle of our system of truth-finding? Why did you bother pretending that you were willing to ask daring questions if the only catch was that you weren't willing to discover daring answers?
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