Posted by: captainfalcon | September 12, 2010

Mildly Interesting Trivia

(Which, if you were an optimist, could also serve as this blog’s epitaph (to riff on a notorious theme).) New York once had a law requiring jurors to be “intelligent.” In 1896 an extortionist appealed his conviction on the grounds that his jury was stupid – sadly, the appellate court affirmed the jury’s verdict. Then, in 1947, the law was subjected to a constitutional challenge, and was upheld in a 5-4 Supreme Court decision (Feeyyy v. New York). It seems to have since been repealed.

This from “The Civil Jury in Historical Perspective,” the most interesting contentions of which (other than the foregoing) are (i) that civil juries and judges tend to agree on whether defendants are liable (which belies the myth that juries are pro-plaintiff and judges pro-defendant, though Friedman never explicitly addresses whether, in the class of cases where the plaintiff wins, juries award greater damages than judges do) and (ii) that, insofar as there’s been an increase in the kinds of activity that are found tortious, it is judges, not juries, that have precipitated it. After all, “Who developed the modern rules of strict liability for defective products? Who dismantled the harsh doctrines of the nineteenth century and replaced them with newer ones that are more friendly to plaintiffs? It was judges, not juries, who created the framework within which juries did their dirty work.”

(There are, of course, two ways of reading (i) and (ii). First, as evidence that the jury isn’t so bad. Second, as evidence of the worthlessness of both jury and judiciary.)

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