Civil Jury Research Articles

뉴스 빅데이터 분석을 통해 본 지역사회 갈등과 갈등 해소를 위한 민원배심제 운영

In this study, we reviewed the literature on community conflict and conflict mediation and performed empirical study with LDA-based topic modeling to understand conflict patterns in Suseong-gu, Daegu, and then analyzed cases of conflict mediation through the civil jury system. It was conducted based on analysis of civil complaint jury minutes for about 10 years (April 28, 2011 - July 3, 2019) and news data from the same period. From this, the implications of the civil jury system as a community conflict management mechanism were presented through an understanding of complex and multidimensional conflicts in the community. The main concepts of the Citizens' Jury System identified in the study consist of three components. Firstly, there are conflicting parties seeking understanding, followed by the forum of communication, which could be referred to as the “public sphere,” created through complaints arbitration meetings to facilitate dialogue. Lastly, there is the neutral third-party group who mediate to induce agreement among conflicting parties and thereby reduce or resolve conflicts. The process of the Citizens' Jury meetings not only prevents the polarization of conflicting groups but also holds significant implications beyond the institutional aspect of conflict resolution, including rational mediation by a third party well-versed in local community affairs, overcoming/solving rational ignorance through information sharing in the conflict public sphere, voluntary participation by complaints arbitrators, and compliance with arbitration decisions, contributing to the augmentation of social capital and effective conflict resolution.

Exemplary Damages Practice in Late Eighteenth and Early Nineteenth-Century England

Abstract A longer perspective on the modern Anglo-American law of exemplary (or punitive) damages views it as having first begun to emerge after the cases of Huckle v Money and Wilkes v Wood were decided in 1763. This article seeks to further deepen and clarify this perspective. It does so by systematically tracing the evolution of the adjudicative practice according to which English civil juries awarded ‘exemplary damages’ from the period circa 1764 to the early nineteenth century. It shows that this practice scarcely ‘hardened into law’ in the aftermath of the Huckle and Wilkes decisions. In fact, as had been the case long before 1763, for a long time after it, jury determinations as to exemplary damages in common law tort actions remained entirely outside the control of any formal legal doctrine which either of these decisions were taken to have authoritatively recognized.

The Abolition of the Right to Trial by Jury in Civil Cases in England

Abstract Prior to 1854, jury trial was the exclusive mode of resolving cases involving disputed facts at common law. By 1935, the civil jury trial had been virtually eliminated in all but a few obscure types of tort action. This article consists of a detailed examination, based primarily on legislative sources and contemporary legal periodicals, of how the right to trial by jury in civil cases was abolished. The first concrete step towards jury abolition occurred in 1854, when litigants in high court cases were empowered to waive their right to jury trial in favour of trial by judge alone. Thereafter, a series of legislative acts and judicial rules incrementally transferred the power to choose the mode of trial in particular types of cases from litigants to trial judges, who routinely chose trial by judge alone.

我国民事陪审制度的问题及完善研究

我国民事陪审制度的问题及完善研究

Jury Strikes Back

Ontario’s civil jury system has been the topic of many discussions about reform. However, none of these explorations contemplated the drastic effects of ever-evolving public health emergency. The COVID-19 pandemic has heightened Ontario’s access to civil justice crisis through extensive pandemic delays, while simultaneously challenging the role of civil jury in administering justice. Ontario consequently provides a ripe case study to explore how the pandemic has affected civil jury trials and to explore ways of enhancing their viability in a post-pandemic Ontario.
 
 This this article is concerned with advancing measures that can not only enhance the viability of civil jury trials going forward, but advance access to civil justice more generally. The purpose of this article is twofold. First, to examine how the pandemic has fundamentally challenged the viability of civil jury trials while exacerbating existing impediments to accessing civil justice. And second, to outline a multifaceted approach to reforming the jury trial to ensure it remains a viable vehicle for civil justice consistent with enhancing access to justice through the pandemic. The hope is that this article will inspire much needed exploration into Ontario’s civil justice system to address the consequences of the COVID-19 pandemic and future emergencies.

Challenges to Achieving Fairness in Civil Jury Selection

This paper identifies multiple challenges that courts face to achieving fairness in the selection of juries in civil cases. Achieving representative cross-sections of the community in jury venires, and ensuring that our civil juries reflect the community as well, are essential components contributing to the fairness and legitimacy of our civil justice system. Although legal rules and practices attempt to maximize fair and representative juries, the courts encounter substantial difficulty in achieving this important goal. Problems arise in summoning citizens for jury service, in questioning them during voir dire, and in exercising peremptory and for-cause challenges. Systematic empirical research on representativeness and new psychological studies on implicit and unconscious bias raise questions about the efficacy of current jury selection procedures. This paper identifies these problems and the challenges they present for producing representative and fair juries.

Advocacy through the Computer Screen: The Legal Permissibility of Jury Trial by Videoconference

The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties?While due process concerns might render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health crisis weighs in favor of allowing videoconference jury trials in civil cases. In fact, a civil jury trial by Zoom might not only be permissible; it might also be necessary to actualize the Seventh Amendment's protections, especially if the COVID-19 pandemic continues longer than expected. If courts allow digital jury trials, the risk of certain pitfalls—such as the possibility of someone recording the proceedings—must be clearly communicated to the parties in advance.This paper will appear in an ABA book on online court procedures, set to be published at some point in the future.

Copyright Liability and Music ‘Piracy’: Capitol Records v Thomas-Rasset

Illegal downloading of copyright materials by end-users had its heyday in the early 2000s, with music, television, and film studios desperately searching for a way to curb the tide of sharing. This chapter uses the example of Capitol Records v Jammie Thomas-Rasset, the first file-sharing case to be tried before a civil jury in the United States, to demonstrate the disproportionate penalties associated with P2P file-sharing. The matter concerned an individual’s sharing of 24 songs, and the damages varied between $222.000 and $1.92 million. Building on this copyright infringement case, the chapter ponders the appropriateness of copyright infringement damages in a world where many infringers see no profit from their copyright breaches. To reach this goal, the chapter discusses the content of the Thomas-Rasset case and the externalities of this judgement as well as copyright enforcement against P2P file-sharers in the US.

Equity, Law, and the Seventh Amendment

The Seventh Amendment requires that the civil jury trial right be “preserved” in “Suits at common law.” Those bits of constitutional text have long set the justices on a path of historical reconstruction. For roughly two centuries, the Supreme Court has determined the scope of the civil jury trial right in contemporary federal courts by reference to historic English courts. But no one is happy with the current test. In one widely used variant, it requires an inquiry into analogous 1791 actions, followed by an inquiry into the legal or equitable provenance of the remedy sought, and then a weighing that favors the second of these two incommensurable inquiries. The test is anachronistic and internally incoherent, and it leads to anomalous results. This Article critiques the current approach and offers a new test for the scope of the Seventh Amendment civil jury trial right. This test would presume a civil jury trial right, but with three categorical exceptions—one for claims developed in equity, another for remedies developed in equity, and a third for case-aggregating devices developed in equity (e.g., the class action). The historical inquiry that is required would be somewhat stylized. But it is more manageable than the current approach, and it would allow judges to determine the scope of the civil jury trial right with greater predictability and accuracy. Beyond addressing the scope of the Seventh Amendment right, this analysis also has implications for incorporation—should the states remain free to decide whether to retain a distinction between law and equity in their own courts?

A Study on the United Kingdom's civil jury system and its implications on public participation in civil justice

A Study on the United Kingdom's civil jury system and its implications on public participation in civil justice

The Verdict Is In: Online Jury Trials Are Possible

At the start of the COVID-19 pandemic, it was uncertain whether it would be possible to continue conducting civil jury trials. Now, however, the successful completion of both mock and real civil jury trials proves that online jury trials are possible, but that (due to confidentiality requirements) they will need to be at least partly conducted in person.

Trying an Accused Serial Sexual Harasser for Libel in a US Civil Court

Abstract The goal of this article is to provide a class of MeToo# victims of a high-profile serial sexual harasser with a non-invasive method for civil action, when the accused publicly dismisses the victims’ claims as lies. When these libelous claims do occur, the victims can be assembled into a class-action libel/defamation case, which in most US states must be mounted within two years of the claim. Because under current civil methods, the plaintiffs would be subject to intense cross-examination in a civil jury trial, class-action lawsuits with small numbers of plaintiffs (e.g. 5–8) have proven impossible to conduct. This article provides a blueprint to create a collaboration amongst the victims, credibility-assessment (lie-detector) experts, statisticians, and MeToo# attorneys to litigate libel suits, which will likely produce out-of-court settlements. Once the first case is successfully completed, precedent will be set to bring other perpetrators to justice, and act as a deterrent to future exploitation. The evidentiary basis would be based on testing the null hypothesis that all plaintiffs are lying, to compare the inferred lying rates of the plaintiffs to similar population controls, who would be known liars, to a “Yes” answer to “Did X sexually harass you?”

The Trial of Counting Trials

“It is clear that the number of jury trials declined in many, perhaps most, jurisdictions … over the last fifty years.” As Professor Marc Galanter writes, this decline reflects a long-term phenomenon with roots beginning in the early twentieth century. I’ve previously brainstormed the causes of the decline in civil jury trials. I recently decided to see whether I could quantify this decline. Specifically, are some states exempt from the downward trend in civil jury trials? For reasons scholars like Professor Herbert M. Kritzer have pointed out, I eventually found that — despite comprehensive federal data — accurately measuring the decline in civil jury trials by state is fraught, maybe impossible. This is due to differences in methodology by state, especially regarding fundamental questions like the proper definition of the word “trial.”

Appellate Courts and Civil Juries

In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation--which is now before the Supreme Court--exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over jury's verdict simply by characterizing particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of jury's verdict only when a reasonable jury would not have legally sufficient evidentiary basis to reach such verdict. Rule 50's reasonable-jury standard does not permit de novo review of jury's verdict on particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet, it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.

Perceptions of the Civil Jury System

Perceptions of the Civil Jury System

Implications of Judgment as a matter of law on FRCP for Civil Jury in Korea

Implications of Judgment as a matter of law on FRCP for Civil Jury in Korea

미국 민사배심원단 재판 제도에 관한 小考 - 법적 근거와 司法的 기능을 중심으로-

미국 민사배심원재판 제도의 역사를 일관하는 핵심 키워드는 직업법관들의 재판권 독점에 대항하는 일반 시민들의 자기지배체계 확립의 중요한 도구이자 국가 권력에 의한 사법권 남용 위험성에 대한 중요한 견제장치로서의 역할이라고 할 수 있다. 민사배심원재판 제도는 분쟁의 실체에 대한 판단 과정에 있어서 직업법관이 아닌 일반인의 사회적 정의 관념을 반영할 수 있다는 점에 그 제도적 우월성을 발휘하여 왔다. 미국에서 현재까지도 배심원재판이 유지되어 오면서 발전을 거듭한 배경에는 배심원단의 평결이 전통적으로 공동체의 보편적 가치와 문화를 적절히 반영하여 소송당사자와 일반인들의 기대를 상당한 정도로 충족시켜 왔고, 그 사실관계의 판단 능력에 있어서 직업법관들로부터도 상당한 호평을 받고 있다는 점에서 그 원인을 찾을 수 있다. 복잡하면서 사회공동체 전체의 이해관계가 걸려있는 사회적 분쟁이나 이슈(issue)에 관한 쟁송의 경우에도 배심원단을 통한 평결이 더욱 적절한 해결책이 될 수 있다. 특히 사회 집단 상호간의 이해관계가 첨예하게 대립하고 있는 경우에 1회적으로 구성되어 평결을 통하여 결론을 내린 후에 바로 해산하는 배심원단재판 제도는 직업법관이 그 역할을 맡았을 때 그들에게 집중될 수 있는 일방적 여론의 공격으로부터 사법부를 보호하는 역할을 할 수도 있다. 현대사회에서는 각 개인과 집단(회사), 국가(지방자치단체) 사이에 다양한 형태의 민사 분쟁이 발생하고 이해관계의 극단적 대립으로 인하여 법적·논리적 접근만으로 해결이 어려운 경우가 다수 발생하고 있다. 우리나라에서도 미국식 민사배심원재판의 위와 같은 장점을 참고하여 부분적으로나마 민사사법 시스템에 도입하는 방안을 검토할 필요가 있다. 미국의 경험을 참고하여 첨예하게 대립하고 있는 사회적 갈등이 소송사건화 되었을 때 민사배심원재판 제도를 부분적으로나마 도입하여 배심원단에게 그 판단을 맡기는 것도 하나의 해결책이 될 수 있다. 현실적으로 민사배심원재판 제도의 도입이 헌법 규정의 결여 등으로 인하여 실현하기 어렵다 하더라도 배심원단의 권한을 축소하여 판결의 전제가 되는 주요 핵심 쟁점사실에 대하여 확정하는 기능만을 수행하도록 하는 방안도 검토할 필요가 있다.

The Law of Negligence as Reported in The Times, 1785–1820

Historically, the clear recognition by the courts that all adults in public intercourse owe a duty of reasonable care to avoid injuring others has been seen as an early nineteenth century development. Occasionally it is recognized that what is known about the emergence of the tort of negligence in English law comes almost entirely from the printed reports of civil (plea side) cases tried in the three common law courts (King's Bench, Common Pleas, and Exchequer). It was not until the 1790s that regular printed reports of jury trials (or nisi prius cases, as they were called) began, and even then, enlightenment from the nisi prius reports was limited. Most of those reports were sketchy, and very few included instructions given to the jury by the trial judge. More importantly, the reports covered only a small fraction of the jury trials that were conducted by the common law courts. The overwhelming majority of civil jury trials ended with the jury verdict (or an occasional nonsuit), with no post-trial proceedings, and what happened in many thousands of these plea-side jury trials in the late eighteenth and early nineteenth centuries has been something of a black hole in the historical record.

When a corporation rapes: perceptions of rape in civil court for corporate defendants

ABSTRACTIn recent years, the coupling of poor outcomes for rape victims in criminal court and the widening scope of legal responsibility for sexual assault has prompted plaintiffs to file civil suits for rape against corporations. Unfortunately, we know little about juror perception of civilly litigated rape against corporate defendants and most jury research involving corporate defendants concerns non-sexual injury cases (e.g. premises liability, automobile accidents). With the increasing number of corporations being sued civilly for rape, we need to understand how civil juries perceive these cases. The present study investigated mock jurors’ perceptions of a fictional civil rape trial against a hotel. Community members (N = 155) read one of three trial summaries: Civil rape trial against the alleged perpetrator, civil rape trial against a hotel, or criminal rape trial. Results indicate females have higher pro-plaintiff judgments than males in civil court, perceptions of greed typically associated with civil litigation apply to rape, and favorable plaintiff decisions are most likely against a corporate defendant. Also, mental models suggest mock jurors conceptualize criminal and civil rape cases against an individual similarly. We discuss our results in terms of psychological, legal and practical expectations when suing for rape.

Expanding the Search for America's Missing Jury

Professor Suja Thomas offers a novel approach in her new book, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries. She begins by recognizing the jury as a constitutionally mandated institution possessing specific powers and limitations in relation to the executive, legislature, and judiciary. She then explains how these traditional government actors have gradually usurped the jury’s unique powers for themselves and so diminished the jury’s constitutional import. Juries are vanishing, then, because the other actors have emerged in their stead. As a solution, she proposes recognizing the jury as a “branch”— a coequal to and a significant check on the traditional branches (p. 5)—and offers a doctrinal approach she calls “relational originalism” to assure this position (p. 8). While The Missing American Jury provides an encompassing look at the jury’s decline, it is not complete. In the introduction, Professor Thomas explains her decision to omit arbitration and settlement from the discussion, choosing instead to focus only on “procedures imposed by the government to which parties do not consent or procedures such as plea bargaining to which a party may unwillingly consent” (p. 3). This omission is a rare misstep. The emergence of binding arbitration and private ordering of public adjudication has tracked and contributed to the decline in the civil jury’s constitutional esteem. The legislature and the judiciary have removed from the jury and vested it in private parties’ hands. In so doing, they have allowed powerful social and economic actors to sideline the civil jury and have shielded their own behavior from public scrutiny. These developments in private civil procedure are a necessary part of the discussion. This Review incorporates private procedure into Professor Thomas’s explanation for the jury’s disappearance. Part I analyzes Professor Thomas’s central premise that the jury has fallen in constitutional esteem due to power grabs by the traditional actors. It also considers her proposal to fill the doctrinal void that has allowed this decline. Part II provides a historical overview of the emergence of private procedure and stresses that this development mirrors those power grabs reviewed in the book. Finally, Part III applies Professor Thomas’s relational originalism doctrinal approach to private procedure.