Two Weeks at the Old Bailey: Jury Lessons from England

I spent two weeks observing jury trials and interviewing judges and barristers at the Old Bailey in London. There were several jury practices at the Old Bailey that would benefit American jurors, such as providing them with a jury bundle, and we should introduce such practices in the United States. There are other practices, such as eliminating peremptory challenges, which are worth adopting over time because there would be some initial resistance. There are many practices that the two systems share in common, such as allowing jurors to take notes, to ask questions of witnesses, and to have a written copy of the jury instructions, but these practices need to be encouraged more broadly. Finally, there are some English jury practices that would not serve American jurors well, and should be rejected, such as seating the defendant in the dock and accepting a majority verdict from the jury. From my two weeks at the Old Bailey, I learned that there is no one way to design a jury system and that we should be willing to look to other countries\u27 jury practices for ideas and inspiration

Introduction to Secrecy in Litigation

The clash between privacy and public disclosure in dispute resolution demands the attention of legal academics, empiricists, and practitioners. Recent advances in technology have made information accessible in ways that were inconceivable a few years ago. Parties to disputes find their thoughts and interactions open to far greater disclosure than ever before. At the same time, the move toward alternative dispute resolution (ADR) has effectively taken many disputes out of the public realm and has transformed them into private transactions. Whereas in the past the public could observe disputes resolved at trial, now many disputes are resolved behind the veil of ADR. Advances in technology and the move from courts to ADR have heightened the conflict between the right to privacy and the need for public disclosure. This symposium addresses the clash between privacy and public disclosure in dispute resolution from the perspectives of the public, the parties, the judge, and future litigants and examines various states\u27 reforms as well as their unintended consequences

Batson Revisited (symposium)

The twenty-fifth anniversary of Batson v. Kentucky provides an important moment to reflect on Batson and to consider how this seminal case and its progeny have affected the use and abuse of peremptory challenges. I had initially welcomed the U.S. Supreme Court’s approach to peremptory challenges in Batson back in 1986. Although Batson was a compromise—preserving peremptories while seeking to address discriminatory peremptories—it had the noble goal of trying to eliminate discrimination during jury selection. I also embraced its expansion over the years. The logic of Batson was inexorable: just as prosecutors should not be permitted to use peremptories to eliminate African Americans as jurors, so too, defense attorneys and civil parties should be similarly constrained. Just as African Americans should not be subjected to discriminatory peremptories, so too, members of any race, ethnicity, or gender should not be subjected to discriminatory peremptories. However, over time I developed serious doubts that Batson and its progeny could achieve their central goal of eliminating discrimination during jury selection. Now, with twenty-five years of experience, we can look back and see just how ineffective Batson has been. This anniversary is an appropriate juncture to renew the call for the elimination of the peremptory challenge, echoing Justice Thurgood Marshall’s recommendation in his Batson concurrence twenty-five years ago

\u3cem\u3eBatson v. Kentucky\u3c/em\u3e Reflections Inspired by a Podcast

An episode of More Perfect, a podcast devoted to the US. Supreme Court, focused on Batson v. Kentucky, which just marked its thirtieth anniversary. This podcast serves as the starting point for reflections on Batson v. Kentucky, a case in which the Court maintained the peremptory challenge while trying to eliminate discriminatory peremptory challenges. The podcast contributes to our understanding of Batson in several ways. First, it allows listeners to hear from participants in the case and how they viewed their situation at the time. Second, it considers whether Batson has been effective in ridding jury selection of race-based peremptory challenges. A growing number of academics and judges take the view that Batson should be abandoned and peremptory chalenges should be elimuinated Third, the podcast raises the question whether eliminating the peremptory challenge represents a loss of faith in America, as one lawyer suggests. This Article challenges that notion and argues that clminating the peremptory challenge represents a faith in America and in Americans to perform their role as jurors