Frank Allen: An Appreciation

Francis Allen was the Dean who hired me. First deans are, in their own way, as memorable as first kisses; they set expectations for all that follows. The expectations that Frank Allen set were high indeed. In this young professor\u27s mind (I was 24 when I received my offer; 25 when I joined the faculty) he embodied what I still regard as the two most important academic virtues: scholarship and decency. These virtues combined to make him, at the time he accepted the Michigan deanship, perhaps the nation\u27s most powerful voice for criminal justice reform and the country\u27s leading scholar of criminal procedure, or so I was told in my first year by a visiting specialist in this area. Later, when he left the deanship, generations of students would directly benefit from Frank\u27s virtues, as he not only stepped gracefully into a teaching role but also became, almost immediately, one of those professors whom students universally acclaim as special

Low Probability/High Consequence Events: Dilemmas of Damage Compensation

This article was prepared for a Clifford Symposium which challenged paper writers to imagine how our system of tort compensation might look in the year 2020. This paper responds to an aspect of the general challenge: to imagine a tort recovery system which would deal adequately with rare and catastrophic events. To get a handle on this problem, the paper looks closely at how the legal system compensated damages attendant on four recent events that might be considered “rare and catastrophic” – Three Mile Island, 9/11, Hurricane Katrina and the Exxon Valdez oil spill. In no case did the system of compensation meet all the desiderata of a well-functioning tort compensation scheme, but the two no-fault schemes which provided the bulk of the compensation to those injured in the Three Mile Island and 9/11 disasters seem to have done better than the “ordinary” tort system which provided the bulk of the individual compensation for the damages caused by Hurricane Katrina and the Exxon Valdez oil spill. The 9/11 compensation scheme may, however, have been sui generis since it appears to have reflected both a national coming together after an attack on the homeland and Congressional efforts to protect the airline industry, and the Price-Anderson compensation scheme, which worked well in Three Mile Island, might have failed utterly had the disaster been on the scale of Chernobyl. Ultimately, the article concludes, no imaginable compensation scheme is likely to adequately handle a large, unique and unexpected catastrophe, but some improvements in current law and practice are possible and ad hoc political solutions, as with 9/11, may help in some cases

The American Jury System: A Synthetic Overview

This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one shot decision maker largely independent of trial court bureaucracies than in its ability to nullify the law. Despite flaws in the jury process and room for improvement, the message that emerges from the literature is that juries take their job seriously and for the most part perform well. There is little reason to believe that replacing jury trials with bench trials or mixed tribunals would improve the quality of American justice, and some reason to think it might harm it

The Impact of Executions on Homicides: A New Look in an Old Light

Ehrlich\u27s first point is that if one is searching for deterrence it is the law in action (i.e., the actual incidence of executions) rather than the law on the books (i.e., the presence or absence of the death penalty) which is crucial. His second point is that in order to spot deterrent effects other factors which might affect homicide rates, such as conviction rates and unemployment rates, must be held constant. Many of those who believe that Ehrlich\u27s work is fundamentally flawed nevertheless accept these criticisms. This article follows Sellin\u27s approach but takes account of Ehrlich\u27s criticisms. Instead of comparing states on the basis of whether or not they have capital punishment statutes, it compares states on the basis of the number of murderers executed. It does this by correlating differences in executions with differences in homicide rates. Focusing on differences in this way does not separate out causal factors other than executions for specific control, but it is arguably a reasonably good control for the variety of often unmeasurable factors that are historically specific to given states and likely to affect homicide rates. The results of this analysis are consistent with the basic finding of Sellin and others who have followed his procedures. The data provide no reason to believe that executions deter homicide. At the same time nothing about the data suggests that states that do not execute murderers enjoy lower homicide rates on this account. The results of the study may be limited because only states Sellin compared are examined and a number of arbitrary decisions had to be made. All such decisions were made a priori on theoretical grounds and are specifically noted in the paper. However, for these reasons it might not be unfair to treat the study as a pilot for an as yet unborn larger study that would look at data from the forty-eight contiguous states

Jury Size and the Pereumptory Challenge

The article was orginally submitted jointly with Dr. Jay Schulman as prepared testimony to the Senate Judiciary Subcommittee on Improvement of Judicial Machinery. The subcommittee was considering Senate Bill 2074, an omnibus bill which would have required all United States District Courts to switch from twelve to six member juries in civil cases and would have decreased the number of available peremptory challenges in civil cases from three to two. Upon completion of the hearings on this bill, these provisions were deleted from the version sent to the full Committee. It should be noted that most District Courts by local rule use six member juries in civil cases. The argument in the text suggests that the Congress might wish to forbid this pratice by statute or at least limit it to certain categories of cases

Review of \u3cem\u3eThe Legal Needs of the Public\u3c/em\u3e, \u3cem\u3e

Both the title, The Legal, Needs of the Public, and the subtitle, The Final, Report of a National, Survey, of this volume are, quite fortunately, inapt. The report does not seek to quantify the legal needs of the public or to determine whether needs are being met, and we are told by both Barbara Curran in her preface and Spencer Kimball in his foreword that this final report signifies the beginning and not the end of data analysis. This study (which I shall call the ABF study) is a joint undertaking of the American Bar Association Special Committee to Survey Legal Needs and the American Bar Foundation. It is the most recent of a number of survey studies that have sought information on popular attitudes toward lawyers and the legal system, the public\u27s experience with lawyers and the legal system, and the past incidence and distribution of situations where individuals might have benefited from legal services. This last focus has led some people to characterize this research as research on legal need, but, as Curran recognizes, situations where lawyers might have aided respondents are not necessarily situations where respondents needed lawyers. The fact that a problem is in some sense legal does not mean that an individual acting alone or with lay help cannot resolve it satisfactorily nor does it mean that it makes economic sense to hire a lawyer whenever professional help promises an incremental advantage

The American Jury System: A Synthetic Overview

This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one shot decision maker largely independent of trial court bureaucracies than in its ability to nullify the law. Despite flaws in the jury process and room for improvement, the message that emerges from the literature is that juries take their job seriously and for the most part perform well. There is little reason to believe that replacing jury trials with bench trials or mixed tribunals would improve the quality of American justice, and some reason to think it might harm it