The Surprising Views of Montesquieu and Tocqueville about Juries: Juries Empower Judges

Both Montesquieu and Tocqueville thought that an independent judiciary was key to maintaining a moderate government of ordered liberty. But judicial power should not be exercised too openly, or the people would view judges as tyrannical. In Montesquieu\u27s and Tocqueville\u27s view, the jury was an excellent mask for the power of judges. Both Montesquieu and Tocqueville thought that popular juries had many weaknesses in deciding cases. But, as Tocqueville made clear, the firm guidance of the judge in instructions on law and comments on evidence could prevent juries from going astray and make the institution a free school for democracy. The Article explores Montesquieu\u27s legacy concerning judges and juries in the arguments of both the Federalists and the Anti-Federalists. It also examines the American antecedents of Tocqueville\u27s idea of the jury as a school for democracy

The Worldwide Popular Revolt Against Proportionality in Self-Defense Law

This article examines popular dissatisfaction with the proportionality standard in self-defense law, which holds that the prevention of harm cannot be achieved by causing harm that is disproportionate. Legal elites, such as prosecutors, judges, and legal scholars, have long championed versions of this standard. But there is an increasingly widespread movement in the United States and Europe to modify elite notions of proportionality. Common to these movements is the desire to replace complicated balancing tests with clearer rules, which would limit the discretion of prosecutors and judges, and to permit use of deadly force against attackers in more situations. Fueling the movements is the belief that government is not able or willing to adequately protect its citizens. While these reform movements are occurring in many countries, the article focuses on three places in particular: Florida, Britain, and Belgium. For each place, the author discusses events that led to dissatisfaction with existing rules, political debates surrounding reform, and detailed legislative action. Efforts in Florida and Britain show an approach to reform that centers on presumptions that deadly force may be used in certain situations, such as a forcible entry into a home. Efforts in Belgium show another approach, which is in effect an expansion of provocation doctrine: anyone who exceeds the bounds of proportionality because of emotion (fear, anxiety, or panic) caused by attack or threat of attack is not criminally liable. The paper then analyzes the two types of efforts. The author concludes that emotions caused by attack are proper grounds for mitigation, but not for complete exoneration. Reforms that emphasize presumptions may be justified, particularly presumptions about the use of force against those who forcibly intrude into the home

How the Creation of Appellate Courts in England and the United States Limited Judicial Comment on Evidence to the Jury

The practice of judicial comment on the evidence has traditionally been the main form of jury control. Previous scholarly work has focused on the loss of the power in state courts, and has attributed the decline of judicial comment to a strict separation of functions between judge and jury and to regional differences in legal culture. This article examines two jurisdictions in which the power of comment long remained strong, at least in theory: the High Court of England, with its predecessors, and the federal courts in the United States. In both jurisdictions, judicial power to comment has been limited and in practice reduced, in the federal courts severely. The article reveals that this limitation developed with the advent of courts of appeal with separate personnel and especially of appeals in criminal cases.Lack of appeal, or limited appeal, has been a distinctive trait of common law systems, particularly in criminal cases. There was no appeal as of right in criminal cases until 1907 in England, and 1889 in the federal courts. In the federal system, the early movements to allow appeals in criminal cases and to limit judicial comment on evidence focused on controlling a particular judge: Isaac Parker, U.S. District Judge for the Western District of Arkansas, who presided over more than 100 trials for capital crimes occurring in the Indian Territory from 1875 to 1896

The Rise of Directed Verdict: Jury Power in Civil Cases Before the Federal Rules of 1938

Jury practice in the state and federal courts evolved dramatically in the nineteenth and early twentieth century. Around the time of the ratification of the Bill of Rights in 1791, important legal thinkers praised the civil jury as a bulwark against judicial tyranny. By the advent of the Federal Rules of Civil Procedure in 1938, many commentators regarded the civil jury as an antiquated nuisance. Diminishment of the jury and open exercise of judicial power, encouraged in the Federal Rules by procedures such as summary judgment, would not have been possible without earlier changes in jury practice. Two major changes were the rise of directed verdict procedure and the related judgment notwithstanding the verdict. These mechanisms allowed a judge to give a binding instruction to a jury, or to enter a judgment contrary to the jury’s decision. This Study reveals that railroads revolutionized the law of jury control. Changes in directed verdict were part of a larger program of jury reform beginning in the mid-nineteenth century in England, the states, and the federal government. Because of growing numbers of complicated personal injury suits against railroads, and because of perceived jury bias in those cases, many judges sought to control juries more efficiently. Directed verdicts began to replace new trials. Opposition arose, but the overall trend was toward greater judicial control of juries. The striking changes in jury practice described in this Article suggest difficulties in maintaining a consistent jury trial right by constitutional requirement

Thomas Nast\u27s Crusading Legal Cartoons

The cartoonist Thomas Nast (1840-1902) was in his heyday a political institution, with each of his pictures helping to form public opinion. His influence reached its height in the late 1860s and early 1870s with his relentless caricatures of Boss Tweed and the Tammany Hall Ring in New York City. One part of Nast’s work not often highlighted but as brilliant as the rest is his legal cartoons. Nast’s best work was done with high moral zeal, and his satire of lawyers and the legal system was no exception. His attacks grew out of frustration with the ineffectiveness of legal remedies against the Ring. He was especially incensed that prominent lawyers such as David Dudley Field not only were willing to represent members of the Ring, but could cleverly exploit legal technicalities of their own making to win advantage. Nast excoriated the corruption and bribery of the bench by the Ring, and also, more generally, the adversarial system as it was developing in America

The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury

Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta—particularly the provisions concerning the “law of the land” and “judgment of his peers”—embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority. Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law of seditious libel, customs taxes, and debts to British merchants. It was no wonder Americans held the jury in high esteem, at least until they had to run their own governments. Americans filled their constitutions, both federal and state, with rights to jury trial. Several American states even included translations of provisions from Magna Carta in their constitutions, enshrining the “judgment of his peers.” Once Americans had achieved independence and formed the new republics, judges faced the task of interpreting these thirteenth-century provisions as eighteenth- and nineteenth-century law. American judges quoted Blackstone and historical treatises. Through the nineteenth century, however, American enthusiasm for juries waned. The much-repeated phrases from Magna Carta became a flimsy screen, masking the steady decline of jury power

The Worldwide Popular Revolt Against Proportionality in Self-Defense Law

This article examines popular dissatisfaction with the proportionality standard in self-defense law, which holds that the prevention of harm cannot be achieved by causing harm that is disproportionate. Legal elites, such as prosecutors, judges, and legal scholars, have long championed versions of this standard. But there is an increasingly widespread movement in the United States and Europe to modify elite notions of proportionality. Common to these movements is the desire to replace complicated balancing tests with clearer rules, which would limit the discretion of prosecutors and judges, and to permit use of deadly force against attackers in more situations. Fueling the movements is the belief that government is not able or willing to adequately protect its citizens. While these reform movements are occurring in many countries, the article focuses on three places in particular: Florida, Britain, and Belgium. For each place, the author discusses events that led to dissatisfaction with existing rules, political debates surrounding reform, and detailed legislative action. Efforts in Florida and Britain show an approach to reform that centers on presumptions that deadly force may be used in certain situations, such as a forcible entry into a home. Efforts in Belgium show another approach, which is in effect an expansion of provocation doctrine: anyone who exceeds the bounds of proportionality because of emotion (fear, anxiety, or panic) caused by attack or threat of attack is not criminally liable. The paper then analyzes the two types of efforts. The author concludes that emotions caused by attack are proper grounds for mitigation, but not for complete exoneration. Reforms that emphasize presumptions may be justified, particularly presumptions about the use of force against those who forcibly intrude into the home

The Intersection of Two Systems: An American on Trial for an American Murder in the French Cour D\u27Assises

This study discusses a murder case in France\u27s trial court for the most serious crimes, the Cour d\u27assises. The case was highly unusual because the person on trial was an American, accused of having murdered other Americans in the United States. For reasons given below, cases in which crimes committed in the United States are tried abroad are likely to become more common. This study describes how such a case proceeds, including some of the difficulties that can arise from combining two investigations controlled by very different systems of procedure. An advice section is given for American prosecutors and defense advisers involved in such cases. More broadly, the study sheds light on the differences between the U.S. and continental legal systems, in part building on existing work in the area of comparative criminal procedure and drawing on French sources. The study emphasizes the effects of judicial control over trial on presentation of oral testimony, especially that of the defendant and experts. There are drawbacks to the French approach to oral testimony, such as less vigorous probing of testimony by the parties. There are also advantages, including allowing more information to be known to the fact-finders; permitting a more flexible order of presentation; and fostering dignitary values by letting witnesses speak in their natural voices and by achieving a deeper understanding of the defendant as a unique human being

How the Creation of Appellate Courts in England and the United States Limited Judicial Comment on Evidence to the Jury

The practice of judicial comment on the evidence has traditionally been the main form of jury control. Previous scholarly work has focused on the loss of the power in state courts, and has attributed the decline of judicial comment to a strict separation of functions between judge and jury and to regional differences in legal culture. This article examines two jurisdictions in which the power of comment long remained strong, at least in theory: the High Court of England, with its predecessors, and the federal courts in the United States. In both jurisdictions, judicial power to comment has been limited and in practice reduced, in the federal courts severely. The article reveals that this limitation developed with the advent of courts of appeal with separate personnel and especially of appeals in criminal cases.Lack of appeal, or limited appeal, has been a distinctive trait of common law systems, particularly in criminal cases. There was no appeal as of right in criminal cases until 1907 in England, and 1889 in the federal courts. In the federal system, the early movements to allow appeals in criminal cases and to limit judicial comment on evidence focused on controlling a particular judge: Isaac Parker, U.S. District Judge for the Western District of Arkansas, who presided over more than 100 trials for capital crimes occurring in the Indian Territory from 1875 to 1896

The Intersection of Two Systems: An American on Trial for an American Murder in the French Cour D\u27Assises

This study discusses a murder case in France\u27s trial court for the most serious crimes, the Cour d\u27assises. The case was highly unusual because the person on trial was an American, accused of having murdered other Americans in the United States. For reasons given below, cases in which crimes committed in the United States are tried abroad are likely to become more common. This study describes how such a case proceeds, including some of the difficulties that can arise from combining two investigations controlled by very different systems of procedure. An advice section is given for American prosecutors and defense advisers involved in such cases. More broadly, the study sheds light on the differences between the U.S. and continental legal systems, in part building on existing work in the area of comparative criminal procedure and drawing on French sources. The study emphasizes the effects of judicial control over trial on presentation of oral testimony, especially that of the defendant and experts. There are drawbacks to the French approach to oral testimony, such as less vigorous probing of testimony by the parties. There are also advantages, including allowing more information to be known to the fact-finders; permitting a more flexible order of presentation; and fostering dignitary values by letting witnesses speak in their natural voices and by achieving a deeper understanding of the defendant as a unique human being