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The Trial The Judge And The Jury Outline

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This is an extract of our The Trial The Judge And The Jury document, which we sell as part of our Civil Procedure Outlines collection written by the top tier of NYU School Of Law students.

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The Trial, the Judge, and the Jury Theme for this whole section is erosion of role of jury. We're the only Western country that even has juries. Europe would consider a jury trial a deprivation of the right to have a rational decision-maker. A. The Judge Background: Some judges are elected, some are appointed. 39 states have at least some elected judges. NY Court of Appeals judges appointed by Governor on recommendation from panel. Lower court justices elected. Caperton v Massey Coal: arguably shows why we shouldn't have elected judges. SCOTUS: Due process requires an objective inquiry into whether the contributor's influence on the election under all the circumstances would offer a possible temptation to the average judge to lead him not to hold the balance nice, clear and true. Significant and disproportionate nature of Blankenship's campaign contributions made the balance not nice, clear and true. B. Entitlement to a Jury i. 7th Amendment: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law. 7th Amendment does not restrict right to jury. It just preserves it for a minimum set of cases. Congress could still expand it by statute. Common law, as included in 7th Amendment, referred to English distinction b/w courts of law, which had juries and enforced judgment. Equity courts were more courts of justice or fairness, to which parties could turn if no remedy under the law. ii. Rule 38 If either party wants a jury, consistent with 7th Amendment, he can demand it as long as done within 14 days of last pleading. Can demand jury with respect to all or some issues. Right is waived if not properly made within 14 days of final pleading. Can be withdrawn only with consent of parties. iii. Rule 39 Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded. Court can also use an advisory jury for non-common law questions, or, with parties' consent, also use a binding jury. Two Step Test in Curtis v Loether Civil Rights Act provides for jury trial for various Titles, but doesn't say anything about Title VIII housing discrimination cases. First, look to see whether the statute provides for a jury trial. If not, ask whether this would this have been a law question or an equity question in England or in the U.S. at the time of the Constitution. If

law? jury, if equity?no jury. Remedy sought can also be instructive here. If damages?jury; if injunction?judge. If there's no similar right historically that would let you determine whether its law or equity, then you look at analogous situations, and see if there's an analogous situation in common law that would grant parties the right to jury. If the action in question belongs in the law category, then we still have to ask whether the particular trial question must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791, or, as in Markman, can the court decide part of it. Markman v Westview Instruments The interpretation of terms of art in patent cases is to be resolved by judges, not juries. The action has to be tried by a jury. But does that mean that every relevant issue is an issue of fact, as to the 7th Amendment guarantee? If the cause of action goes to the jury, can the judge break off pieces of it to handle himself? There will be two stages to the trial. First, the judge will construe the patent---what is the patent about? Judge takes this part away from the jury b/c of complexity. But jury will still decide in next stage whether the patent was breached. Policy: think about relative interpretive skills of judges vs juries. Fairness. Do we want jury of peers, or are they irrational? Does due process guarantee you a fair trial, and does jury prevent that? From efficiency standpoint, might be better for court to consider the case as a matter of law so it becomes precedent, as opposed to jury verdicts which would not have value for deciding future cases. C. Choosing a Jury Rule 47 The court or the parties may examine prospective jurors. Court can excuse a juror for good cause. Each party can have 3 peremptory challenges, as governed by federal law. Where parties are joined, up to court whether to give each side only 3 or add more for additional parties. Rule 48---jury must begin with 6-12 jurors. The verdict must be unanimous and must be returned by a jury of at least 6 members. The Pool: The universe (e.g., voter reg. rolls) from which the panel is drawn The Panel (venire, array): the group of potential jurors who show up in court on a given day for selection Voir Dire: Lawyers' opportunity to question, examine potential jurors. Thiele v. Southern Pacific Co. o Challenge was to the system of summoning jurors from the pool that allowed day laborers to be excused. o Systematic exclusion of day laborers because of hardships for lost wages is not allowed---they are a crucial part of the jury pool they are a substantial part of the community, eliminating them would undermine the democratic nature of the jury system. A complete demographic microcosm would be impossible, but prospective jurors shall be

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