BLS Library Blog

Today’s Wall Street Journal Law Blog has a post by Peter Lattman about the disappearing jury trial in the US justice system.

That’s the epigraph of an essay in the American Interest by Neal Ellis, a lawyer at Hunton & Williams in Raleigh. Ellis thinks our legal culture has come to view trying cases as a failure of the judicial system rather than as its cornerstone. Here’s the evidence: Fewer than 2% of civil cases went to trial in 2002, down from 11% 40 years earlier.

While he praises alternative dispute resolution like mediation, he raises concerns over several reasons why jury trials are dwindling. Among them: Rising litigation costs deter potential plaintiffs and encourage the settlement of even negligible claims. Also: The growing fear — which Ellis says is unfounded — that jurors are too unsophisticated and too easily swayed by emotion to render fair verdicts in increasingly complex cases.

Among his suggestions for filling up more jury boxes: capping lawyers’ fees on cases and restricting lawyers’ ability to question potential jurors, which in his view would deepen the jury pool. Without reform, he warns, Americans’ confidence in the judicial system, including the Constitution’s right to a trial by jury, will be dangerously undermined.

Source WLJ Law Blog December 20, 2007

Commentators have characterized this week’s decisions by the US Supreme Court (Kimbrough v. US and Gall v. US) dealing with sentencing guidelines as victories for criminal defendants. See the December 10 entry in the Volokh Conspiracy. At first blush, Kimbrough and Gall appear to be victories for opponents of the Sentencing Guidelines. In Kimbrough, the Court addressed the disparity in the sentencing guidelines related to convictions for possession of crack cocaine and powder cocaine and affirmed that district court judges are free to impose sentences lower than the guidelines. In Gall, the Court held that a district court sentence of a defendant to a below-guidelines sentence should be reviewed only under a deferential abuse of discretion standard.

A case pending in the Eastern District of New York demonstrates that the grant of greater discretion to district court judges in the use of sentencing guidelines may also result in above-guideline sentencing. The December 13th edition of the New York Sun reports on a gun trafficking case in Brooklyn where Judge Charles Sifton of U.S. District Court sought to impose on a defendant a longer sentence than that sought by the prosecutors. The 2nd U.S. Circuit Court of Appeals overruled Judge Sifton on the theory that the stricter sentence would create widespread disparities across the country for how people are sentenced for violating the same federal law. Judge Sifton has reasoned that judges should be permitted to impose longer sentences for gun crimes in New York based on the large population of the community where the unregistered gun was transported. See 5 Fed Sent’g Rep. 303 (May/June, 1993). The Sun article states “Criminal defense lawyers and prosecutors are watching to see if the Supreme Court’s case emboldens Judge Sifton to try again to get the longer sentence to stick.”

The Brooklyn Journal of Corporate, Financial & Commercial Law has just published its latest issue, Volume 2 Fall 2007 Number 1.

TABLE OF CONTENTS

ARTICLES
Prima Paint Pushed Compulsory Arbitration Under the Erie Train
Richard L. Barnes

Against Shareholder Participation: A Treatment For McConvill’s Psychonomicosis
Harry G. Hutchison & R. Sean Alley

Attorneys’ Fees Incurred In Defending Insurance Policy Non-Covered Claims: Who Pays?
Joseph F. Cunningham with James N. Markels

The Case for Mandatory Disclosure In Securities Regulation Around the World
Allen Ferrell

A European Solution to the Regulation of Cross-Border Markets
Eric J. Pan

NOTES
To Sue or Not to Sue: Video-Sharing Web Sites, Copyright Infringement, and the Inevitability of Corporate Control
Andrea Frey

Merkels & Acquisitions or Locusts and Labor Law: What’s Really “Plaguing” Cross-Border M&A in Germany?
Margaret L. Hanson

Hedge Fund Regulation: A Proposal to Maintain Hedge Funds’ Effectiveness Without SEC Regulation
Carl J. Nelson

The Need for a Long-Term Federal Backstop In the Terrorism Insurance Market
Laura M. Reiter