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The Second Amendment vs. the Seventh Amendment: Accountability and Understanding of Gun Owners and Civil Jurors

Gun owners and users have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, civil jurors lack individual responsibility and often have trouble understanding their job.

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In yesterday's post, I laid out two fundamental differences between the Second and Seventh Amendments that I discuss in a piece in the Northwestern Law Review. In this post, I address the first difference: I compare the individual responsibility and understanding of responsibilities of gun owners and civil jurors.

Successful public policy depends on paying close attention to the accountability principle. Who is accountable, and how is that accountability enforced? Incentives matter. Gun owners and users have considerable incentives to behave responsibly; civil jurors have very few.

Incentives and knowledge of gun owners and users

Gun owners and users have direct, individual responsibility for their actions. They have an incentive to be careful because of concern for the safety of their families and friends. And if they do something foolish or malicious with a gun, they are individually liable—not just liable under civil law but also criminal law. They may be sued or prosecuted for what they do. Such individual liability has a way of focusing the mind.

This individual responsibility seems to influence behavior. Proponents of gun-carry bans predicted mayhem in the streets after Florida passed a permissive concealed-carry law in 1987.  But these dire predictions have not come to pass. Permissive concealed-carry laws appear to have had no adverse effect on public safety. In 1995, the New York Times admitted that "Florida's experience has generally provided strong arguments for proponents of the right-to-carry bills …. Even those who opposed the measure said it had not led to the increase in violence they had feared…. [H]andgun-related homicides in Florida dropped by 29 percent from 1987 to 1992 …." (Sam Howe Verhovek, States Seek to Let Citizens Carry Concealed Weapons, N.Y. Times, Mar. 6, 1995, at A1, A14.)

The most solid data available on crime rates for legal gun owners in the United States concern holders of concealed-carry licenses. States generally keep track of how many licenses are issued, and the crimes that holders of these licenses commit. John Lott has made calculations using such data; I have followed his general method, but have used different data. There may well be differences between the crime profiles of carry license holders and those of other legal gun owners. But for now, the best data we have concerns carry permit holders.

The data show that concealed-carry permit holders are remarkably law-abiding. And there are a lot of them. According to statistics through April 30, 2021, Florida alone had 2,363,898 valid concealed-carry license holders. For the period from July 1, 2019 to June 30, 2020, Florida revoked 1,546 concealed-carry permits. Using these numbers, which are close in time, this is an annual revocation rate of just under 0.068%—hundredths of a percent. Florida requires revocation of these licenses for all felony convictions and certain misdemeanor convictions, and there is an option to revoke in certain instances such as mental or physical incapacitation. To provide some comparison, in 2019 the rate of violent crime in Florida as a percentage of the population was 0.382%. As I explain in the Northwestern Law Review article (pp. 282-83), the crime rates of carry-permit holders are low in other states as well.  They may even be lower than that of police officers.

The data therefore suggest that legal gun owners and users are careful to obey the law. Furthermore, the legal responsibilities that gun owners and users have are relatively simple and readily understood by ordinary persons. It doesn't require an advanced degree to understand the notion of reckless endangerment, or the possible consequences of a toddler getting hold of a loaded gun. To be sure, certain requirements that governments impose can be precise, such as storing guns in a locked container unless they are equipped with certain safety devices. But again, these requirements are not difficult to understand.

This ability to understand, together with concern about consequences, affects not only crime rates, but accident rates. Gun accidents are extremely rare, except among a small, identifiable subset of the population. As Gary Kleck put it in his 1997 book Targeting Guns, p. 321, "Gun accidents are generally committed by unusually reckless people with records of heavy drinking, repeated involvement in automobile crashes, many traffic citations, and prior arrests for assault." Notwithstanding these reckless folks, accidental firearms deaths have been falling for the past four decades, including for children, and are today at an all-time low. (Nicholas J. Johnson, David B. Kopel, George A. Mocsary & Michael P. O'Shea, Firearms Law and the Second Amendment: Regulation, Rights, and Policy 18, 22-25 (2d ed. 2018).)

Civil jurors: collective decision-making and confusion

Contrast the individual responsibility of gun owners and users—and their ability to understand their responsibility—with that of civil jurors. Juries are designed precisely to avoid individual responsibility. English high court judge and criminologist James Fitzjames Stephen pointed out that the traditional number of jurors—twelve—is enough to preclude any notion of individual responsibility. The modern move to six jurors focuses responsibility somewhat more, but still leaves individual jurors with cover. The traditional requirement of unanimity further shields jurors from individual responsibility. Unless the parties agree otherwise, federal civil juries are still required to be unanimous. And jury deliberations occur in secret. Jurors do not give reasons for what they do.

Not only do jurors engage in purely collective, secret decision-making, they are entirely shielded from the consequences of a faulty decision. If a jury completely misunderstands the evidence, or the instructions on the law, or is improperly swayed by the emotional arguments of counsel, or flagrantly disregards the law or the evidence, there is no consequence to the jurors whatsoever. The judge congratulates the jurors on reaching a verdict and thanks them profusely for their service, regardless of whether they have botched the decision.

The consequences of civil jurors' lack of individual responsibility for their decisions are legion. One of the most salient has to do with giving away other peoples' money. Studies have consistently shown that the area of greatest disagreement between judges and jurors is damages. (See my Northwestern piece at p. 284, note 31.) Judges do have some individual responsibility for their decisions. Judges are named as the decision-makers, either alone or in a small group; must generally give reasons for their decisions; usually care about reversal by appellate courts; and often are concerned about their reputations among other judges and lawyers. Jurors lack almost all these characteristics. There is therefore some constraint on judges in awarding damages that there is not on jurors. Jurors are prone to the typical effects on most humans of spending others' money on someone else, with no accountability. The problem is well illustrated by the 2009 tweet of an Arkansas civil juror: "I just gave away TWELVE MILLION DOLLARS of somebody else's money!"

But even if a juror is soberly trying to do his or her level best, the task is daunting. Civil cases today are often complicated. Many studies have shown that jurors have trouble understanding the judge's instructions on the law, especially concerning damages. (See my Northwestern piece at p. 284, note 31.)

Jurors also can have difficulty understanding the facts. Much evidence today concerns complex transactions or advanced technology, and is in scientific or mathematical form. These topics and forms of evidence do not play to the strengths of ordinary jurors—particularly when one side has great incentive to remove anyone educated from the jury. And dueling partisan expert witnesses can add to juror confusion. Jurors are often baffled. As a result, litigators presenting a case to a jury go to great lengths to reduce the case to simple terms. In the process, the issues can be hopelessly distorted. For example, a litigant at trial in an intellectual property case might strongly emphasize a trade dress claim because that is easier for jurors to understand, and thus hope to win jurors' favor on a complicated patent infringement claim, which is really the most important issue in the case.

Unlike gun owners, civil jurors lack individual responsibility and have difficulty understanding the tasks that they are assigned. This lack of accountability and confusion were why civil juries were controversial at the time of the founding.

The next post dives into Alexander Hamilton's critique of the civil jury and concern about constitutionalizing such a right. This leads into the second major difference between the Second Amendment and the Seventh: the difference between substantive and procedural rights.

NEXT: Further Thoughts on the Ely Challenge

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  1. i entirely agree with the premise of this post regarding incentives and accountability. However judges are often political appointees and just as unaccountable. And since they often run in the same circles as prosecution and attorneys, incentives are skewed as well.

    1. Also: "As a result, litigators presenting a case to a jury go to great lengths to reduce the case to simple terms. In the process, the issues can be hopelessly distorted. For example, a litigant at trial in an intellectual property case might strongly emphasize a trade dress claim because that is easier for jurors to understand, and thus hope to win jurors' favor on a complicated patent infringement claim, which is really the most important issue in the case."

      This paragraph smacks of elitism. Forcing people to explain complicated details is a feature, not a bug. PhDs in my experience are often highly impressed with themselves and their own intellect. TYhose around them, not so much. Knowledge that cannot be explained or taught to the uneducated is completely worthless.

      1. Forcing lawyers to explain complicated details would be a feature - if that were what actually occurred. Re-read the article. Or go to an actual trial. In theory, the adversarial system is supposed to keep the incentives opposed so their negative consequences cancel out. In practice, both sides want a jury of mushrooms. Everyone in the system has an incentive to dumb things down and distort the issues. And that's the bug. It's not a feature.

        1. I did read the article... I just don't agree. Maybe you should have dumbed it down for me?

        2. n theory, the adversarial system is supposed to keep the incentives opposed so their negative consequences cancel out.

          Judges may be held accountable by elections, but that's weak tea. Judges have to really screw up for voters to remember it come election time, when the only alternative is some other political hack.
          And prosecutors? Give me a break. They are aiming for higher office and their only incentive is to splash their name all over the news as being tough on crime.

          Absolute immunity is a travesty. About the only thing they can ever be held accountable for is the proverbial dead girl or live boy in the trunk of their car.

  2. Lerner cites James Fitzjames Stephen against juries. Let's look at some other insights Stephen had.

    Stephen refused to condemn Pontius Pilate for killing Jesus. An example of Stephen's language:

    "To a man in Pilate's position the morals and social order which he represents are for all practical purposes final and absolute standards. If, in order to evade the obvious inference from this, it is said that Pilate ought to have respected the principle of religious liberty expounded by Mr. Mill, the answer is that if he had done so he would have run the risk of setting the whole province in a blaze."

    (Stephen, Liberty, Equality, Fraternity. New York: Holt and Williams, 1873, p. 94)

    And there was more to the same effect, comparing Jesus to a hypothetical Indian prophet who stirred up the masses and threatened British rule.

    Those who support juries should rejoice that a person like Stephen is against them.

    It is almost too perfect that Jesus *and* juries came into the crosshairs of Stephen's attack.

    1. You think he should have judged Jesus by today's standards? How was he supposed to know them?

      1. As I recall the story, Pilate actually thought that Jesus should be released, and said as much, judging him by the standards of the day, not today's standards. Thus the washing of the hands. He had him executed as a sop to the mob.

  3. This seems like an apple/oranges comparison.

    Yes, gun owners can be individually culpable while individual jurors are not.

    But that's by design so...why are we pointing this out? Why is this an issue?

    It's like comparing a Jumbo 747 with a tricycle.

    Sure they're modes of transportation but are really in two different ball parks.

    Sure, gun owners and jurors are people but they're doing two different things here.

    1. I guess the point is that incorporation is less problematic in the case of the 2nd amendment, because states are still perfectly entitled to punish any wrongful behavior with guns, even as before incorporation. It's only innocent acts incorporation of the 2nd amendment bars them from prohibiting.

      And in practice, the downside consequences of not infringing this right have proven to be imaginary. You can only cry "blood in the streets!" so many times before people stop listening.

      While the thesis is that incorporation of the 7th amendment is problematic because jurors misbehave, and can't be sanctioned for doing so, so juror misbehavior is common.

      But, really, this isn't an argument against incorporation, it's an argument against trial by jury. And, seriously, some of what lawyers think of as juror misbehavior is jurors doing what they're actually there for, (Applying community standards instead of mindlessly following the law is what jurors are for!) and other problems with the jury system are really a consequence of the legal guild's relentless determination to reduce jurors to the proverbial mushrooms: Kept in the dark and fed BS.

      So, lawyers create the problems, then use them as an excuse to shift more power to lawyers. Gosh, that's so unexpected!

      1. "some of what lawyers think of as juror misbehavior is jurors doing what they’re actually there for, (Applying community standards instead of mindlessly following the law is what jurors are for!)"

        this.

      2. There's a strong argument that the fact that America is awash in legal guns while not stressing the responsibilities of gun owners (like, for instance, Switzerland does with its compulsory service requirements) creates a situation where there are a ton of stolen guns, guns sold outside the lawful system of firearms dealers, etc. And that certainly does contribute to the crime rate.

        We just had a terrible Gabby Giffords like situation where a British MP was stabbed by a terrorist. In the US, of course, that same crime would have been committed with a gun (and has been a couple of times), because it's easier to purchase a gun illegally here. And that's because of our super-libertarian gun culture.

        1. With stronger gun laws, you think that crooks would have a hard time getting guns, like they have a hard time getting drugs? 🙂

          I don't know If I agree. Mexico has very stringent gun laws - supposedly there is exactly one legal gun store in the entire country - but still seems to have a lot of crime involving guns.

          1. They have a harder time getting guns in developed countries with stricter gun laws. That is an actual fact, and you see that in stabbing rates vs. shooting rates in those countries.

            Mexico has ineffective law enforcement so it isn't a great comparison.

            But the central point here is that I'm not even sure it's the "gun restrictions" themselves that are the issue- it's harder to get a gun illegally in Switzerland too, and Switzerland has lots of legal guns. It's our super-libertarian gun culture, this idea that owning a gun imposes no obligations whatsoever towards the rest of society, that is central here.

            1. As a gun owner, I exhaust my obligations to the rest of society by refraining from wrongfully shooting anyone. In much the same way printing press owners exhaust their responsibility to the rest of society by not publishing libels.

              1. No you don't. First of all, under the militia clauses of the Constitution, Congress can call on you to defend the nation. But that's obviously technical more than it is legal.

                But the big obligation that you have is to prevent the theft of your weapons. To store them safely and ensure that they do not fall into the wrong hands. To treat them as the dangerous tool that they are, and not a phallic symbol. To not bring them where they are not needed.

                1. Selective service.

                  But the big obligation that you have is to prevent the theft of your weapons. To store them safely and ensure that they do not fall into the wrong hands. To treat them as the dangerous tool that they are, and not a phallic symbol. To not bring them where they are not needed.

                  why would there be a duty to others to prevent the theft of your own weapons?

                  How about just teaching men people not to rape steal?

                  1. Why is is always the needy, insecure gun grabbers that have to go to the phallic imagery top dead center in these discussions? Never got past Freud? Some serious projection I'm guessing?

                    If it is indeed Phallic imagery, many of us are running scared with a 3.15 to 5 inch semi auto barrel, or those poor revolver people with a 1 7/8 or 2 inch barrel. Not to mention the fastest growing segment of gun ownership, women suffering from something or other.

                2. That is very much locational. When we are in rural MT, few people lock their vehicles, most trucks have at least a truck gun, and locking them up would be counterproductive. When you need it, you need it. And while guns are stolen, it is more likely from homes, and isn’t that common (though it happens - I take a shooting class every year with the local Justice of the Peace (who does felony arraignments and misdemeanor trials), and he is always on me to lock my truck). He is very good as an instructor). But the other half the year, we spend in Phoenix, where I do lock the truck. But if you have a gun in your vehicle, you really, really, don’t want it locked up when you are driving around town.

                  Where are they not needed? I frankly can’t think of anywhere, except maybe in a courthouse or TSA secure zone in an airport. The key to both is armed protection. When you go through the metal detectors at the courthouse, the deputies running them are armed, and everyone on the inside is either a LEO or unarmed. (Ok - at our courthouse in MT, with the JP being the local firearms instructor, much of the courthouse staff is armed, but the Sheriff next door knows who they are, having approved their CCW permit, and seeing them every day). But absent armed security and metal detectors, I can’t think of many places where you are better off unarmed.

                  Finally, my view is that your primary obligation as a gun owner is keeping your family, friends, and yourself alive and unharmed.

                3. "But the big obligation that you have is to prevent the theft of your weapons."

                  Nope. What other piece of property are you obligated to specially safeguard against theft, and will be judged guilty if somebody steals them?

                  If somebody steals your property and uses it for unlawful ends, it's all on them.

                  1. "If somebody steals your property and uses it for unlawful ends, it’s all on them."

                    I dunno, Brett. I have heard cops who say a substantial part of the local stolen guns are taken from gloveboxes etc. And not because people left one there while going into some no-guns area, but because people put one in the glove box and left it with the car parked on the street all night. I'm kind of leery of safe storage laws, but in general I think if you can afford a gun in the first place you can afford a $99 lock box, and it doesn't cost anything to bring the gun in for the night.

                    (my humble gun safety suggestion: make rentals/apartments include something like this $99 lockbox, just like they require fire alarms. People who don't have guns can use it for their laptop or drugs or whatever 🙂 )

                    1. I'm not saying you shouldn't properly store firearms, and indeed mine are in a locked gun safe.

                      I'm saying you shouldn't be legally obligated to do so, and held responsible if somebody steals them. There are many things you ought to do, but shouldn't be forced to do.

                      What other property is treated that way? This is just another attempt to make ownership of guns legally perilous and inconvenient.

                    2. I’m saying you shouldn’t be legally obligated to do so, and held responsible if somebody steals them. There are many things you ought to do, but shouldn’t be forced to do.

                      What other property is treated that way?

                      All other property that poses dangers, Brett. If you leave your backyard swimming pool unfenced and a neighborhood kid drowns in it, you're going to be liable.

                4. Good grief, militia obligations exist completely independent of whether a person currently owns a firearm or not.

              2. Brett, by that logic you would be meeting your obligations if you left your weapon in a playground.

              3. Uh doesn't your definition of "wrongfully" exclude shooting people who touch your stuff?

                1. For the most part, mere theft is not sufficient cause for shooting someone. Then, there is TX… That, of course is situational - usually shooting to protect a gun is more justifiable than for a truck. But if you are starving, then maybe you can justify doing so to protect your food supply.

                  Keep this in mind (something that you learn to get a CCW license), that you need to be in reasonable imminent fear of loss of life or great bodily injury (of/to someone) in order to shoot someone. Or really, to shoot at, or anywhere close, to someone. And, if you point a gun at someone, and you aren’t fully legally justified in doing so, expect to be shot yourself in justified self defense.

                  1. I know that. Brett is very forceful in his view that lethal force is justified in response to the most minimal threats to property.

                    1. The Brett in your head is, maybe.

                    2. No. The one where I can find multiple examples of you defending such a notion:

                      "Setting aside that people die in fires, I have no problem with advocating killing in defense of property. See my remark below: When you destroy property, you render valueless the time people put into earning it. Often an expensive building can represent multiple lifetimes of effort.

                      Destroying property IS destroying life, second hand."

                      "Let me channel my inner Randian: Property is crystallized life. It’s the tangible representation of the hours and days of your life you spent earning that property. He who destroys property destroys the hours and days of people’s lives, time they will never get back. I’m fine with shooting them."

                      https://reason.com/volokh/2020/05/29/of-course-when-the-looting-start-the-shooting-starts/#comments

                    3. It's the "most minimal" part I'm taking exception to.

                    4. LTG, is there any crime to property that you think could be met with lethal force?

                    5. Yeah. Well how flexible is your definition of destroy and minimal?

                    6. Yeah, look at that context: They weren't stealing a pack of gum, they were destroying people's life long investments. Including arson of occupied buildings.

                      "Often an expensive building can represent multiple lifetimes of effort."

                      I recognize a demand for proportionality here. I simply refuse to leave off the scale the years of life people spent to come by that property.

            2. There is an old adage: "every complex problem has a solution that is simple, obvious, and wrong".

              I don't think the notion that gun laws/availability are correlated with murder rates holds up.

        2. Ummm... The unfortunate MP is still dead; dead-dead in fact. What on earth is meaningful about the claim that he could have been killed with a different weapon?

  4. Phew weak lineup recently here at Volokh

  5. "Furthermore, the legal responsibilities that gun owners and users have are relatively simple and readily understood by ordinary persons."

    Bullshit! The anti-gun faction has made "gun laws" so convoluted that many of those permit holders never carry. When you need annual training that consists mostly of having the changes in the Laws explained to you, that isn't "simple and readily understood".

    Ok. How about Juries? It ties into my previous statement. The media has pushed the anti-gun agenda heavily. Look at some of the things the media stated about Florida's "Stand Your Ground" law. Total lies and misstatements. So you follow all of the laws and God forbid you have to use your weapon. If you are in an area with an anti-gun Prosecutor, you are going to trial. Several years ago our County had a DA who made a public statement that in her opinion there is no such thing as self-defense. She stated that if you shoot somebody, for whatever reason, you are going to jail.

    So you shot someone in self-defense and the Prosecutor is taking you to Trial. You have done everything correctly under the law. Now it is up to the Judge to explain the self-defense laws to the Jury and for the Jury to understand. Otherwise you are toast.
    Just ask Kyle Rittenhouse. I'm not saying that he's totally innocent. In my opinion he had no business being there and his possession of the weapon is sketchy, but, the shootings were textbook self-defense.

    1. I think he means "legal responsibilities in the context of the 2nd amendment not being infringed"; Not that the flaming hoops they make you jump through can't be complex, but that avoiding any genuine harms is easy enough.

      1. Back in the early days of the petit jury in Norman England, juries that found the “wrong” result were punished. The whole point of them being created was to implicate local land owners and notables in royal decisions in a day when the Normans were ruling an alien population. Only later did they evolve into something recognizable as royal power declined.

        I believe Leonard Levy talked about this if you need a citation.

  6. What you call juries being irresponsible, others call a great principle of Anglo-American liberty, obtained with much struggle and sacrifice and to be defended against the world's Lerners.

    William Penn and a colleague were charged with holding an illegal religious meeting (they were Quakers, a minority being persecuted by the Anglican establishment). The jury acquitted, and the judge held them "responsible" by fining them. One of the jurors wouldn't pay the fine, went to prison, and was released on habeas corpus in a great landmark decision. Since then, and thank God for it, juries in the Anglo-American world can't be punished for a "wrong" verdict.

    If you want a world where juries are punished for defending the freedom of their fellow-citizens, by all means do as Lerner suggests.

    https://en.wikipedia.org/wiki/Bushel%27s_Case

    1. The romanticization of jury nullification is one of the worst positions, in terms of theory, that any large number of people take in the political world.

      Most of the time, jury nullification means you get the brute preferences of the majority in a particular community, whether that's Jim Crow juries refusing to convict whites for terrorizing Blacks, or the OJ jury letting off a double murderer.

      And that's what you would expect, if you think about it for ten seconds. After all, have mobs hanging outside the courthouse generally been proven to be more likely to be right than an impartial, properly instructed, carefully screened and impartial juror?

      The reality is there was never, ever, a right to nullify under American law, and there never will be. It is true that jurors can disobey their oaths and try to nullify, and the only punishment will generally be that they may get kicked off the jury if they are found out. But there is zero doubt that they are violating the law (in the form of jury instructions and oaths), and every reason to get nullifiers off of juries.

      1. Also, as Scott Greenfield suggests, jury nullification proponents seem to have this weird idea that it is a one way ratchet in defense of liberty. But in reality telling jurors they can ignore the law means they might just nullify BARB to convict someone who doesn’t deserve it.

        1. Right. I assume the nullifiers assume that such convictions will be reversed, but in addition to the fact that unjust verdicts can be insulated by legal standards of review, there's a real irony in people arguing for unchecked juries depending on the assumption that JUDGES won't engage in nullification.

      2. Except that OJ’s Dream Team was significantly better than the prosecution team. The story I heard shortly after the trial, from a good friend of the LA DA at the time, was when the delegation of Black Clergy showed up and told him that if OJ were convicted by an entirely White jury, LA would burn, he moved the trial downtown, and put second string prosecutors on the case, as a Hail Mary, figuring that his only chance at winning it was having a Black and a woman as the prosecutors.

        There always was reasonable doubt. My problem was from taking Crim Law in LS. Our prof was a prominent criminal atty, who had tried a number of Capital cases. He said that, in his experience, there were essentially two types of murder: Premeditated and out of passion (etc). The bloody murders were the ones out of passion, while many premeditated murders were almost bloodless. Well, which was it here? There was blood all over the place. But if OJ had done it, it required very tight timing, to get changed, get rid of the bloody clothes, shower off the blood, etc, then make his flight to Chicago. It didn’t help matters that the four detectives who went over to OJ’s house, then over the wall, without a warrant, were probably operating outside the law, so when they found incriminating evidence there, why should anyone believe that they hadn’t dropped it there themselves? It didn’t help matters that the detective who (probably illegally) went over the wall, was disclosed to be a racist, who could possibly have lied about finding the evidence at OJ’s for racial reasons.

        So, yes, I think that there was more than reasonable doubt. The racial angle, in my mind probably mostly revolved around whether or not the detectives were testifying honestly or not. There is a stark Black/White divide here, but my experiences with cops is that do, on occasion lie on the stand, esp when they think that they can get away with it. And inner city Blacks probably see this more than the middle class Whites in Brentwood. As someone pointed out, they are, after all, professional witnesses, spending more time in court testifying than probably any other demographic, I have seen it myself, including several times when, in my misspent youth, I was a defendant.

        On the flip side, the legal standard in the civil trial against OJ was by a preponderance of the evidence. The plaintiffs there also had much better lawyers than did the prosecution. I can easily believe that both the civil and the criminal verdicts were viable. Call it guilty by a preponderance of the evidence, but not beyond a reasonable doubt.

      3. The reality is there was never, ever, a right to nullify under American law,

        No, that's not true. Juries having the right to judge the law as well as the facts was actually a thing.

        1. Still is, I think, in Maryland and...

          1. .../Indiana:

            "In Maryland and Indiana, however, juries
            retain constitutional authority to act as judges of law as well as of fact."

            That article goes on: "This Article will examine this once common but now nearly extinct practice,...".

        2. It uniformly was a thing at the time the right to trial by jury was established in the Constitution. The right to trial by jury WAS a right to a trial by a jury that could nullify.

          Prohibiting nullification denies the right as it was adopted, IMO. Just as prohibiting write in votes is a denial of the right to vote, as it was adopted; It was a right to vote for whoever you damned well pleased, not whoever the government felt like letting you vote for.

          Many of our rights have been transformed into sad shadows of what was guaranteed, along the road to abolishing the altogether.

      4. Me: Judges shouldn't fine and imprison jurors for giving verdicts the judge considers wrong.

        You: "jury nullification...brute preferences...Jim Crow juries...mobs hanging outside the courthouse..."

        So in order to avoid all those things, I guess you're okay with judges punishing jurors for "wrong" verdicts?

        1. If you have the law, hammer the law. If you have the facts, hammer the facts. If you have neither the law nor the facts, hammer the table.

          Since you're using the pound-the-table technique of rhetoric, I presume both the facts and the law are against you.

          1. There must be some bug in the commenting software, because it didn't publish your rebuttal to my comments.

  7. You seem to be addressing this question as if service on a jury were a right of the person serving, and questioning whether it out to be protected. That's not the point of the right.

  8. "Jurors also can have difficulty understanding the facts."

    Over half of the public is not sufficiently intelligent to do proper college work (as opposed to the remedial and make-work courses commonly offered). A large proportion of drug prescriptions are not taken properly - and many are taken in a way that actually do harm - because people are not competent to read and understand the instructions on the bottle (take after eating, don't take with alcohol, etc.) Upon leaving school, a significant proportion of the public never picks up a book again in their lives. Because reading is hard.

    1. The data belie your contention = Over half of the public is not sufficiently intelligent to do proper college work (as opposed to the remedial and make-work courses commonly offered).

      Roughly 2/3rds of high school graduate now go on to college. This is not a problem of brainpower, it is a problem of financing (meaning, I think we should put colleges on the hook for 'lost' financial aid - they will be incented to make sure students graduate with the degree).

      1. "Going on to college" and finishing it are not the same thing.

        1. Totally agree....which is why I want colleges who disburse federal aid to have a LOT of skin in the game.

  9. Are judges any better on technical matters than jurors? People go into law because it's the only part of the trinity of engineer/doctor/lawyer that doesn't require understanding math or science. And as this blog has shown, judges have known biases to the point that you can predict their rulings before arguements even start. Juries by comparison are forced towards greater impartiality by there being twelve of them, which allows for greater odds of contradicting biases.

    Juries aren't perfect, but having the option of one is much friendlier to a just system than forcing everyone to have their fates decided by political appointees (see the miscarriage of justice going on with many capitol protestors because they aren't allowed to have a jury trial).

    1. They aren't allowed a jury trial?

      1. Well, they're typically not being charged with anything that the Supreme court admits entitles you to one. Mostly misdemeanors, and a lot of them are getting released on time served without any sort of trial to speak of, on account of already having been held longer than the maximum sentence for the charges. Others are eventually seeing the charges dropped.

        A few are scheduled for jury trials, some time next year. About a baker's dozen, out of all of them.

        1. I expect most of those trials to be kind of interesting, given the government's gross failure to disclose evidence to the defense so far.

        2. And let's not even mention that pesky word "speedy".

    2. Judges are not better at technical matters and some are barely competent in the law.

  10. Gun owners and users have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, civil jurors lack individual responsibility and often have trouble understanding their job.

    Sure. Except for feckless gun owners. And insurrectionist gun owners. And drunk gun owners. And psychotic gun owners.

    Not to mention defiant gun owners—like all the ones who comment on this blog that if new gun control laws pass, they will not obey. And the gun owners who threaten to shoot would-be law enforcers. And the law enforcers who refuse outright to enforce gun laws. All those responsible people.

    We get all that chaos before we need even mention criminally inclined gun owners. Because, as we hear constantly, all those others previously mentioned are, "law abiding gun owners."

    Forget the rationalism expressed by gun suicides. Just don't even mention it.

    Absent new laws, I expect open gun carrying—for the purpose of political intimidation—to become a routine feature of American governance. One question for responsible thinkers will be whether peaceable assembly requires no guns, or just no gun shots.

    Renee Lerner seems not to have thought this one through. If policy is to arm everyone without distinction, then the people armed will include examples of every kind of incomprehension and irresponsibility humans are capable of. And not just a few examples, but more or less all of them.

    The challenge is not to figure out some way to falsify a truism; the challenge is to explain why that state of affairs is an acceptable result. Pray tell us that, Lerner.

    1. "Not to mention defiant gun owners—like all the ones who comment on this blog that if new gun control laws pass, they will not obey. And the gun owners who threaten to shoot would-be law enforcers. And the law enforcers who refuse outright to enforce gun laws. All those responsible people. "

      Yup, those do sound like responsible people to me. You don't have to volunteer to be a serf to be responsible.

    2. lathrop, I don't think Professor Lerner is the one plagued with a failure to think this issue through.

    3. "Sure. Except for feckless gun owners. And insurrectionist gun owners. And drunk gun owners. And psychotic gun owners.

      Not to mention defiant gun owners—like all the ones who comment on this blog that if new gun control laws pass, they will not obey. And the gun owners who threaten to shoot would-be law enforcers."

      Gee. Who gets to determine who these people are? "Shall not be infringed", that kind of makes a case for any gun laws to be unconstitutional.
      I have no problem with certain people having their Right to own guns taken away, but, who determines who these people are? The Virginia Tech shooter should have never been able to purchase his weapons, but, because the College DIDN'T report his mental state, as required by law, it didn't show up on his background check. There are mental health professionals who believe that your wanting to own a gun is a SIGN of mental illness.
      As I mentioned in another post here, the anti-gun crowd that you apparently belong to will do anything to get their way. That's the biggest problem we have now. Anybody who thinks otherwise just has to look at Chicago. "Mutual combat" in an area with some of the strictest gun laws in the country.

      1. jimc5499: Gee. Who gets to determine who these people are?

        The point is not to determine who they are. The point is that they are there, whether or not anyone knows who they are. It isn't a point about how you do gun control. It's a point about how people argue against gun control—and all the stuff they have to pretend to ignore to get where they want to go.

        1. They are there.... in such great numbers that they don't show up in a statistics at all.

          How about some actual evidence, instead of just fantasies from your nightmares?

  11. I would suggest that part of the problem with juries is that many have no idea about their responsibilities as jurors. I have never served on a jury but have be called to serve. With that call came no instructions. The court system might be well served to require jurors at attend an hour or two of instruction before jury selection. This could very easily be done on-line, be fore reporting. Prospective jurors would view instruction and answer a few key question to establish they understood the instructions. Jurors have a right to be paid for this time. The judge might issue specific case instruction before a trial starts but basic information will have been given.

    1. idk what it means "With that call came no instructions. " You show up at the instructed time, they call you into a room and ask questions, then (maybe) you go up to the bench to explain your answers ("Yes I was in a car accident..." whatever the judge/attorneys ask as further questions). Propsective jurors do "answer a few key question to establish they understood the instructions" during voir dire.

      Maybe you simply did not get that far. Often they call hundreds, but trials are settled at the last minute so they dont need ppl and send them home.

  12. I still don’t see how these complexity issues can’t be directed at criminal juries too. Yeah patent cases are complicated but so is a multi-defendant white collar criminal case with lots of numbers or even a murder where identity is in question and there is lots of scientific (or pseudoscientific!) evidence involved.

  13. " giving away other peoples' money."

    This is begging the question - determining whose money it is is kind of the point of having the trial, no? Regardless, if the judge, being (supposedly) more accountable and sober-minded really thinks a verdict is excessive, he can always grant a motion for remittitur. But the fact that juries often take money from scumbags and give it to people who aren't is a feature, not a bug, of the civil justice system.

  14. I am very skeptical of the idea that a former president can assert executive priveledge. Executive privelege is a privelege of the public office, not an individual.

    Just as a former corporate executive can no longer assert the corporation’s rights once no longer in cororate office, former federal executive cn no longer assert the executive branch of the federal government’s rights once no longer in federal office. They aren’t his rights personally. Government offices and their priveleges aren’t people’s personal property.

    1. Wrong post! Don’t know how this got here

      1. It's also wrong in content. It is well established that a former POTUS can assert executive privilege. The question is the things for which he can assert it.

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