Was the Jury Ever Self-Informing? – Article by Daniel Klerman

From Volume 77, Number 1 (November 2003)
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For nearly two centuries, legal historians have believed that the medieval English jury differed fundamentally from the modern jury. Its members hailed from the immediate vicinity of the dispute and came to trial already informed about the facts. Jurors based their verdicts on information they actively gathered in anticipation of trial or which they learned by living in small, tight-knit communities where rumor, gossip, and local courts kept everyone informed about their neighbors’ affairs. Interested parties might also approach jurors out of court to relate their side of the case. Witness testimony in court was thus unnecessary. The jurors themselves were considered the witnesses – not necessarily eyewitnesses, but witnesses in the sense that they reported facts to the judges. They were self-informing; they “came to court more to speak than to listen.”

The idea of the self-informing jury has provided a powerful explanation for many legal developments. James Bradley Thayer and John Henry Wigmore used it to explain the late development of rules regulating oral evidence at trial. No such rules were necessary in the Middle Ages because witness testimony was rare. For John Langbein, the decline of the self-informing jury in the fifteenth and sixteenth centuries explained the increasing role of justices of the peace in the prosecution of crime. In medieval times, there was no need for the government to marshal evidence against suspected criminals because the jury knew or collected that information on its own. As early modern jurors became more ignorant of the facts, the government turned to justices of the peace to assemble the prosecution case. More recently, Thomas Andrew Green explained the medieval jury’s extensive discretion and power to nullify the law as a consequence of its self-informing character. Because little evidence was presented in court, judges knew almost nothing about the facts of cases and so could not prevent jurors from deciding cases according to their own notions of culpability.

 

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Consent by all the Governed: Reenfranchising Noncitizens as Partners in America’s Democracy – Note by Gabriela Evia

From Volume 77, Number 1 (November 2003)
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The United States has been the pioneer of democratic values on the stage of world history for over two hundred years. The foundation of a democracy is the right of the governed to elect their political leaders. As President Lyndon B. Johnson told Congress in 1965, Americans have “‘fought and died for two centuries’” to defend the principle of “‘government by consent of the governed.’”

Despite these democratic values, one particular group in our country is governed but has lost the right to vote – noncitizen legal permanent residents (“LPRs”). Noncitizen LPRs are legal immigrants. They are foreign-born individuals who have been granted legal permanent resident status by the U.S. government. This status allows them to live and work in the country indefinitely. Noncitizen LPRs pay taxes at the local, state, and federal levels, they can serve in the military and are eligible for the draft, and they are subject to all the laws of the United States. Although they have all the political, social, and military obligations of citizens, noncitizen LPRs are no longer allowed to vote in any state due to the recent amendments of state constitutions, which have disenfranchised noncitizens and limited the franchise to U.S. citizens. Prior to this disenfranchisement, noncitizens legally voted in local, state, and national elections for over one hundred years.

 

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Attacks on a Tax: An Alternative to the Earned Income Tax Credit to Remedy the Unfairness in the Payroll Tax System – Note by Dan Seltzer

From Volume 77, Number 1 (November 2003)
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The United States raises revenue through a variety of taxes that are fragmented or “disaggregated” into multiple components. Although most Americans think of taxes primarily in terms of the income tax, its lesser known cousin, the payroll tax, produces nearly identical revenues while falling disproportionately on the poor and middle-class. Disaggregating the tax system into several component taxes thus conceals the true aggregate tax burden on taxpayers. This misleading effect is exaggerated because the media and politicians focus on the income tax while ignoring the equally significant payroll tax.

In recent years, taxes have played a central role in most major political campaigns. President George W. Bush centered his campaign on tax issues, and passage of his 2001 tax relief package, the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”), was one of the first major accomplishments of his administration. Yet, despite this pronounced emphasis on reducing taxes, the media and politicians from both parties appear oblivious to the payroll tax, even though it represents the single largest tax for two-thirds of all Americans. Indeed, even as President Bush made tax cuts for the working poor a priority for his administration, these cuts generally affected only income taxes. His 2001 budget included extensive discussion on the income tax, but the sole mention of the payroll tax appeared in a footnote.

 

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Volume 76, Number 6 (September 2003)

Volume 76, Number 6 (September 2003)

Copyright Law and Free Speech After Eldred v. Ashcroft – Article by Michael D. Birnhack

From Volume 76, Number 6 (September 2003)
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Eldred v. Ashcroft, as decided by the Supreme Court in January 2003, added another chapter regarding the relationship between copyright law and freedom of speech to the judicial “chain novel” that has been in the writing for the past three decades. The Court affirmed the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (“CTEA”), which extended the copyright term by twenty years, both for existing works and for new works. As in previous chapters, the Court reached the conclusion that there is no conflict between the two legal fields. It repeated the judicial sound bite that “the Framers intended copyright itself to be the engine of free expression.” Eldred nicely fits the conflict discourse, which is mostly one of denial. But Eldred also included novel and interesting elements that offer a new direction to the conflict discourse, or at least a potential for redirection.

Eldred raises many intriguing copyright law and constitutional law questions. Here, however, I wish to focus on the possible ramifications the case might have on the conflict discourse with respect to its constitutional level. Surprisingly, Eldred is the first facial constitutional challenge to copyright law in 213 years. As copyright law continues to expand into new territories and in unpredictable ways, and as new bills are introduced at a staggering rate to further the scope of the rights of copyright owners, it is crucial that we study the contours of copyright law. This need is especially acute in light of the Court’s comment that “[w]hen, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”

In this Article, I wish to challenge the constitutional dimension of the judicial rejection of the conflict argument, which concerns the conflict between copyright law and the First Amendment. I will structure the critique along the lines of an important distinction. When we pause and ask what it is that the courts have been denying in rejecting the conflict argument, we see, after close study of over thirty cases that addressed the conflict argument, that, surprisingly, courts reject different things at different points. This leads us to identify two kinds of conflict: one is internal to copyright law, and the other is external to it. These two conflicts derive, respectively, from an internal view of the relationship of copyright law and free speech, and also from an external view.

 

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Detentions, Military Commissions, Terrorism, and Domestic Case Precedent – Article by Carl Tobias

From Volume 76, Number 6 (September 2003)
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Laura Dickinson’s recent article in this journal substantially improves appreciation of how the United States has detained suspects and instituted military commissions as well as of the roles played by the controversial procedure and tribunals when fighting terrorism. She meticulously traces how detentions and the commissions evolved, trenchantly criticizes them, and persuasively shows international tribunals’ comparative advantage. Dickinson accords relevant domestic case precedent a somewhat laconic analysis, however. For example, she briefly mentions separation-of-powers concerns and Supreme Court opinions that detentions and military commissions implicate while rather tersely assessing Ex parte Quirin, the Second World War decision on which President George W. Bush’s Administration has heavily relied to detain suspects, to create the tribunals, and to support numerous antiterrorism initiatives, especially litigation. Dickinson suggests that closer evaluation of these critical rulings is unwarranted because they lack application for her work and others have explored the opinions. Dickinson’s treatment allows many observers, most prominently cabinet members and federal judges, to overstate Quirin and to ignore Youngstown Sheet & Tube Co. v. Sawyer.

Dickinson contributes substantially to the ongoing debate over the use of detentions and military commissions in national emergencies. She illuminates myriad complex phenomena and convincingly demonstrates how international tribunals are preferable. Her recommendation may prove superior in terms of theory, policy, and international law. Nonetheless, the very realpolitik that Dickinson so incisively criticizes, and is so clearly exemplified by the Bush Administration’s war on terrorism, mandates elaboration of the governing United States case law.

 

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Through the Looking Glass: Racial Jokes, Social Context, and the Reasonable Person in Hostile Work Environment Analysis – Note by Melissa K. Hughes

From Volume 76, Number 6 (September 2003)
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Communicating ethnic animosity through humor has long been an American tradition. As early as the seventeenth century, Americans have utilized racial jokes to ridicule the culture, dialect, dress, and traditions of each new wave of immigrants. Images of “little black Sambo,” “the drunken Irishman,” and “the stupid Pole” have helped to define which ethnic groups are accepted and which remain on the fringe of society. Although racial jokes convey a wide variety of messages ranging from friendly teasing to flagrant racism, when channeling racism and hostility they comprise one of the greatest weapons in the “repertory of the human mind.” Furthermore, while many dismiss jokes as a nonserious form of communication, racial jokes historically have played an important role in the development of American race relations.

In the decades following the civil rights movement, minority groups successfully applied political and social pressure to persuade Americans to oust racial jokes from the public sphere. Joseph Boskin, a leading scholar on ethnic humor, contends that despite the invention of politically sensitive speech, the popularity of racial jokes in the closing decades of the twentieth century skyrocketed nationwide. Ida L. Castro, the Chairwoman of the Equal Employment Opportunity Commission (“EEOC”) stated, “[t]he Commission is seeing a disturbing national trend of increased racial harassment and retaliation at workplaces across the country. This harassment at work sites includes egregious behavior which is reminiscent of the days of the civil rights movement.” This simultaneous resurgence of racial jokes and harassment reveals that discrimination remains a pressing social and legal issue.

 

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Cognitive Jurisprudence – Article by Adam J. Hirsch

From Volume 76, Number 6 (September 2003)
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Our law has no mind of its own. In times past, we have fancied law a product of the Deity, and we are still apt to depict it as something transcendent, or even broodingly omnipresent, if not divine. Some of our lawmakers maintain a tradition of donning garments befitting oracles when they utter their pronouncements.

 

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