Was it a race? I should think that there would be plenty to do by way of revision, requiring effort, showing commitment, resulting in improvement.

The excerpts from Courts on Trial have two implications for law students. First, we must recognize that law school is premised on the myth of fact-finding. We do not study any factors that led a trial judge, much less a jury, to decide one way or the other on a given issue. We largely assume that the original court was correct and move on to an abstract consideration of the law. This may be terrible practical training for practice. Even if we accept the unspoken assumption that many of us will not practice in trial courts after graduation, we should still have some understanding of the factors that led to the decision up for review. Frank seems to suggest that our study of these factors should make us aware of our ignorance, but we could adopt a more practical approach that recognizes that jury consultants are considered essential and are highly paid. Law school ought to discuss factors influencing decisions on issues of fact.

Second, the application of the idea of legal magic to jury instructions seems like another under-explored subject. We read numerous decisions in which jury instructions are declared invalid, but we have not spent any time on studies examining how juries react to a given set of instructions. We ignore Frank’s point that “Anyone who has ever watched a jury trial knows that the rules often become a mere subsidiary detail, a part of a meaningless but dignified liturgy recited by the judge in the physical presence of the jury and to which the jury pays scant heed.” (54)

-- DavidHirsch - 05 Feb 2012

I particularly agree with your second point, David. Years ago I was selected to be on a jury, and I can bet no person (including myself) recalls what instructions were given to us. This was a domestic violence case, where the city brought charges against the husband for allegedly beating his wife. What’s interesting is that this case also sheds truth to Frank’s criticism of the Lasswell/McDougal theory that “prediction is based on the expectancy that past relations among variable will continue.” (202) Applying this to juries, Frank writes: “In some cases involving “dramatic” issues, power group attitudes, for or against one side, shared by the trial judge or jury, will foreseeably outweigh all other considerations and dictate the decisions.” (203) I think it’s reasonable to think that a domestic violence issue can be considered pretty "dramatic," one where a majority of people have a strong feeling one way or another. In this case, the guy (the assaulter) was a scumbag, no doubt about it. His personality oozed this sort of overbearing macho type attitude. There was circumstantial evidence against him and his testimony did not help his credibility at all. You’d think this would be a prime example where this evidence would “outweigh all other considerations.” Well, it didn’t, and the guy went free. I have no doubt it was because the wife was either scared or felt threaten to the point where she refused to make any accusations against him. In the end, the prosecution lost because they failed to get the wife on their side. Perhaps I’m giving away my position on the matter, but my own bias thought this guy would be convicted no problem before I heard the wife’s side of the story (or really lack thereof).

To another point, I found these excerpts insightful because I definitely struggled during the first few weeks of last semester trying to fight the existence of modern legal magic. Frank writes: “In such lawsuits, the crucial factor is not the legal rule, but solely the ‘facts.’” (52) I came to law school thinking everything was about learning legal rules. I don’t know why – could be because I don’t have lawyers in my family or take a legal studies class in undergrad or do enough research prior to enrolling. But I learned quickly, more quickly than I wanted to, that the point of reading cases wasn’t to memorize legal rules. I remember spending so much time in trying to understand the rule behind a case, only to come to class the next day and have the professor say that the case was wrongly decided. But even though Frank reminds us that there is not only “fact discretion,” but also “rule discretion,” I felt this was nicely counterbalanced with this view: “Practical lawyers who deride legal theorizing as a frivolous subject unworthy of their attention are theorists nonetheless. But their theories, being inarticulate and unconscious, are more likely to do harm than those of the lawyers who more consciously theorize” (192). I admit I started out being in the former group, the aspiring “practical lawyer.” However, I think one of the advantages of being in Eben’s class is that we are learning how to “consciously theorize.” This way we can all hopefully avoid the natural tendency to “shape the chaotic world into some intelligible form.” (200).

-- LizzieGomez - 06 Feb 2012