Lectures on Trial Judging
whoooo26505 at yahoo.com
Tue Jun 1 16:18:51 PDT 2010
My apologies in advance for sending material to this list that many may not want to receive. But I've just completed uploading a new trial judging segment to one of my courses. It's a mixture of old and new lecture material. It's pretty good stuff. I think it would be good material for any PhD candidate who was looking for teaching ideas about trial judging, and who already had a JD and significant practicing experience. I take my kids through an exploration of review standards first (lecture 12). Then conceptualize how this empowers trial judging, and whether this is good (lecture 13). I top it off with an example: The Mike Tyson trial. I also have a nifty new set up for posting lecture material online.
If anyone is interested in the pedagogy, a couple of things should be noted. (1) Not one empirical study is used or needed to make any of the points. Yet the points are as strong and informative as can be. (2) There is absolutely nothing that the concept of attitudinalism does to help students through the material. That is, when judging is poor at the trial level, we don't say something like, "politics cannot be avoided." We instead are shocked and want a better example, which we can readily imagine being present. (it's like we feel cheated). Yet, with Supreme Court rulings, we are inclined not to look for poverty in the offering, because: (a) what is poverty here requires expertise; and (b) it is much easier (and more lazy) to just say "the judge has values and expressed them."
This strikes me as a cultural and academic prejudice. For in both instances -- trials and supremes -- the student should be taught to see poverty in the work product. It doesn't matter whether judging is left or right -- it matters only whether it is a poor specimen of the aesthetic. (Whether it is poor casuistry).
Anyway, my apologies again for those who do not want links to lectures. (Listed in reverse-order):
14. The Mike Tyson Trial -- What Happens When Judging Is Extremely Poor
This lecture covers the Mike Tyson trial, as told through the accounts of Alan Dershowitz. Students are shown how the suspicious nature of the allegations made against Tyson by Desiree Washington were never able to be shown to the jury, because of the terrible trial judging. Tyson's lawyers were forbidden from presenting their theory of the case. All of the negative trial rulings were protected by discretionary doctrines. Jurors were not allowed to hear the evidence that in all likelihood would have aquitted Tyson. The moral of the story: the system fails when judges don't behave. The system can't properly police poor judging.
13. The Power of the Trial Judge -- Understanding the Nature, Significance and Ethics of Trial Court Discretion
This lecture builds upon the last. It covers the nature and significance of the power that trial judges wield over cases before them. Particular attention is paid to how one should conceptualize "law" in trial courts (given the presence of discretion). Also, the discretion of trial judge is characterized as a "local power" intelligently configured into the judicial system, but which can only be legitimate if its use is "principled" (the Dworkinian idea). Students are shown an important thought experiment that brings this issue to life. They are also shown the tensions between pragmatism in judging and wanting law to be "pure" in providing answers to issues that arise in trials. At the end, personality factors are considered as being key to making sense of the choices trial judges come to make.
12. Standards of Review: The Secrets That Make Trial Judges Powerful in The Cases They Can Manipulate
This lecture covers the four basic standars of review under which rulings in a trial are appealed. Particular attention is paid to how three of the standars allow for wide use of discretion. Those standars are: (a) abuse of discretion; (b) clearly erroneous; and (c) harmless error. When combined with the fact that trial judges do not create precedent, the lecture argues that trial judges are vested with a significant amount of local power over many issues in the cases in which the preside. The lecture asks: is this consistent with the rule of law? What if like issues are not judged in like manner?
Regards and thanks.
Dr. Sean Wilson, Esq.
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860
Discussion Group: http://seanwilson.org/wittgenstein.discussion.html
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