Hillel Levin

Is There a Bias Against Education in the Jury Selection Process?

Hillel Y. Levin et al. — Mon, 24 May 2010 11:20:41 PDT

Herbert Spencer famously said that a jury is “a group of twelve people of average ignorance.” That is not a particularly rosy picture of juror competence, but it presents a far better view than the one held by many -- if not most -- modern commentators. The more common contemporary sentiment was captured by Mark Twain when he wrote, in his inimitable style, “[w]e have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve [people] every day who don't know anything and can't read.” Specifically, there is widespread belief that relatively educated members of jury pools are weeded out during the selection process, resulting in relatively undereducated juries. If Spencer were a contemporary legal commentator, he may have said that a jury is composed of people of above average ignorance, or perhaps more accurately, below average education.

In recent years, commentators have written dozens of articles offering both explanations for what causes this problem as well as elaborate and wide-ranging policy proposals aimed at fixing it. They are surely right to focus on this issue, because the problem is potentially serious, and the picture appears bleak. As trials continue to become more complex, it would be perverse if relatively educated members of pools -- who may be the very best kinds of jurors -- were systematically excluded from jury service.

However, there has been virtually no attempt to examine the extent and causes of the problem empirically. The scholarly literature relies on a combination of theory and anecdotal evidence.

This Article presents the results of a study, conducted in the United States District Court for the District of Connecticut, that puts these theories to the test. The study was designed to examine whether there is a bias in the jury selection process that results in relatively undereducated juries, and, if so, how much and why.

The results are surprising: there is no evidence that juries are undereducated relative to the venires from which they are selected. Indeed, juries seem to be better educated than the Connecticut population demographics reported by U.S. census data. Thus, our study suggests that the system is not broken in the way we typically imagine. We conclude that it would be a mistake to adopt the more radical policy proposals offered by scholars who argue that juries are relatively undereducated, at least until empirical evidence is produced that demonstrates that such a systemic problem actually exists. Further, our findings affirm our beliefs that empirical analysis (where it can be performed) is essential to policy discussion and that scholars ignore practical, non-academic literature at their peril.

Part II of this Article reviews current scholarship and traces the theories and proposals offered by commentators to explain and address the perceived problem of the relatively undereducated jury. Part III, the heart of our Article, presents the study's methodology and surprising results. Finally, Part IV discusses the implications of our findings and proposes a direction for further exploration of this important issue.

Making the Law: Unpublication in the District Courts

Hillel Y. Levin — Mon, 24 May 2010 11:20:10 PDT

In recent years, one particular area of focus for legal scholars concerned about the increasing privatization and opacity of courts has been the issue of systematic unpublication of judicial opinions by the appellate courts. Judges have issued dueling opinions on the constitutionality of the practice and traded polemics on its appropriateness. Practitioners – whose voices often seem lost (or at least muted) on issues like this – are in the thick of the debate. No longer merely academic, this debate has even spawned a change in the rules of appellate procedure (one that amusingly pulled off the difficult feat of being both highly controversial and relatively minor).

Unfortunately, amid all of the talk about unpublication by appellate courts and the larger issues of accessibility, accountability and transparency that it raises, unpublication in the district courts — more than 95% of opinions go unpublished – has escaped the notice and consternation of scholars. I say “unfortunately” because this practice seems to raise at least as many, and likely more, problems as the unpublication practices in the appellate courts.

In this Article, I address the issue of unpublication in the district courts from a normative perspective for the first time. I draw from the rich parallel literature regarding appellate court publication practices, but argue that unpublication in the district court context raises an even broader set of concerns. My argument rests on two fundamental points. First, district courts play a unique institutional role in our system of adjudication, one that gives district judges exceptional power to make and shape the law. Indeed, from the perspective of a realist, district judges have even greater control over the law than do their appellate counterparts, yet they often operate free from appellate oversight and public scrutiny. Second, in contrast to the appellate context, where even “unpublished” opinions are usually available for public review, in the district court context, “unpublished” opinions almost disappear. Thus, the law in the district courts--the central location of lawmaking in our system--is rendered opaque, and our district judges unaccountable.

My argument proceeds as follows. In Part II, I begin by exploring the institutional role of the district courts and arguing that district judges, in a legal realist sense, make the law. In Part III, I define my terms “unpublished” and “opinions” for the district context, and provide an overview of the publication process in the district courts. Next, in Parts IV and V, the heart of this Article, I examine the troubling implications of the practice – what I term the “transparency” and “accountability” problems, respectively – and then argue that the justifications for unpublication are overstated, unconvincing and anachronistic. Finally, in Part VI, I argue that existing technology allows us to move beyond this problem and briefly explore how, from a practical standpoint, current practices could be reformed.

The Food Stays in the Kitchen: Everything I Needed to Know About Statutory Interpretation I Learned by the Time I was Nine

Hillel Levin — Mon, 20 Oct 2008 06:44:58 PDT

Based on a true story, this brief Essay begins with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges--father, babysitter, grandma (a liberal jurist, of course), and others--who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

The piece is meant to demonstrate the following:

* We all regularly use the basic tools and modes of statutory interpretation;

* When we interpret pronouncements in real life, we resort to a mix of textualist, literalist, purposivist, legal process, precedent, and other techniques and sources;

* Although the various tools seem perfectly reasonable individually, in the aggregate, they can lead to ridiculous results;

* Even when we agree that the ultimate results are ridiculous, it is sometimes hard to pinpoint exactly where the error occurred.