Home » Constitution, Courts, Laws, Legal » Jury Nullification – People Stripped of Their Power

Jury Nullification – People Stripped of Their Power

This is a follow on to my earlier article urging people to write their congress persons in support of H.R. 2679, Public Expression of Religion Act of 2005.

What I want to talk about here is how the people have been stripped of their right to have a jury judge the law – commonly called jury nullification – and have a judge’s opinion substituted for that of a jury of peers as intended by the constitution.

Jury nullification is a jury’s refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented. Instead, a jury bases its verdict on other grounds.

The people have been stripped of this right to be judged by a jury in federal constitutional rights cases by the prevalent practice of seeking only injuctive relief (technically less than $20 in damages) and using exhorbitant attorney fees as a proxy for punitive damages. Punitive damages are explicitely intended to have a chilling effect on the cause of action. Legal fees are not supposed to be punitive damages but simply reimbursing of legitimate expenses to the prevailing party. But when legal fees hit the seven figure ballpark as it did in Kitzmiller v. Dover School Board they cease being a legitimate expense and become a proxy for punitive damages.

The constitution preserves the right of a defendant to request a jury trial when damages (actual and punitive) exceed $20. That’s because in all but the most trivial of cases the people have wanted to have the right to be judged not by an elite federal justice but by a jury of their peers from their local community.

If you object to judicial activism this is the way to fix a lot of the abuse of it. Simply treat legal fees the same as damages in determining whether the right to a trial by jury is preserved. I’m supremely confident that had there been a jury trial in Dover even had the complainant prevailed, the jury would not have allowed a million dollar punishment against the school board. The ACLU would have had to live up to its specious billing as a non-profit group and actually do the work pro-bono.

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28 Responses to Jury Nullification – People Stripped of Their Power

  1. You have interpreted jury nullification the OPPOSITE of what it usually means. The foundational right of “Jury Nullification” is the right of common citizens in a jury to uphold the higher law and to do what is right in the face of abuse by the King, Judges under the thumb of the King, or Parliament.

    See [http://plaza.ufl.edu/edale/China%20courses/Constitutional%20history/Trial%20of%20the%20Seven%20Bishops%20Excerpts.htm Trial of the Seven Bishops 1688]
    The classic example is the Trial of the Seven Bishops, 1688, where the King tried to force them to read from the pulpit his decree on annulling his marriage. When they refused, the king threw them in jail. The jury freed them despite the Crown’s prosecuting them. This was the foundation for codifying the English Bill of Rights in 1689, from which we draw the US Bill of Rights.

    I’m not sure how you inferred an opposite interpretation but in any case I don’t have any significant disagreement with the way you described it but that’s not a complete description of the issues surrounding nullification today. The common fear (perhaps dated but similar situations can be imagined) is that white southern juries won’t convict white people of crimes against black people. If nullification is allowed, and it is, there’s nothing that can be done about this form of abusing it because of prohibition against double jeopardy (a person cannot be tried for the same crime twice). -ds

  2. Is this really an Intelligent Design topic? The connection seems tenuous.

    Quite right. Sorry about that. The latest revision of the blog software hides the category selection so it’s easy to not think about picking out a proper category. I’ll change it most riki tik to something more appropriate. Mibad. -ds

  3. Even the most strict constructionist would not have advocated for a jury in Dover. The Seventh Amendment, to which you allude, states: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

    The phrase “suits at common law” is were your argument goes off the track. Way back in the day they had courts known as “common law courts” or “law courts” and courts known as “courts of equity.” The distinction between law and equity still exists even though jurisdiction over the two areas has been merged in the federal courts and most state courts. Why is this important? Dover was a suit for injunctive relief. As such it was an equitable action, not a “suit at common law.” There is no right to a jury (and never has been) in a case seeking equitable relief such as an injuction, and the Seventh Amendment does not apply.

    This is not to say that I disagree with where you want to go. I don’t. I know from personal experience in my own practice that cities, counties and school districts are scared to death of having to pay the ACLU’s attorneys fees (The statutory culprit, by the by, is section 1988 of Title 42 of the United States Code). And the ACLU exploits that fear ruthlessly to leverage its influence and push local governments around in cases that are not even close to the line. Congress needs to take this club away from the bully boys (and girls) at the ACLU. But appealing to the Seventh Amendment to support our case is a blind alley.

  4. 4

    BarryA wrote in Comment #3 –
    >>>>The phrase “suits at common law” is were your argument goes off the track. Way back in the day they had courts known as “common law courts” or “law courts” and courts known as “courts of equity”………Dover was a suit for injunctive relief. As such it was an equitable action, not a “suit at common law.” There is no right to a jury (and never has been) in a case seeking equitable relief such as an injuction, and the Seventh Amendment does not apply.

  5. 5

    Sorry — my comment was cut off again — must be those arrows that I am using. I will try something else this time.

    BarryA wrote in Comment #3 –
    —-The phrase “suits at common law” is were your argument goes off the track. Way back in the day they had courts known as “common law courts” or “law courts” and courts known as “courts of equity”………Dover was a suit for injunctive relief. As such it was an equitable action, not a “suit at common law.” There is no right to a jury (and never has been) in a case seeking equitable relief such as an injuction, and the Seventh Amendment does not apply.—

    While actual damages (as opposed to nominal damages, usually $1 per plaintiff) are rare in Establishment Clause cases, they are not unknown. In expert testimony at the House subcommittee hearings on the bill, an attorney said,

    “In almost 30 years of practice in the field, I can recall no more than half-a-dozen Establishment Clause cases in which actual damages have been awarded — but these were all horrific cases, involving flagrant violations of the Clause. In at least two of those cases, the reaction to plaintiffs’ having objected to traditional religious practices was so severe that they had to leave the community.” Page 9 from
    http://judiciary.house.gov/med.....062206.pdf

    The nominal damages award in Dover was $11, $1 for each plaintiff. So with 21 plaintiffs, the nominal damages claim would be $21, over the $20 threshold (LOL). Anyway, the plaintiff is normally in control of the claims for damages, so the plaintiff controls whether there is a 7th Amendment right to trial by jury, unless the defendant has grounds for a counterclaim.

    DaveScot was right when he called the fee award a “proxy for punitive damages.” In fact, it is worse than that. Imagine what the reaction would be if the $1 million bill had been called “punitive damages” or a “fine” instead of “attorney fees.” The ACLU, the Darwinists, et al. are applauding the $1 million bill and some are even saying that the school board “got off easy,” but at the very worst, the school board deserved nothing worse than a slap on the wrist, if even that much.

    Unfortunately, the present version of HR 2679 could lead to problems in situations where there is a threat of both establishment clause suits and free exercise suits An example of such a situation is where a religious organization wants to meet on a public property but is not allowed to do so because of fear of an establishment clause suit, and then the organization sues on the grounds of a free exercise violation. In such situations, eliminating the fees for just the establishment clause suits is likely to cause public officials to lean too heavily in favor of free exercise rights because the public officials would rather risk an establishment clause suit than a free exercise suit. So I think that it would be better to just have a cap on attorney fees for both establishment clause cases and free exercise cases. But as I said, I think that the present bill is much better than nothing.

    Do you think the verdict in Dover would have been different if it were a jury trial? I surely do. The defendants were barred from a jury trial because only injuctive relief was sought. The injunctive-only relief sought was a strategic ploy by the complainants specifically to avoid a decision from a jury of peers. A federal judge is hardly a peer to board members of a microscopic school district. It’s a miscarriage of justice to deny them a jury of peers. -ds

  6. One could arge that the result in Dover would not have been different had there been a jury trial. Jurys find facts and, unlike in criminal cases, in a civil case in which facts are not in dispute the judge can take the case away from the jury and grant what is called a “directed verdict.” There may have been some disputed facts around the edges in Dover, but the central facts upon which the award of relief turned were not in dispute.

    Is there a federal civil rights jury trial where there was a directed verdict *against* a defendant that was reviewed by the Supreme Court and upheld? I’d like to read it. What central facts were not in dispute? -ds

  7. Something else to keep in mind is that the Dover case was assigned to someone who has to reside on the low end of the scale of legal competence in a ranking of federal judges. Jones ran the Pennsylvania Liquor Control Board before Bush appointed him to the bench, probably as a favor to Tom Ridge.

    A smarter, more detached judge would have given a much different decision, I think. Certainly the opinion would have been more coherent.

  8. sour grapes make me pucker.

  9. 9

    DaveScot wrote in Comment #6
    —” Is there a federal civil rights jury trial where there was a directed verdict *against* a defendant that was reviewed by the Supreme Court and upheld? I’d like to read it. What central facts were not in dispute? ” —

    This kind of stuff is discussed on the 2nd page of Findlaw’s Seventh Amendment Annotations under the topic headings “Directed Verdicts,” “Procedures Limiting Jury’s Role,” and “Jury Trial Under the Federal Employers’ Liability Act,” at –

    http://caselaw.lp.findlaw.com/.....07/02.html

    Also, another important topic on the above webpage is “The Continuing Law-Equity Distinction.”

    Juries have a lot of disadvantages. They cannot write opinions but can only answer yes or no on particular counts, and they can also set dollar amounts of damages. A jury generally listens only to oral arguments and does not read written arguments. Because juries do not issue opinions, appeals of jury decisions are often based on such things as the failure of the judge to give the jury proper instructions.

    I agree with tribune7 that the biggest problem with the Dover decision was that Judge Jones is kind of a nut. For example, his Dickinson College commencement speech’s remarks about the founding fathers’ “true religion” were especially foolish — see
    http://im-from-missouri.blogsp.....y-and.html

  10. tribune 7,

    I did not know this about Jones, but it proves (as if further proof were necessary) that there is nothing special about federal judges. I will cite my aphorism about federal judges again: Q. What is a federal judge? A. A lawyer who knows a senator (or in this case a secretary).

  11. Is there a case that could be made that using large legal fees to bully their way through the courts is extortion? I’m not at all a legal scholar, I’m just curious. I know that what’s right and what’s legal don’t always line up.

    JanieBelle

  12. Barry,

    And as a Pa. resident I will note that the qualifications for running the PLCB include the inability to think independently, a willingness to attend fundraisers and an instinct to recognize which rear-end to kiss, albeit in lieu of the latter dumb luck could suffice.

    Before getting tapped by Ridge, Jones was a municipal solicitor and part-time public defender. Here’s his wiki bio: http://en.wikipedia.org/wiki/John_E._Jones_III

  13. Is there a case that could be made that using large legal fees to bully their way through the courts is extortion?

    Worse. If there’s more than one lawyer involved you could make it a RICO case.

  14. tribune 7,

    Wow! I have to say that Bush’s appointments in the West are a mixed bag at best, which is a disappointment to those of us who had (I was about to say “expected,” but that is too strong) hoped for better. I am still cautiously optimistic about his two Supreme Court appointments.

    JanieBelle,

    The Supreme Court has left open a little room to say that “punitive damages” awarded in a civil case may sometimes arise to a violation of the “cruel and unusual punishment” clause of the 8th Amendment. Perhaps one could argue that a large fee award is punitive and rely on this line of cases, but that would really be pushing the envelope. Also, I don’t think that line of cases has a bright future given recent resignations and appointments, and I think that is a good thing, because an amendment designed to prevent the federal government from imposing cruel and unusual criminal punishments should not be extended to strike down awards in civil cases. We must be careful not to decry judicial activism we don’t like and then turn around and ask for activism we do like.

  15. Barry

    Ditto that.

  16. 16

    BarryA wrote –
    —I did not know this about Jones, but it proves (as if further proof were necessary) that there is nothing special about federal judges. I will cite my aphorism about federal judges again: Q. What is a federal judge? A. A lawyer who knows a senator (or in this case a secretary). —

    Yes, individual Senators have a great deal of power in the selection of federal judges. For example, the so-called “blue slip procedure” gives individual Senators the power to veto judicial nominees from their own states — see http://jurist.law.pitt.edu/for.....altese.php As the saying goes, “it’s not what you know, it’s who you know.”

  17. 17

    BarryA wrote –
    —The Supreme Court has left open a little room to say that “punitive damages” awarded in a civil case may sometimes arise to a violation of the “cruel and unusual punishment” clause of the 8th Amendment.—

    BTW, the 8th Amendment also prohibits “excessive fines.” LOL I presume that soaking the Dover school board for a $1 million “fine” would have been considered “excessive.” Well, as Juliet said in Romeo and Juliet, “what’s in a name?” Highway robbery by any other name would … well, you know the rest.

  18. Mung,

    Thanks for your answer.

    Larry,

    You seem to know a lot about the law. How would a RICO case (that’s the organized crime law right?) work against the lawyers in Dover? Who would have to file it? Could one of the other parents in the district bring the suit? Could Judge Jones be named in it? Who would preside?

    Sorry for all the questions, but this really burns me.

    JanieBelle

  19. Oh, and thanks for your input, Barry A. You don’t think an extreme case like this merits extreme actions?

    JanieBelle

  20. 20

    JanieBelle wrote –

    —-Larry,

    You seem to know a lot about the law. How would a RICO case (that’s the organized crime law right?) work against the lawyers in Dover? Who would have to file it? Could one of the other parents in the district bring the suit? Could Judge Jones be named in it? Who would preside?—-

    Actually, I have no legal training. I did pursue several pro se lawsuits in the federal courts and the local superior court, so I learned the basic ropes and I am able to understand legal citations and do legal research. I also learned that a non-attorney who knows a little about the law can become an expert in a narrow area of the law by means of diligent research.

    There have been attempts to apply RICO laws in novel ways, like against abortion clinic demonstrators, but the courts did not accept that particular application. I think that there are no grounds for a RICO suit in Dover because there is no evidence that anything illegal was done. I think the defense should have complained about the excessive number of plaintiffs’ attorneys of record — 9-10 — and the excessive number of them — at least 5 –in the courtroom on every day of the six-week trial, on the grounds that such large numbers could lead to an unreasonably high fee award.

    Wikipedia has a discussion of RICO suits at –

    http://en.wikipedia.org/wiki/RICO_(law)

  21. Thanks Larry,

    You’re a dear. ;)

    JanieBelle.

  22. DaveScot’s reply to the first comment:

    “that’s not a complete description of the issues surrounding nullification today. The common fear (perhaps dated but similar situations can be imagined) is that white southern juries won’t convict white people of crimes against black people. If nullification is allowed, and it is, there’s nothing that can be done about this form of abusing it because of prohibition against double jeopardy (a person cannot be tried for the same crime twice). -ds”

    I can understand here how “jury nullification” is applied (as in, the jury holding a strong bias that obstructs them from giving a fair/lawful decision) in your example, but how does that connect to the idea that jury nullification would keep people from getting a trial by jury (which is what you say in your original post)?

    Am I reading things wrong? In the “racist white jurists” example a jury (of this type) is not a good thing to have because of the “jury nullification” power granted to the jury. In the Dover example, you’re saying that there was no jury because “jury nullification” removed the jury?

    Doesn’t there have to be a jury present to have “jury nullification”? The Wikipedia definition says that the jury is the one giving the verdict, not that the jury is removed from giving the verdict.

    *really confused*

    Wait, or does the reason for removing the jury come from the fear of “jury nullification” giving the jury too much power? If so, can you please explain it a bit more clearly? Thank you.

    A jury might have seen the Dover trial in a different way than the judge did. I think a jury might have found the school board innocent of wrongdoing or even if guilty they wouldn’t have made them pay a million dollars for the mistake. A jury can basically decide whatever they want and when they find a defendant “not guilty” that’s the end of it. The complainants made sure there would be no jury by seeking injunctive relief only (no actual or punitive damages) but they DID get a million dollars in legal fees which, if you’re the defendant, hurts just as much as a million dollars in punitive damages. I think the Dover school board deserved the option of a jury when the effective penalty was far in excess of what the constitution ever intended a judge alone to levy. You might want to go to the link in the article which is the Wikipedia entry for jury nullification. You’re way confused about what it is. It’s a jury nullifying a law by refusing to convict someone of breaking the law even when it’s plain that the law was broken. If the jury doesn’t think it’s a good law they can refuse to convict. This a power that the authors of the U.S. constitution wanted the people to have. The founders trusted the people to do the right thing more than they trusted government officials to do the right thing. I share their sentiment. -ds

  23. 23

    The URL link in Comment #20 is bad. It is necessary to copy the entire link — including the (law) part — and paste it in your URL window. Otherwise the article cannot be accessed.

  24. Ah, that makes it more clear, thank you. But then why do you define jury nullification as this:

    “What I want to talk about here is how the people have been stripped of their right to have a jury judge the law – commonly called jury nullification”

    in your post if you, as you said, define it as being the jury nullifying the law? Is it “the jury nullifying the law” or “the jury being nullified”?

    Jury nullification is the jury nullifying the law. The Dover school board was not allowed to put their case before a jury because of what I consider a loophole i.e. only injuctive relief was sought (plus punitive-size legal fees). If they’d have been able to put their case before a jury, even if the judge was convinced the board was guilty, the jury may have thought the law was wrong and found the school board innocent – in effect nullifying the law. -ds

  25. 25

    DaveScot wrote –
    —”The Dover school board was not allowed to put their case before a jury because of what I consider a loophole i.e. only injuctive relief was sought (plus punitive-size legal fees). If they’d have been able to put their case before a jury, even if the judge was convinced the board was guilty, the jury may have thought the law was wrong and found the school board innocent “—-

    First, as BarryA pointed out, there is the problem of “directed verdicts,” where the judge directs the jury to make a particular verdict or overrules a verdict that the jury made. See –
    http://caselaw.lp.findlaw.com/.....07/02.html

    In addition, the judge may express his opinions to the jury, give general instructions to the jury, etc., as discussed under the topic “Procedures Limiting Jury’s Role” on the above webpage.

    Also, there is the problem that the “legal” claim (in this situation, the claim for damages) would be decided by a jury while the equitable claim (the constitutionality of the ID policy) would still be decided by a judge: “It has been held by the Supreme Court that where both equity and law are involved, the jury must first decide the legal issues, followed by a determination of equitable issues by the judge. See Beacon Theaters v. Westover, 359 U.S. 500 (1959).” — from
    http://en.wikipedia.org/wiki/S.....and_equity

    One thing that I find confusing about the preceding Supreme Court ruling is that it may be necessary for the jury to decide the equitable issues in order to reach a verdict on the legal issues, and in that situation both the judge and the jury would be deciding the equitable issues, so there is a potential for conflict (the judge might resolve this conflict by means of a “directed verdict”).

    Also, the initial damages claim is under control of the plaintiff, so the defendant could raise the amount at stake to over $20 only by filing a counterclaim, and it would be hard to justify a counterclaim here.

    As I noted in the following comment, there have been a few establishment clause cases where substantial (as opposed to nominal) damages have been awarded –http://www.uncommondescent.com/index.php/archives/1274#comment-45931

    I don’t think that a jury trial would offer any advantage in this case. As noted above, the issue of constitutionality may end up being decided by a judge, anyway. And even if a jury decides the constitutional issues, the jury would write no opinion, so if the jury decides against the defendant, it would be difficult or impossible to argue against the jury verdict in an appeal. I think that if there were any advantage to jury trials in this kind of case, more litigants would try to establish a right to a jury trial by making claims or counterclaims for over $20.

    Also, in case you haven’t noticed, Ed Brayton’s attacks against you regarding these issues of HR 2679 and jury trials have intensified — see

    http://scienceblogs.com/dispat....._think.php

    Ed made some really big bloopers in the above article. For example, he assumed that the ACLU is getting only a small part of the attorney fee award. Wrong. Pepper-Hamilton is getting nothing except reimbursement for its expenses and the whole kaboodle after deduction of expenses is going to the ACLU and the Americans United for Separation of Church and State — see http://www.yorkdispatch.com/local/ci_3535139

    Ed also falsely stated, “No one is getting rich on such cases; hell, no one’s even getting comfortable on them.” Wrong — the ACLU and the AUSCS are getting rich off these awards and are also using the threat of these awards to intimidate governments. See –
    http://www.legion.org/?content=aclu_magarticle

    Also, Ed has of course been ignoring one of your main points — that the $1 million attorney fee award is just a draconian penalty in disguise. When he is not opposing HR 2679, though, Ed will say that the Dover school board got what was coming to them.

    As I said — I think that to keep a level playing field, there should just be a cap on attorney fee awards in both establishment clause and free exercise lawsuits instead of just a ban on fee awards in establishment clause lawsuits. Still, though, I think that HR 2679 is better than nothing.

    You’re missing the whole point. If legal fees are considered “damages” then an otherwise equitable claim becomes a legal claim. The 7th amendment is crystal clear that when there’s a monetary damage claim (above a certain amount which admittedly needs to be adjusted for 200+ years of inflation) the case is a case at common law with a right to a trial by jury. A directed verdict of guilty is very likely to be reversed. Did you read this in the first link you gave to me:

    “This difficulty has been resolved by stressing the fundamental nature of the jury trial right and protecting it against diminution through resort to equitable principles.”

    A judge ordering a jury to find someone guilty is an incredible usurption of the constitutional right to a trial by a jury of peers. The only usual case of this is when defendant files a motion to dismiss for insufficient evidence after plaintiff has presented all his evidence. If the judge agrees that even if all of plaintiffs’ evidence is factual it is insufficient and there’s nothing further to try so the case is dismissed. Keep in mind the principle of presumption of innocense.

    I don’t pay any attention to Ed Brayton. He’s a crude shrill impotent moron and nothing more. If you want to bring attention to his rants again please do it on your own blog. -ds

  26. 26

    DaveScot wrote in Comment #25 –
    —You’re missing the whole point. If legal fees are considered “damages” then an otherwise equitable claim becomes a legal claim. The 7th amendment is crystal clear that when there’s a monetary damage claim (above a certain amount which admittedly needs to be adjusted for 200+ years of inflation) the case is a case at common law with a right to a trial by jury. A directed verdict of guilty is very likely to be reversed. Did you read this in the first link you gave to me: “This difficulty has been resolved by stressing the fundamental nature of the jury trial right and protecting it against diminution through resort to equitable principles.”—

    And did you read this in the same link:

    “…..the trial court directed a verdict for the Government on the ground of the insufficiency of the evidence, and was sustained in so doing by both the appeals court and the Supreme Court. Three Justices, speaking by Justice Black, dissented in an opinion in which it is asserted that ”today’s decision marks a continuation of the gradual process of judicial erosion which in one- hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment.’ “‘

    – so in that court case, three justices did not believe that the jury trial right had been protected “against diminution through resort to equitable principles.”

    And did you read this quote from Wikipedia that I posted above:

    “It has been held by the Supreme Court that where both equity and law are involved, the jury must first decide the legal issues, followed by a determination of equitable issues by the judge. See Beacon Theaters v. Westover, 359 U.S. 500 (1959).”

    – so the equitable issues end up being decided by a judge anyway.

    Also, as I pointed out, a jury does not write an opinion, so how can a jury verdict be appealed?

    I think that jury trials are not the answer.

    Jury verdicts of *guilty* are appealed all the time. Generally the appeals court does not reverse findings of fact but look rather look at procedure. However plenty of decisions have been reversed because new facts came to light, even many years later. The Cobb county case where the appeals court threw it back to the district court because of factual problems is a rather rare thing – the appeals court did indeed find a problem with the facts. As for your non-point about insufficiency of evidence I already stated that IS the common case for a directed verdict. I carefully explained that after plaintiff completes presenting evidence, if the judge finds the evidence insufficient to complete the crime even if all of it is true, he can direct a verdict of not guilty. That’s not uncommon at all. You are really confused about directed verdicts. Maybe this will help.

    Directed Verdict – A procedural device whereby the decision in a case is taken out of the hands of the jury by the judge. A verdict is generally directed in a jury trial where there is no other possible conclusion because the side with the burden of proof has not offered sufficient evidence to establish a prima facie case. A directed verdict is provided for by federal and state rules of civil procedure. In a criminal action, an acquittal may be directed in favor of a defendant, based upon rules of criminal procedure.

    In a previous post I told you to keep in mind the principle of presumption of innocence. If you’d done that you could have figured out who always has the burden of proof. Hint: It is NEVER the defendant. See if you can figure it out now.

    -ds

  27. 27

    DaveScot wrote in Comment #26 –
    —- Generally the appeals court does not reverse findings of fact but look rather look at procedure …… The Cobb county case where the appeals court threw it back to the district court because of factual problems is a rather rare thing – the appeals court did indeed find a problem with the facts. —-

    The Cobb County evolution-disclaimer textbook sticker case does not just concern facts (e.g,, an alleged 2300-signature petition supporting the sticker) but also concerns the application of those facts to a determination of whether there was an establishment clause violation, and such an application of facts requires a written opinion. Juries cannot write opinions, so here is where judges come in.

    —- As for your non-point about insufficiency of evidence I already stated that IS the common case for a directed verdict.—-

    Why can’t judges’ decisions about insufficiency of evidence be as arbitrary as their decisions about other things? My Comment #26 mentioned a case where three dissenting justices felt that a judge’s directed verdict that held that evidence was insufficient marked “a continuation of the gradual process of judicial erosion which in one-hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment.”

  28. 28

    DaveScot wrote:
    —I don’t pay any attention to Ed Brayton. He’s a crude shrill impotent moron and nothing more. If you want to bring attention to his rants again please do it on your own blog. —

    Done. See –

    http://im-from-missouri.blogsp.....oesnt.html

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