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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, March 24, 2014 ::
    Civil Juries

    Last Friday we had a panel at Regent, co-sponsored by our Federalist Society chapter and by The Seventh Admentment Advocate (Andrew Cochran, Washington rep.). Our principal speaker was legal history Prof. Paul Finkelman, of Albany Law School, currently visiting at Louisiana State; I added some comments, and there was q-&-a between us and with the audience.

    We had hoped to have as well Houston-based trial attorney Sean Patrick Tracey, but he was detained by an illness in the family - something I offer to students as a good example: this very busy litigator dropped everything to be with a sick relative. Too often the practice of law messes up one's priorities; not so with Mr. Tracey.

    The topic was frames as, "Should the Seventh Amendment be Incorporated"? Prof. Finkelman took the view that civil jury access is under threat, but that a comparison of how many filings get to juries in state versus federal court shows that simply incorporating the Seventh would change very little. His target, rather, is the Federal Arbitration Act, decisions such as Circuit City interpreting it, and boilerplate language creating contracts of adhesion that enforce it.

    Me - I did my originalist thing: that the Framers' generation thought of jury service as even more important than voting as a form of civic participation and of self-government. It was essentially my Weekly Standard article, except that I also pulled in Strauder, where the Court showed at least as much sympathy for the plight of the excluded black jurors as for Strauder himself, tried without even the possibility of a black juror. In other words, the Court vindicated the rights of blacks to be jurors, more than (as it made clear) the right of Strauder to have one.

    Final note: Prof. Finkelman - who enjoys helping and advising students across ideological barriesrs, and who also has a specialization in the law of baseball - asked me why the Federalist Society was taking an interest in juries. I replied: the Federalist Society as such doesn't take positions, but I'm taking an interest in juries on originalist and civic-participation grounds, with a tip of the hat to Prof. Akhil Amar on this issue. FedSoc people think a lot of different things. Prof. Finkelman said, "Just what I like best - a game where you can't tell the players even with a program!"

    :: David M. Wagner 2:01 PM [+] ::

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