Massive CRIME SCENE at the Reno Federal Courthouse – The 7th Amendment protest resumes…

7th amendment, seventh amendment, Reno, Reno federal court, Miranda Du, Brian Brown lawyer, brian brown attorney, thorndal, ty robben,

Reno Federal Courthouse protest by Ty Robben who demands his day in court

Today August 19, 2015 Ty Robben resumed his protest at the Reno Federal Courthouse in Reno, Nevada. Ty Robben want’s his day in court and has argued that the use of Summary Judgment also called FRCP 56 is unconstitutional and a violation of the 7th Amendment of the U.S. Constitution.

The protests seem to have had a positive affect, the court has responded very quickly in denying the Defendants Carson City et al latest delay tacit. Reno Federal District Court Judge Miranda Du denied Reno Attorney Brian Brown of the unscrupulous Reno law firm thorndal armstrong delk balkenbush & eisinger

Miranda Du, Brian Browm, reno, nevada,federal courthouse, crime scene, ty robben, thorndal armstrong delk balkenbush & eisinger,

Reno Federal Court turns into a CRIME SCENE

Miranda Du, Reno federal courthouse,

Reno Federal court protest

ThisIsReno.com covers the 7th Amendment protest! More protests are coming Monday 08/17/2015 to ???

7th Amendment Protest Held At Federal Courthouse

7th-amendmnet-protest-reno

A small protest was held Friday at the federal courthouse downtown. According to organizers Ty Robben and Mike Weston, the issue at hand is the use of summary judgments in lawsuits, what they called a violation of the Seventh Amendment that guarantees the right to a civil jury trial.

“I would like to thank the Courthouse security, ‘Homeland Security,’ for being professional and keeping us safe,” said Robben. He also thanked the Reno Police Department “who were on hand for what turned out to be a very, very casual protest. We didn’t chalk the sidewalks even though we could have.”

Robben said they will be holding more protests in front of Reno Federal Court this week.

Check back on the http://NevadaStatePersonnelWATCH.wordpress.com website.

We expect to resume protesting Wednesday 08/19/2015 at both the Federal Courthouse at 400 So. Virginal St. and the Washoe County Courthouse down the street on Sierra St.

The exact time depends on various factors, we like starting early, and we should be up and protesting by 8:00am to Noonish. Wind always causes problems with the signs and our massive “crime scene tape”.

We do plan to protest every day possible until we get justice! Email robben.ty@gmail for information. The public is welcome and if you have an issue to protest, we accept people who have been victimized. The protest is non-violent. 

“If you have been victimized by judicial corruption, police corruption, or government corruption – come on out to out next protest,” he said.

Please see the original story here and please like and share on Facebook:

http://thisisreno.com/2015/08/7th-amendment-protest-held-at-federal-courthouse/

7th Amendment protest goes off at the Reno Federal Court – Ty Robben proclaims summary judgment unconstitutional

Judge Miranda Du Reno Nevada Federal Court

Judge Miranda Du and Reno Attorney Brian Brown Summary Judgment is Unconstitutional! Justice delayed is justice denied

Today Friday August 14th 2015 Ty Robben and Mike Weston along with some friends made that statement that the use of Summary Judgment is unconstitutional and a violation of the 7th Amendment of the US Constitution that guarantees the right to a civil jury trial.

I would like to thank the Courthouse security “Homeland Security” for being professional and “keeping us safe”! says Robben who also thanks the Reno Police Department who were on hand for what turned out to be a very, very casual protest.

We didn’t chalk the sidewalks even though we could have said Robben who said he will continue the “peaceful protest” and hopes other join him in solidarity. After all, an injustice to one is an injustice to all. 

Summary Judgment is unconstitutional.

“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 7th Amendment to the Constitution of the United States of America

Summary judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Essay is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Judge Du Reno

Judge Miranda Du and dirty Harry Reid

The Supreme Court has held that “common law” in the Seventh Amendment refers to the English common law in 1791. This Essay demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles or “substance” of the English common law. The Essay concludes that, despite the uniform acceptance of the device, summary judgment is unconstitutional.

The Essay then responds to likely objections, including that the federal courts cannot function properly without summary judgment. By describing the burden that the procedure of summary judgment imposes upon the courts, the Essay argues that summary judgment may not be necessary to the judicial system but rather, by contrast, imposes significant costs upon the system.

read more: Why summary judgment is unconstitutional

Miranda Du

Judge Miranda Du and Reno Attorney Brian Brown Summary Judgment is Unconstitutional! Justice delayed is justice denied

Judge Miranda Du

Judge Miranda Du and Reno Attorney Brian Brown Summary Judgment is Unconstitutional! Justice delayed is justice denied

justice delayed is justice denied

Judge Miranda Du and Reno Attorney Brian Brown Summary Judgment is Unconstitutional! Justice delayed is justice denied

Constitutional Conversation: 7th Amendment

Judge Miranda Du

7th Amendment protest coming to Reno next week to demand the use of summary judgment as unconstitutional?

 Ty Robben on Infowars

Ty Robben at the Reno Monsanto protest showcasing the “World’s largest CRIME SCENE tape” 

5/07/30/7th-amendment-protest-coming-to-reno-next-week-to-demand-the-use-of-summary-judgment-as-unconstitutional/

Come help protest the rampant corruption this Friday 08/14/15 at 8am to noon in front of the federal courthouse on So. Virginia St. in Reno.

judge miranda du protest

This picture shows the size of the CRIME SCENE tape we will display in front of the Reno Federal courthouse.

Judge Miranda Du Reno Nevada Federal Court

Judge Miranda Du and Reno Attorney Brian Brown Summary Judgment is Unconstitutional! Justice delayed is justice denied

Today Friday August 14th 2015 Ty Robben and Mike Weston along with some friends made that statement that the use of Summary Judgment is unconstitutional and a violation of the 7th Amendment of the US Constitution that guarantees the right to a civil jury trial.

I would like to thank the Courthouse security “Homeland Security” for being professional and “keeping us safe”! says Robben who also thanks the Reno Police Department who were on hand for what turned out to be a very, very casual protest.

We didn’t chalk the sidewalks even though we could have said Robben who said he will continue the “peaceful protest” and hopes other join him in solidarity. After all, an injustice to one is an injustice to all. 

read more: Why summary judgment is unconstitutional

Miranda Du

Judge Miranda Du and Reno Attorney Brian Brown Summary Judgment is Unconstitutional! Justice delayed is justice denied

Judge Miranda Du

Judge Miranda Du and Reno Attorney Brian Brown Summary Judgment is Unconstitutional! Justice delayed is justice denied

justice delayed is justice denied

Judge Miranda Du and Reno Attorney Brian Brown Summary Judgment is Unconstitutional! Justice delayed is justice denied

Constitutional Conversation: 7th Amendment

We are doing a photo shoot and need some people to hold the “worlds largest crime scene tape” in front of the courthouse. we’ll be doing more protests and this is for the photo shoot to promote the next series of protests. If you have experienced government/judicial/police corruption, this protest is for you!

Contact robben.ty@gmail.com

Here’s the banner we need help displaying for a few hours.

  • Reno Federal Judge Miranda Du is at the center of the 7th Amendment Summary Judgment is unconstitutional protest in Reno Nevada. Dirty harry Reid introduces Miranda Du at nomination hearing and calls her a “boat child“.

Slow-balled, Stone-walled and Corn-holed…

Summary Judgment is unconstitutional.

“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 7th Amendment to the Constitution of the United States of America

Summary judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Essay is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Judge Du Reno

Judge Miranda Du and dirty Harry Reid

The Supreme Court has held that “common law” in the Seventh Amendment refers to the English common law in 1791. This Essay demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles or “substance” of the English common law. The Essay concludes that, despite the uniform acceptance of the device, summary judgment is unconstitutional.

The Essay then responds to likely objections, including that the federal courts cannot function properly without summary judgment. By describing the burden that the procedure of summary judgment imposes upon the courts, the Essay argues that summary judgment may not be necessary to the judicial system but rather, by contrast, imposes significant costs upon the system.

read more: Why summary judgment is unconstitutional

Stay tuned as this story develops.

Read more about Judge Miranda Du here: Harry Reid introduces his 2011 Judge Miranda Du at nomination hearing and calls her a “boat child”

Constitutional Conversation: 7th Amendment

Judge Miranda Du

7th Amendment protest coming to Reno next week to demand the use of summary judgment as unconstitutional?

 Ty Robben on Infowars

Ty Robben at the Reno Monsanto protest showcasing the “World’s largest CRIME SCENE tape” 

5/07/30/7th-amendment-protest-coming-to-reno-next-week-to-demand-the-use-of-summary-judgment-as-unconstitutional/

Help Ty Robben at gofundme.com and support the 7th Amendment protest coming to Reno Nevada August 2015.

Help support the 7th Amendment protest coming to Reno Nevada August 2015.

We got funding and did the protest – see the story here: 

https://nevadastatepersonnelwatch.wordpress.com/2015/08/14/7th-amendment-protest-goes-off-at-the-reno-federal-court-ty-robben-proclaims-summary-judgment-unconstitutional/

http://www.gofundme.com/8g6pqpf7es

We got funding and did the protest – see the story here: 

https://nevadastatepersonnelwatch.wordpress.com/2015/08/14/7th-amendment-protest-goes-off-at-the-reno-federal-court-ty-robben-proclaims-summary-judgment-unconstitutional/

UPDATE 08/09/2015: I got funding – Thanks to those who supported me as this protest starts this week. We are making new signs and I’ll have pictures up as soon as we hit the streets this week (or next depending on weather).

Reno Nevada resident Ty Robben plans to demonstrate in the very near future about the Reno Federal Court and in particular, Judge Miranda Du’s use of summary judgement to dismiss certain causes of action in his civil rights lawsuit against various Carson City officials including former disgraced DA Neil Rombardo , his corrupt assistant DA Mark Krueger and corrupt Carson City justice of the peace “judge” John Tatro.

“I plan to stay in front of the Reno courthouse with my signs until I get my day in court” says Robben.

Miranda Du judge,

Ty Robben says “This is hurting me financially and preventing me from getting treatment for my dog Tytan who’s suffering from bone cancer. They destroyed me and my family and now I am going to lose my dog.”

Ty Robben says “This is hurting me financially and preventing me from getting treatment for my dog Tytan who’s suffering from bone cancer. They destroyed me and my family and now I am going to lose my dog.” Update 08/04/2015 my dog passed. 

Ty Robben needs funding at http://www.gofundme.com/8g6pqpf7es to bring “The WORLDS LARGEST CRIME SCENE TAPE” to the Reno Federal Courthouse where he want’s to display the signs and use his 1st Amendment rights to protest the violation of his 7th Amendment rights. See previous KOLO news story here: https://youtu.be/gbk0rKPnbfs

Those listed are Defendants’ in a civil rights lawsuit filed by Robben that includes a cornucopia of claims including malicious prosecution, defamation, RICO (racketeering), false imprisonment, false arrest, and virtually every Constitutional amendment a person can suffer from including the 1st 2nd 4th 5th 6th 7th 8th and 14th amendments of the US Constitution!

Ty Robben is fed-up and demands justice or there will be no peace. Stay tuned as the next Bundy Ranch heats up in crazy Nevada.

Reno Federal Judge Miranda Du is at the center of the 7th Amendment Summary Judgment is unconstitutional protest in Reno Nevada.

Reno Federal Judge Miranda Du is at the center of the 7th Amendment Summary Judgment is unconstitutional protest in Reno Nevada. Dirty harry Reid introduces Miranda Du at nomination hearing

Judge Miranda Du

Reno Federal Judge Miranda Du is at the center of the 7th Amendment Summary Judgment is unconstitutional protest in Reno Nevada.

Summary Judgment is unconstitutional. “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 7th Amendment to the Constitution of the United States of America

Summary judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Essay is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Judge Du Reno

Judge Miranda Du and dirty Harry Reid

The Supreme Court has held that “common law” in the Seventh Amendment refers to the English common law in 1791. This Essay demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles or “substance” of the English common law. The Essay concludes that, despite the uniform acceptance of the device, summary judgment is unconstitutional.

The Essay then responds to likely objections, including that the federal courts cannot function properly without summary judgment. By describing the burden that the procedure of summary judgment imposes upon the courts, the Essay argues that summary judgment may not be necessary to the judicial system but rather, by contrast, imposes significant costs upon the system.

read more: Why summary judgment is unconstitutional

Stay tuned as this story develops.

Read more about Judge Miranda Du here: Harry Reid introduces his 2011 Judge Miranda Du at nomination hearing and calls her a “boat child”

Constitutional Conversation: 7th Amendment

Judge Miranda Du

7th Amendment protest coming to Reno next week to demand the use of summary judgment as unconstitutional?

7th Amendment protest coming to Reno next week to demand the use of summary judgment as unconstitutional?

5/07/30/7th-amendment-protest-coming-to-reno-next-week-to-demand-the-use-of-summary-judgment-as-unconstitutional/

7th Amendment protest coming to Reno next week to demand the use of summary judgment as unconstitutional?

Miranda Du

 Is Ty Robben’s 7th Amendment protest against Judge Miranda Du coming to Reno next week?

Judge Miranda Du Reno nevada

7th Amendment protest coming to Reno Judge Miranda Du next week to demand the use of summary judgment as unconstitutional?

Judge Miranda Du

7th Amendment protest coming to Reno Judge Miranda Du next week to demand the use of summary judgment as unconstitutional?


Is a 7th Amendment protest coming to Reno next week? Stay tuned. Summary Judgement is unconstitutional. Ty Robben plans to demonstrate in the very near future about the Reno Federal Court and in particular, Judge Miranda Du’s use of summary judgement to dismiss certain causes of action in his civil rights lawsuit against various Carson City officials including former disgraced DA Neil Rombardo and his corrupt assistant DA Mark Krueger.

Ty Robben started a go fund me website to help raise money for the protest and his dog Tytan who has medical needs because of a recent discovery of bone cancer in his leg.

Ty Robben’s lawsuit also includes corrupt Carson City justice of the peace “judge” John Tatro. judge tatro

The complaint also includes the Carson City Department  of Alternative Sentencing (DAS) and names numerous Defendants including Sheriff Kenny Furlong and even jailhouse Dr. Joe Joseph E. McEllistrem.

Those listed are Defendants’ in a civil rights lawsuit file by Robben that includes a cornucopia of claims including malicious prosecution, defamation, RICO (racketeering), false imprisonment, false arrest, and virtually every Constitutional amendment a person can suffer from including the 1st 2nd 4th 5th 6th 7th 8th and 14th amendments of the US Constitution!

Ty Robben is fed-up and demands justice or there will be no peace. Stay tuned as the next Bundy Ranch heats up in crazy Nevada.

Ty Robben says he want’s peace and justice. No justice is no peace. This is a crazy case where Judge Tatro falsify accused Robben of hiring a hit man to kill him and well as trying to frame Robben on the shooting of Tatro’s home which turned out to be the crazy drunk judges mistress! Only in Carson City can you find hillbilly justice like this.

Miranda Du judge, 7th amendment, protest,

Ty Robben says “This is hurting me financially and preventing me from getting treatment for my dog Tytan who’s suffering from bone cancer.”

Ty Robben says “This is hurting me financially and preventing me from getting treatment for my dog Tytan who’s suffering from bone cancer.”

Stay tuned as this story develops.

Why Summary Judgment is Unconstitutional

Suja A. Thomas

Abstract:

Summary judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Essay is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” The Supreme Court has held that “common law” in the Seventh Amendment refers to the English common law in 1791. This Essay demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles or “substance” of the English common law. The Essay concludes that, despite the uniform acceptance of the device, summary judgment is unconstitutional. The Essay then responds to likely objections, including that the federal courts cannot function properly without summary judgment. By describing the burden that the procedure of summary judgment imposes upon the courts, the Essay argues that summary judgment may not be necessary to the judicial system but rather, by contrast, imposes significant costs upon the system.

read more: Why summary judgment is unconstitutional

Judge Du

judge miranda du,

Judicial Sodomy: Why summary judgment is unconstitutional

Featured

THE CASE OF THE PEOPLE VERSUS SUMMARY JUDGMENT

Prof. Suja Thomas knows how to start a story with a riveting lead:

Gavel_flickr_383476178_8fe0f5e767Summary judgment is unconstitutional.

Say what?

That’s the first sentence of her article, “Why Summary Judgment Is Unconstitutional,” about to be published in the Virginia Law Review and available for download at SSRN.  She knows you’ll be skeptical:

I understand that this assertion will face resistance from many. The procedure is well-entrenched in our federal courts through its ubiquity and lengthy history. Nevertheless, I will show that summary judgment fails to preserve a civil litigant’s right to a jury trial under the Seventh Amendment.

Summary judgment means no jury

I have a few intrepid readers whose work has nothing to do with law, and a few more who haven’t thought about civil procedure since law school, so let’s be sure we’re on the same page.  Summary judgment means you skip the jury and decide a civil lawsuit “on the papers.”  If the judge rules that the undisputed facts lead to only one legal conclusion, the case is over — without a jury trial.  A common example is an explicit contract.  If I lend you money, you sign a promissory note, and you don’t pay, the judge will usually tell me I win the case “as a matter of law,” since there is nothing a jury could say that would take you off the hook.

To a business litigator like me, rethinking summary judgment is like rethinking breathing.  We have never considered what we would do without it.  As Prof. Thomas notes, summary judgment is a a fixture of civil practice:

A large number of civil cases do not move beyond discovery without at least one motion for summary judgment from the defendant.  . . .  Indeed, the extensive use of summary judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in the federal courts.

But unconstitutional?

I always thought the Supreme Court liked summary judgment, too.  In our motions, civil lawyers always cite Celotex Corp. v. Catrett, 477 U.S. 317, which in 1986 formed part of a well-known trilogy of Supreme Court opinions addressing summary judgment:

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed “to secure the just, speedy and inexpensive determination of every action.”  . . . [The summary judgment rule] must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

(Emphasis added, as we always do.)  Prof. Thomas points out there is actually data showing how much we love this quote; she cites Adam N. Steinman, The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy, 63 Wash. & Lee L. Rev. 81, 82, 86–88, 143–44 (2006) (SSRN download here) as “presenting data that demonstrates that federal courts cite the trilogy of cases on summary judgment more often than any other cases.”

Prof. Thomas reviews the Supreme Court’s summary judgment cases and argues that the court has never specifically decided whether summary judgment denies the constitutional right to jury trial.  Since the question is unresolved, she argues, we should now resolve it, and eliminate summary judgment.  She argues here — as she did in an earlier article, “Judicial Modesty And The Jury,” SSRN download here — that summary judgment shifts the balance of power from juries, where she thinks it should be, to judges, where she thinks it shouldn’t.

Practical questions

There are going to be questions, of course.  Some are practical.  Prof. Thomas draws a line, for example, between constitutionally acceptable motions to dismiss, where the facts are fixed because the complaint is taken as true, and unconstitutional motions for summary judgment, where the judge decides what a jury could reasonably infer from agreed facts.  In practice, the distinction is not so clean.  If I’m suing on a promissory note and the defendant files a mushy denial, the motion I need to file is for summary judgment, even though the facts and all inferences from them are fixed.

Then there’s the very practical question of what would happen to civil lawsuits if every disputed case went to a jury.  Prof. Thomas suggests that many more cases would settle, and that seems certain.  It’s likely too that many more cases would be diverted to arbitration, as banks, utility companies, and other businesses started writing arbitration clauses into their contracts.

What about the legislature?

Since summary judgment probably won’t be outlawed any time soon, though, the conceptual questions are more interesting than the practical ones.  What is the proper role of juries in our legal system?

Prof. Thomas is making a choice between judges and juries, but judges and juries are not the only pieces on the board.  The change she proposes would change the legislature’s role as well.  Many lawsuits are based on statutes that are dramatically counterintuitive.  Many patent cases, for example, have this fact pattern:  the defendant did in fact copy the plaintiff’s product, but changed it, so that the defendant’s product does not include all the features listed in the patent’s “claims.”  Patent law says that plaintiff loses, without question.  But copying your neighbor’s work is something jurors have learned from kindergarten is wrong, and it’s a difficult statute for them to enforce.  In  cases like that, summary judgment is an important tool in making sure the legislature gets what it wanted.

A consistent approach

Whether you agree or disagree with Prof. Thomas, it’s worth a minute to admire the consistency of her argument.  Much of the talk about the role of juries seems to focus more on the ends than the underlying ideas.  Thus for example the libertarian Cato Institute argues here against excessive punitive damages, but here for jury nullification.  At the level of principle, they’re the same thing.  When you give jurors more power, they may use it to nullify the jury instructions or multiply the punitive damages, but either way they’re using the power you gave them.  Prof. Thomas’s paper embraces that; it’s an argument for greater jury power, whereever it may lead.  For that and for its audacity, it’s a cogent addition to the ongoing conversation on this topic.

Back to voir dire questions

What does all this mean to a trial lawyer?  The world of academic discussion and the politics of juries can look very distant from our desks.  Some lawyers are routinely on the same side of an issue, and have a policy view to match; personal injury plaintiffs’ lawyers, for example, tend to oppose restrictions on punitive-damages awards.  In a business practice, on the other hand, we can easily represent — and our clients can easily be — plaintiffs in one case and defendants in another.  We don’t tend to talk about the role-of-the-jury debate around the coffee machine.

Even for the most opinionated lawyer, though, the politics fall away when jury selection begins.  It’s this jury, these witnesses, this judge, these lawyers, these issues, this day, and trying to get a sense of how it will all work together.

In that moment, the only politics that matter are the jurors’.  Are there jurors on the panel who feel strongly about the role of the jury?  Have they read about this issue?  Have they read anything to prepare for their job as a juror?  (You’re looking for something like the Fully Informed Jury Association’s Juror’s Handbook, which urges jurors to exercise independent power.)  Are they aware there are materials like that out there?  Can they agree to take their instruction from the judge, and not what they’ve read?  What groups do they feel associated with, or what groups’ publications do they follow?  (You want to know that for a hundred reasons, but here, you’re looking for groups who advocate as to either punitive damages or jury nullification.)  In most courts you need to make these questions very open-ended, or the judge will call it argument and shut you down.  But ask.

____________________

Related notes and sources:

1.  Eric Turkewitz’s post yesterday on New York Personal Injury Attorney Blog reminds us not to stereotype juries’ orjudge’s decisionmaking.  It’s so pithy it’s practically a haiku.

2.  For more on the conceptual relationship of punitive damages and nullification, a good article is Wenger and Hoffman, “Nullificatory Juries,” published in the Wisconsin Law Journal in 2004 and also here.  Wenger and Hoffman argue that “some kinds of damages have much in common with nullification,” and they collect references to several scholars who “have noted potential conceptual links between jury nullification and punitive damages.”

3.  For the future of this issue, keep an eye on Tellabs v. Makor Issues & Rights, to be argued before the Supreme Court on March 28.  SCOTUSblog describes the issue as the trial court’s “power to draw inferences in considering dismissal of securities fraud lawsuits.”

judge john tatroWHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL

By Suja A. Thomas∗

Summary  judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court.

This Essay is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” The Supreme Court has held that “common law” in the Seventh Amendment refers to the English common law in 1791.

read more: Why summary judgment is unconstitutional