federal diversity case if all opposing parties live in separate states and the amount in controversy exceeds $75,000. If the opposing parties live in the same state, the case may still qualify for federal subject matter jurisdiction if there is some remaining citizenship diversity between parties. For example, assume that a person is acting as a stakeholder by holding property for a third party. If ownership of the property is in dispute, the stakeholder may join the defen- dants in the suit to avoid liability to any of the parties. Such a case may be filed in federal court if a defendant lives in a different state, even if one of the defendants lives in the same state as the stakeholder or in the same state as the other defendants. State and Federal Criminal Court Jurisdiction Personal Jurisdiction Personal jurisdiction in a criminal case is established when the defen- dant is accused of committing a crime in the geographic area in which the court sits. If a crime results in federal charges, the federal court that sits in the state where the offense was committed has personal jurisdiction over the defendant. In a conspiracy case, the defendants may face prosecution in any jurisdiction in which a conspiratorial act took place. This can include a number of states if at least one conspirator crossed state lines or if the conspir- acy involved criminal acts in more than one state. KIDNAPPING is another crime that can establish personal jurisdiction in courts in more than one state, if it involves crossing state lines. Subject Matter Jurisdiction In criminal cases, the question of jurisdiction is relatively simple. Subject matter jurisdiction is easily decided because criminal courts or the courts of general jurisdiction have automatic subject matter jurisdiction over criminal cases. In most states, minor crimes may be tried in one court, and more serious crimes in another. In Idaho, for example, criminal cases are tried in the district courts. However, MISDEMEANOR cases may be assigned by the district court to a magistrate (Idaho Code § 1-2208 [1996]). (A magistrate is a judge who is authorized to hear minor civil cases and to decide criminal matters without a jury.) The major question in criminal subject matter jurisdiction is whether the charges are pursuant to federal or state law. If the charges allege a violation of federal CRIMINAL LAW,the defendant will be tried in a federal court that is located in the state in which the offense was committed. If the charges allege a violation of state law, the defendant will face prosecution in a trial court that has jurisdiction over the area in which the offense was committed. If a crime violates both federal and state law, the defen- dant may be tried twice: once in state court, and once in federal court. Venue Venue is similar to, but separate from, jurisdic- tion. The venue of a case is the physical location of the courthouse in which the case is tried. If more than one court has both subject matter and personal jurisdiction over a case, the court that first receives the case can send the case, upon request of one of the parties, to a court in another jurisdiction. Unlike jurisdiction, venue does not involve a determination of a court ’s inherent authority to hear a case. FURTHER READINGS Meslar, Roger W., ed. 1990. Legalines Civil Procedure. 3d ed. Chicago, Ill.: Harcourt Brace Jovanovich Legal and Professional Publications. Wildasin, Mark H., and Richard A. Jones. 2001. “Internet Jurisdiction.” Journal of Internet Law December. CROSS REFERENCE Diversity of Citizenship. JURISDICTIONAL DISPUTE Conflicting claims made by two different labor unions to an employer regarding assignment of the work or union representation. Two basic types of controversies ordinarily arise in such disputes. There can be a disagree- ment concerning whether certain work should be done by workers in one union or another. For example, there might be a dispute between employees in a carpenters’ union and a glaziers’ union concerning who should install frames for windows in an apartment building. When this type of dispute arises, there must exist evidence of a threat of coercive action in order for the NATIONAL LABOR RELATIONS BOARD (NLRB) to intervene by conducting a hearing and making an assignment of the work. A JURISDICTIONAL DISPUTE might also arise concerning which union should represent employees who are performing a particular type of work. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 88 JURISDICTIONAL DISPUTE JURISPRUDENCE From the Latin term juris prudentia, which means “the study, knowledge, or science of law”; in the United States, more broadly asso ciated with the philosophy of law. Legal philosophy has many branches, with four types being the most common. The most prevalent form of jurisprudence seeks to ana- lyze, explain, classify, and criticize entire bodies of law, ranging from contract to tort to CONSTITUTIONAL LAW. Legal encyclopedias, law reviews, and law school textbooks frequently contain this type of jurisprudential scholarship. The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, RELIGION, and the social sciences. The purpose of this type of study is to enlighten each field of knowledge by sharing insights that have proven to be impor- tant in advancing essential features of the compared discipline. The third type of jurisprudence raises fundamental questions about the law itself. These questions seek to reveal the historical, moral, and cultural underpinnings of a particular legal concept. The Common Law (1881), written by OLIVER WENDELL HOLMES JR., is a well-known example of this type of jurisprudence. It traces the evolution of civil and criminal responsibility from undeveloped societies where liability for injuries was based on subjective notions of revenge, to modern societies where liability is based on objective notions of reasonableness. The fourth and fastest-growing body of jurisprudence focuses on even more abstract questions, including, What is law? How does a trial or appellate court judge decide a case? Is a judge similar to a mathematician or a scientist applying autonomous and determinate rules and principles? Or is a judge more like a legislator who simply decides a case in favor of the most politically preferable outcome? Must a judge base a decision only on the written rules and regulations that have been enacted by the government? Or may a judge also be influenced by unwritten principles derived from theology, moral philosophy, and historical practice? Four schools of jurisprudence have att- empted to answer these questions: Formalism proposes that law is a science; realism holds that law is just another name for politics; positivism suggests that law must be confined to the written rules and regulations enacted or recognized by the government; and naturalism maintains that the law must reflect eternal principles of justice and morality that exist independent of govern- mental recognition. Modern U.S. legal thought began in 1870. In that year, Holmes, the father of the U.S. legal realist movement, wrote his first major essay for the American Law Review , and CHRISTOPHER COLUMBUS LANGDELL , the father of U.S. legal formalism, joined the faculty at Harvard Law School. Formalism Legal formalism, also known as conceptualism, treats law like a math or science. Formalists believe that in the same way a mathematician or scientist identifies the relevant axioms, appli es them to given data, and systematically reaches a demonstrable theorem, a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of a dispute. Judges derive relevant legal principles from various sources of legal authority, including state and federal constitutions, statutes, regulations, and CASE LAW. For example, most states have enacted legislation that prohibits courts from probating a will that was not signed by two witnes ses. If a court is presented with a number of wills to probate for the same estate, and only one of those wills has been witnessed by at least two persons, the court can quickly deduce the correct legal conclusion in a formalistic fashion: Each will that has been signed by fewer than two witnesses will have no legal effect, and only the will executed in compliance with the statutory requirements may be probated. Formalists also rely on inductive reasoning to settle legal disputes. Whereas deductive reason- ing involves the application of general principles that will yield a specific rule when applied to the facts of a case, inductive reasoning starts with a number of specific rules and infers from them a broader legal principle that may be applied to comparable legal disputes in the future. GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), provides an example. In Griswold, the Supreme Court ruled that although no express provision of the federal Constitution guarantees the right to privacy, and although no precedent had estab- lished such a right, an individual’s right to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JURISPRUDENCE 89 privacy can be inferred from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amend- ments and the cases interpreting them. English jurist SIR EDWARD COKE was among the first to popularize the formalistic approach to law in Anglo-American history. Coke be- lieved that the common law was “the pec uliar science of judges.” The common law, Coke said, represented the “artificial perfection of reason” obtained through “long study, observation, and experience.” Coke also believed that only lawyers, judges, and others trained in the law could fully comprehend and apply this highest method of reasoning. The rest of society, including the king or queen of England, was not sufficiently learned to do so. Langdell invigorated Coke’s jurisprudence of artificial reason in the United States during the second half of the nineteenth century. Langdell compared the study of law to the study of science, and suggested that law school class- rooms were the laboratories of jurisprudence. Judicial reasoning, Langdell believed, parallels the reasoning used in geometric proofs. He urged professors of law to classify and arrange legal principles much as a taxonomist organizes plant and animal life. Langdell articulated what has remained the orthodox school of thought in U.S. jurisprudence throughout the twentieth century. Since the early 1970s Professor RONALD M. DWORKIN has been the foremost advocate of the formalist approach with some subtle variations. Although Dworkin stops short of explicitly comparing law to science and math, he main- tains that law is best explained as a rational and cohesive system of principles that judges must apply with integrity. The principle of integrity requires that judges provide equal treatment to all litigants presenting legal claims that cannot honestly be distinguished. Application of this principle, Dworkin contends, will produce a “right answer” in all cases, even cases present ing knotty and polemical political questions. Realism The realist movement, which began in the late eighteenth century and gained force during the administration of President FRANKLIN D. ROOSEVELT, was the first to attack formalism. Realists held a skeptical attitude toward Langdellian legal sci- ence. “The life of the law has not been logic, it has b een experience,” Holmes wrote in 1881. Realists held two things to be true. First, t hey believed that law is not a scientific enterprise in which deductive reasoning can be applied to reach a determinate outcome in every case. Instead, most litigation presents hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute. This line is typically drawn in accordance w ith the political, economic, and psychological proclivi- ties of the judge. For example, when a court is asked to decide whether a harmful business activity is a common-law nuisance, the judge must ascertain whether the particular activity is reasonable. The judge does not base this determination on a precise algebraic equation. Instead, the judge balances the competing economic and social interests of the parties, and rules in favor of the litigant with the most persuasive case. Realists would thus contend that judges who are ideologically inclined to foster business growth will authorize the continuation of a harmful activity, whereas judges who are ideologically inclined to protect the environment will not. Second, realists believed that because judges decide cases based on their political affiliation, the law tends always to lag behind social change. For example, the realists of the late nineteenth century saw a dramatic rise in the disparity between the wealth and working conditions of rich and poor U.S. citizens following the industrial revolution. To protect society’s poorest and weakest members, many states began drafting legislation that established a MINIMUM WAGE and maximum working hours for various classes of exploited workers. This legislation was part of the U.S. Progressive movem ent, which reflected many of the realists’ concerns. The Supreme Court began striking down such laws as an unconstitutional interference with the freedom of contract guaranteed by the FOURTEENTH AMENDMENT of the U.S. Constitution. U.S. realists claimed that the Supreme Court justices were simply using the freedom-of- contract doctrine to hide the real basis of their decision, which was their personal adherence to free-market principles and laissez-faire econom- ics. The realists argued that the free-market system was not really free at all. They believed that the economic structure of the United States was based on coercive laws such as the EMPLOYMENT-AT-WILL doctrine, which permits an GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 90 JURISPRUDENCE employer to discharge an employee for almost any reason. These laws, the realists asserted, promote the interests of the most powerful U.S. citizens, leaving the rest of society to fend for itself. Some realists only sought to demonstrate that law is neither autonom ous, apolitical, nor determinate. For example, JEROME FRANK,who coined the term LEGAL REALISM and later became a judge on the U.S. Court of Appeals for the Second Circuit, emphasized the psychological foundation of judicial decision making, arguing that a judge’s decision may be influenced by mundane things like what he or she ate for breakfast. Frank believed that it is deceptive for the legal profession to perpetuate the myth that the law is clearly knowable or precisely predict- able, when it is so plastic and mutable. KARL LLEWELLYN , another founder of the U.S. legal realism movement, similarly believed that the law is little more than putty in the hands of a judge who is able to shape the outcome of a case based on personal biases. Since the mid-1960s this theme has been echoed by the CRITICAL LEGAL STUDIES movement, which has applied the skeptical insights of the realists to attack courts for rendering decisions based on racial, sexist, and homophobic pre- judices. For example, feminist legal scholars have pilloried the Supreme Court’s decision in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), for offering women less protection against governmental discrimination than is afforded members of other minority groups. Gay legal scholars similarly assailed the Supreme Court’s decision in Bowers v. Hard- wick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), for failing to recognize a fundamen- tal constitutional right to engage in homosexual SODOMY. The Supreme Court’s 2003 decision in LAWRENCE V. TEXAS 539 U.S. ___, 123 S. Ct. 2472, 156 L. Ed. 2d 508, that overturned the Bowers holding was a vindication for gay rights jurisprudence. Other realists, such as ROSCOE POUND, were more interested in using the insights of their movement to reform the law. Pound was one of the original advocates of sociological jurispru- dence in the Unite d States. According to Pound, the aim of every law—whether constitutional, statutory, or case—should be to enhance the welfare of society. JEREMY BENTHAM, a legal philosopher in England, planted the seeds of sociological jurisprudence in the eighteenth century when he argued that the law must seek to achieve the greatest good for the greatest number of people in society. Bentham’s theory, known as utilitarianism, continues to influence legal thinkers in the United States. Law and economics is one school of thought that traces its lineage to Benthamite jurispru- dence. This school, also known as economic analysis of the law, argues that judges must decide cases in order to maximize the wealth of society. According to law and economics expo- nents, such as RICHARD POSNER, each person in society is a rational maximizer of his or her own self-interest. Persons who rationally maximize their self-interest are willing to exchange some- thing they value less for something they value more. For example, every day in the United States, people voluntarily give up their time, money, and liberty to acquire food, property, or peace of mind. This school of thought contends that the law must facilitate these voluntary exchanges to maximize the aggregate wealth of society. Another school of thought Bentham influ- enced is known as legal pragmatism. Unlike law and economics exponents, legal pragmatists provide no formula for determining the best means to improve the welfare of society. Instead, pragmatists contend that judges must merely set a goal that they hope to achieve in resolving a particular legal dispute, such as the preservation of societal stability, the protection of individual rights, or the delineation of governmental powers and responsibilities. Judges must then draft the best court order to accomplish this goal. Pragmatists maintain that judges must choose the appropriate societal goal by weighing the value of competing interests presented by a lawsuit, and then using a “grab bag” of “anecdote, introspection, imagination, common sense, empathy, metaphor, analogy, precedent, custom, memory, experience, intui- tion, and induction” to reach the appropriate balance (Posner 1990, 73). Pragmatism, sometimes called instrumen- talism, is best exemplified by Justice Holmes’s statement that courts “decide cases first, and determine the principle afterwards.” This school of thought is associated with result-oriented jurisprudence, which focuses more on the con- sequences of a judicial decision than on how the relevant legal principles should be applied. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JURISPRUDENCE 91 The Realist-Formalist Debate The realist-formalist dichotomy represents only half of the jurisprudential picture in the United States. The other half comprises a dialogue between the positivist and natural-law schools of thought. This dialogue revolves around the classic debate over the appropriate sources of law. Positivists maintain that the only appropri- ate sources of law are rules and principles that have been expressly enacted or recognized by a governmental entity, like a state or federal legislature, administrative body, or court of law. These rules and principles may be properly considered law, positivists contend, because individuals may be held liable for disobeying them. Positivists believe that other sources for determining right and wrong, such as religion and contemporary morality, are only aspira- tional, and may not be legitimately consulted by judges when rendering a decision. Natural-law proponents, or naturalists, agree that governmental rules and regulations are a legitimate source of law, but assert that they are not the only source. Naturalists believe that the law must be informed by eternal principles that existed before the formation of government and are independent of govern- mental recognition. Depending on the particu- lar strain of natural law, these principles may be derived from theology, moral philosophy, human reason, historical practice, and individ- ual conscience. The dialogue between positivists and nat- uralists has a long history. For many centuries, historians, theologians, and philosophers distin- guished positivism from naturalism by separating written law from UNWRITTEN LAW. For example, the Ten Commandments were inscribed on stone tablets, as were many of the laws of the ancient Greeks. Roman Emperor Justinian I (a.d. 482–565) red uced most of his country’s laws to a voluminous written code. At the same time, Christian, Greek, and Roman thinkers all appealed to a higher law that transc ended the written law promulgated by human beings. Prior to the American Revolution, English philosophers continued this debate along the same lines. English political thinkers JOHN AUSTIN and THOMAS HOBBES were strict positivists who believed that the only authority courts should recognize are the commands of the sovereign because only the sovereign is entrusted with the power to back up a command with military and poli ce force. First intimated by Italian philosopher Niccolò Machiavelli, the “sovereign command” theory of law has been equated in the United States with the idea that might makes right. Contrasted with the writings of Hobbe s and Austin were the writings of JOHN LOCKE in England and THOMAS JEFFERSON in America. In his Second Treatise on Government (1690), Locke established the idea that all people are born with the inalienable right to life, liberty, and pro- perty. Locke ’s ruminations about individual rights that humans possess in the state of nature prior to the creation of government foresha- dowed Jefferson’s DECLARATION OF INDEPENDENCE. In 1776, the Declaration of Independence announced the self-evident truth that “all men are created equal” and are “endowed by their Creator with certain inalienable Rights,” includ- ing the right to “Life, Liberty and the pursuit of Happiness.” Both positivism and naturalism have had an enormous influence on how U.S. citizens think about law. The institution of African American SLAVERY, which w as recognized by the U.S. Constitution and legalized by legislation passed in the South prior to the Civil War (1861–65), was attacked by abolitionists who relied on higher-law principles of religion and conscience to challenge the moral foundations of human bondage. Following WORLD WAR II, the Allied powers successfully prosecuted German govern- ment officials, industrialists, and military leaders in Nuremberg for committing GENOCIDE against European Jewry, even though the Nazi regime had passed laws authorizing such extermination. The Allies relied in part on the natural-law principle that human dignity is an inviolable right that no government may vitiate by written law. Historical Jurisprudence Positivists and naturalists tend to converge in the area of historical jurisprudence. Historical jurisprudence is marked by judges who consider history, tradition, and custom when deciding a legal dispute. Stric tly speaking, history does not completely fall within the definition of either positivism or natural law. Historical events, such as the Civil War, are not legislative enactments, although they may be the product of governmental policy. Nor do historical events embody eternal principles of morality, although they may be the product of clashing moral views. Yet, histori cal events shape both morality GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 92 JURISPRUDENCE and law. Thus, many positivists and naturalists find a place for historical jurisprudence in their legal philosophy. For example , Justice Holmes was considered a positivist to the extent that he believed that courts should defer to legislative judgment unless a particular statute clearly violates an express provision of the Constitution. But he qualified this stance when a given statute “infringe[s] on fundamental principles as they have been understood by the traditions of our people and our law” ( LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]). In such instances, Holmes felt, courts were justi- fied in striking down a particular written law. BENJAMIN N. CARDOZO, considered an adherent of sociological jurisprudence by some and a realist by others, was another Supreme Court justice who incorporated history into his legal philosophy. When evaluating the merits of a claim brought under the Due Process Clauses of the Fifth and Fourteenth Amendments, Cardozo denied relief to claims that were not “implicit in the concept of ordered liberty” and the “principle[s] of justice [that are] so rooted in the traditions and conscience of our people as to be ranked as fundamental” (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937]). Contemporary Thought Each school of jurisprudence is not a self- contained body of thought. The lines separating positivism from realism and natural law from formalism often become blurry. The legal philos- ophy of Justice Holmes, for example, borrowed from the realist, positivist, pragmatic, and his- torical strains of thought. In this regard, some scholars have observed that it is more appropriate to think of jurispru- dence as a spectrum of legal thought, where the nuances of one thinker delicately blend with those of the next. For example, Harold Berman, a leading authority on comparative LEGAL HISTORY , has advocated the development of an integrative jurisprudence, which would assimilate into one philosophy the insights from each school of legal theory. The staying power of any body of legal thought, Berman has suggested, lies not in its name but in its ability to explain the enterprise of law. FURTHER READINGS Dworkin, Ronald M. 1978. Taking Rights Seriously. Cam- bridge, MA: Harvard Univ. Press. Grey, Thomas C. 1983. “Langdell’s Orthodoxy.” Univ. of Pittsburgh Law Review 45. Hayman, Robert L., Jr., Nancy Levit, and Richard Delgado, eds. 2002. Jurisprudence: Classical and Contemporary: From Natural Law to Postmodernism. 2d ed. Eagan, MN: West. Holmes, Oliver Wendell, Jr. 2009. The Common Law. Cambridge, MA: Belknap. Horwitz, Morton J. 1994. The Transformation of American Law: 1870–1960. New York: Oxford Univ. Press. Llewellyn, Karl N. 2000. Jurisprudence: Realism in Theory and Practice. Clark, NJ: Lawbook Exchange. Michael, Helen. 1991. “The Role of Natural Law in Early American Constitutionalism: Did the Founders Con- template Judicial Enforcement of ‘Unwritten’ Individu- al Rights?” North Carolina Law Review 69. Patterson, Dennis M. 2003. Philosophy of Law and Legal Theory. Malden, MA: Wiley-Blackwell. Posner, Richard A. 2004. Frontiers of Legal Theory. Cam- bridge, MA: Harvard Univ. Press. Smith, Steven D. 2001. “Expressivist Jurisprudence and the Depletion of Meaning.” Maryland Law Review 60 (summer). ———. 1993. Problems of Jurisprudence. Cambridge, MA: Harvard Univ. Press. Stoner, James. 1992. Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism. Lawrence: Univ. Press of Kansas. Terry, Douglas A. 2002. “Don’t Forget about Reciprocal Altruism: Critical Review of the Evolutionary Jurispru- dence Movement.” Connecticut Law Review 34 (winter). CROSS REFERENCES Anarchism; Chicago School; Feminist Jurisprudence; Gay and Lesbian Rights; Judicial Review; Law; Legal Education; Legal History; Nuremberg Trials; Roman Law; Socialism. JURIST A judge or legal scholar; an individual who is versed or skilled in law. The term jurist is ordinarily applied to individuals who have gained respect and recog- nition by their writings on legal topics. JURISTIC ACT An action intended and capable of having a legal effect; any conduct by a private individual designed to originate, terminate, or alter a right. A court performs a JURISTIC ACT when it makes a decision and hands down a judgment. An individual who enters into a contractual agree- ment is also performing a juristic act because of the legal ramifications of his or her agreement. JURY In trials, a group of people who are selected and sworn to inquire into matters of fact and to reach a verdict on the basis of the evidence presented to them. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JURY 93 In U.S. law, decisions in many civil and criminal trials are made by a jury. Considerable power is vested in this traditional body of ordinary men and women, who are charged with deciding matters of fact and delivering a VERDICT of guilt or innocence based on the evidence in a case. Derived from its historical counterpart in English common law, trial by jury has had a central role in U.S. courtrooms since the colonial era, and it is firmly established as a basic guarantee in the U.S. Constitution. Modern juries are the result of a long series of U.S. Supreme Court decisions that have inter- preted this constitutional liberty and, in signifi- cant ways, extended it. History The historical roots of the jury date to the eighth century a.d. Long before becoming an impartial body, during the reign of Charlemagne juries interrogated prisoners. In the twelfth century, the Normans brought the jury to England, where its accusatory function remained: Citizens acting as jurors were required to come forward as witnesses and to give evidence before the monarch’s judges. Not until the fourteenth century did jurors cease to be witnesses and begin to assume their modern role as triers of fact. This role was well established in British commonlawwhensettlersbroughtthetradition to America, and after the United States declared its independence, all state constitutions guaran- teed the right of jury trial in criminal cases. Viewing the jury as central to the rights of the new nation, the Founders firmly established its role in the U.S. Constitution. They saw the jury as not only a benefit to the accused, but also as a check on the judiciary, much as Congress exists as a check on the Executive Branch. The Constitution establishes and safe- guards the right to a trial by jury in four ways: Article III establishes this right in federal criminal cases; the FIFTH AMENDMENT provides for grand juries, or panels that review com- plaints in criminal cases, hear the evidence of the prosecutor, and decide whether to issue an indictment that will bring the accused person to trial; the SIXTH AMENDMENT guarantees in serious federal criminal cases the right to trial by a PETIT JURY , the most common form of jury; and the SEVENTH AMENDMENT provides for a jury trial in civil cases where the AMOUNT IN CONTROVERSY exceeds $20. The modern jury is largely a result of decisions of the U.S. Supreme Court, which has shaped and sometimes extended these constitu- tional rights. One important decision was the Court’s1968rulinginDuncan v. Louisiana,391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491, which requires states to provide for jury trials in serious criminal cases. Prior to Duncan, states had their own rules; Louisiana, for instance, required juries only in cases where the possible punishment was death or hard labor. The Court declared that the right to a jury trial is fundamental. In cases in which the punishment exceeds six months’ imprisonment, it ruled, the Due Process Clause of the FOURTEENTH AMEND- MENT requires that the protections of the Sixth Amendment apply equally to federal and state criminal prosecutions. Defendants may, under some ci rcum- stances, refuse a jury trial in favor of a trial before a judge. In 1965, the U.S. Supreme Court ruled that the constitutional right to a jury trial does not imply a related right to refuse one (Singer v. United States, 380 U.S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 630). It observed that juries are important not only to the DEFENDANT but also to the government and the public. The government, it wrote, has an interest in trying cases “before the tribunal which the Constitution regards as most likely to produce a fair result.” Thus, in federal cases, rules governing CRIMINAL PROCEDURE allow a defendant to waive a jury trial only if the government consents and the court gives its approval. States vary in their approach, with some, such as Nebraska and Minnesota, requir- ing only the court’s approval and others, such as A jury is addressed by an attorney in a court case. A jury is composed of a group of people selected to deliver the verdict in a trial. CORBIS/JUPITER IMAGES/GETTY IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 94 JURY Illinois and Louisiana, granting the defendant’s wish as long as the decision is informed. In 2002 a Jury Innovations Committee established in Florida offered no fewer than 48 jury-reform suggestions designed to make the system more efficient and user-friendly. The suggestions included requiring jury instructions to be made clearer and to allow jurors to discuss evidence as it is presented, instead of after deliberations begin. Jury Selection Jury selection is the process of choosing jurors. Not all peop le are required to serve on the jury: Some individuals and members of some occupa- tional groups may be excused if serving would cause them or their family hardship. The U.S. Supreme Court has held that the Sixth Amend- ment merely requires thatjurors be selected from a list that does not exclude any identifiable segment of the community (Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 [1975]). Federal courts select grand and petit juries according to the guidelines in the Jury Selection and Service Act of 1968 (28 U.S.C.A. §§ 1861– 78 [2000]). Generally, most communities use voter-registration lists to choose prospective jurors, who are then summ oned to appear for jury duty. This group of prospective jurors is called a venire. Once the venire is assembled, attorneys for both the prosecution and the DEFENSE begin a process called voir dire. Literally meaning “to speak the truth,” voir dire is a preliminary examination of the prospective jurors, in order to inquire into their competence and suitability to sit on the jury. Although the judge may ask questions, it is primarily the attorneys who do so. Their goal is to eliminate jurors who may be biased against their side, while choosing the jurors who are most likely to be sympathetic. Attorneys for each side are allowed to reject potential jurors in two ways. They may dismiss anyone for cause, meaning a reason that is relevant to that person’s ability and fitness to perform jury duty. And they may issue a limited number of peremptory challenges, which are dismissals that do not require a reason. The process of voir dire—especially in the exercise of peremptory challenges to custom Minnesota’sApproachto a More Diverse Jury Pool M B any urban areas have encountered difficul- ties in providing racially and economically diverse jury pools. Critics of the criminal justice system point out that people o f color are overrep- resented in the number of individuals arrested, prosecuted, and imprisoned, and underrepresen ted on c riminal juries. In 1993 the Minnesota Supreme Court Task Force on Racial Bias in the Judicial System issued a report that called for changes in jury management, so as to encourage diversity in juries. The judicial system took several steps to respond to the report. The Minnesota Supreme Court amended jury management rules to authorize Hennepin and Ramsey Counties, the most populous and racially diverse counties in the state, to adopt new jury selection procedures that guarantee that, by percentage, minority group representation on the grand jury is equal to that in the two counties. Hennepin County implemented a plan that allows grand jurors to be selected randomly unless there are no people of color among the first 21 jurors selected, in which case the selection process continues until at least t wo of the 23 grand jurors are peopl e of color. At the state level, the judicial system secured funds from the legislature to raise the rate of daily juror pay and to pay for drop-in day care for jurors who normally do not use day care. The system also begantoreimbursejurorsfortheirmileagetoand from the courthouse. These steps were taken to decrease the economic hardship on potential jurors who might otherwise ignore a jury summons or ask to be excused. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JURY 95 design a jury—has provoked controversy. Defendants may challenge a venire, alleging discrimination, but such complaints are difficult to prove. Thus, critics of the selection proc ess have argued that it skews the composition of juries according to race, class, and gender. In 1990, the U.S. Supreme Court held that juries need not represent a cross section of a com- munity, but merely must be drawn from a pool that is representative of the community (Hol- land v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905). In 1991, it forbade prosecutors to use their peremptory challenges to exclude potential jurors on the basis of race (Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411). In 1999, the Supreme Court of Con- necticut ruled that prospective jurors could not be dismissed solely on account of their religious beliefs, except when those beliefs would keep them from performing their duties on the jury (State v. Hodge, 726 A.2d 531 [Conn. 1999]). Along with other complaints—on issues rang- ing from efficiency to fairness—the decisions provided advocates of jury reform with further ammunition for their efforts to change funda- mentally, and even to eliminate, juries. Jury Size Juries range in size according to their nature. Grand juries are so named because they are usually larger than petit juries, having from 12 to 23 members. Traditionally, petit juries have had 23 members, but the number is not fixed. In 1970 the U.S. Supreme Court held that the number 12 was not an essential element of trial by jury (Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446), and it has sanctioned juries of no fewer than six members in criminal cases (Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 [1978]). Parties in federal district courts, as well as in many state courts, can stipulate that the jury size be any number Should the Peremptory Challenge Be Abolished? A PEREMPTORY CHALLENGE permits a party to remove a prospective juror without giving a reason for the removal. This type of challenge has had a long history in U.S. law and has been viewed as a way to ensure an impartial jury. However, use of the peremptory challenge changed as a result of the U.S. Supreme Court decision in Batson v. Kentucky,476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and its progeny, and the changes have led some lawyers and legal commen- tators to call for its abolition. They argue that these Court decisions have deprived lawyers of their absolute discretion inusing the challenges and have turned peremptory challenges into challenges for cause. Defen- ders of the peremptory challenge believe that the new race, gender, and religious affiliation requirements initiated by Batson simply ensure that jurors will not be excluded on the basis of stereotypes. Those who favor retention of the peremptory challenge point to its four purposes: The peremptory challenge allows litigants to secure a fair and impartial jury. It gives the parties some control over the jury selection process. It allows an attorney to search for biases during the selection process without fear of alienating a potential juror. If, for example, a juror appears offended by the nature of the questioning, that juror can be excluded even if the answers she gives do not demonstrate bias. Finally, the peremptory challenge serves as an insur- ance policy when a challenge for cause is denied by the judge and the challenging party still believes that the juror is biased. Defenders of the peremptory chal- lenge contend that the limitations im- posed by the Supreme Court have not substantially impaired the use of the challenge. As a result of Batson,a peremptory challenge can be questioned by the opposite side if that side believes that it was based solely on race or gender. The reasoning behind this change is that striking jurors on the basis of race or gender perpetuates stereotypes that were prejudicial and that were based on historical discrimination. The only way to correct this record is to allow a party to establish a PRIMA FACIE case of racial or gender discrimination. Defenders believe that to say Batson introduced race into the jury selection process is to ignore the part race has already played in the use of peremptory challenges. The other side has the opportunity to offer a nondis- criminatory reason for the challenge. The reason does not have to rise to the level of a “for-cause” challenge. It merely has to be a reasonable concern that can be articulated. Defenders of the challenge argue that this is an acceptable modifica- tion of the challenge. They also point out that other characteristics of jurors are not bound by the Batson line of cases. A peremptory challenge based on a juror’s RELIGION, age, income, occupation, or political affiliation GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 96 JURY between six and 12. Commonly, federal district court juries consist of six persons for civil cases. Jury Instructions Throughout a trial, the jury receives instruc- tions from the judge. The judge explains the relevant points of law, which the jury is bound to accept and to apply. The judge directs the jury to disregard inadmissible testimony and provides guidelines on the way to behave outside of court. During the 1995 trial of O. J. SIMPSON fo r the MURDER of his estranged second wife and a friend of hers, for example, Judge Lance Ito issued daily orders to jurors not to discuss the case with anyone. Some instructions vary across jurisdictions and accord- ing to judges, such as whether jurors will be allowed to take notes during the trial; generally, they may not. In certain highly publicized trials, the judge may sequester the jury—that is, isolate its members in private living quarters such as hotel rooms in order to shield them from trial publicity. Violating the judge’sorderscanresult in a juror being dismissed from the trial in favor of an alternate juror. Jury Verdict Following the closing arguments in a trial, jurors deliberate in private to arrive at a verdict, which is then reported to the court by the jury foreman or forewoman. Defendants in federal jury trials have the right to a unanimous verdict. This is not true in state jury trials, where the size of the jury determines whether unanimity is required: A 12-member jury may convict without una- nimity, whereas a six-member jury may not. In some cases, consensus among jurors is very difficult to reach. When jurors fail to reach an agreement, the judge may issue an instruction known as an Allen charge, in which the judge tells cannot be questioned as long as it is not a pretext for concealing race or gender bias. Therefore, argue supporters, the peremptory challenge is still a valuable tool in trial proceedings. Those who argue for the abolition of the peremptory challenge come from two camps. One camp believes that the Batson line of cases was a mistake. This group would prefer to return to unre- stricted use of the challenge but, knowing that overturning precedent is unlikely, recommends eliminating the challenge. The other camp believes that the racial, gender, and religious affiliation tests crafted by the courts are idealistic crea- tions that are easily subverted in daily courtroom practice. The reality is that allegations of bias using Batson rarely are successful. The group that believes that the changes following Batson were a mistake argues that the whole point of the peremptory challenge is that it is made totally within the discretion of the lawyer. A trial lawyer may have a gut feeling about a juror, a feeling that is difficult to articulate to a judge and does not rise to a for-cause strike. Prior to Batson acourt would allow this type of peremptory challenge. Since Batson the lawyer is required to articulate a reason. The temptation for the lawyer is to invent a “reasonable” explanation rather than risk having the peremptory challenge denied. These critics argue that the only way for a lawyer to protect a client under this new system is to interrogate prospective jurors concerning intimate, personal matters in order to create defensible grounds for striking them. Lawyers must take more notes during questioning and spend more time evaluating the answers of jurors. The selection of a jury is lengthened if this tactic is chosen, placing more pressure on an overtaxed court system. Therefore, contend these critics, it would be better to abolish peremptory challenges and try other methods of jury selection. One alternative is expanding challenges for cause, allowing lawyers to exclude prospective jurors for legitimate, articulated reasons that do not satisfy the tougher current standards of challenges for cause. The other group that questions Batson points to the difficulty of achiev- ing the racially neutral selection of a jury. Surveys have shown that motions to deny peremptory challenges because of race or gender bias are rarely made, and that when they are judges accept all types of questionable race-neutral explanations to refute them. Thinking in the legal community over this issue has led state judiciaries to reflect on the best course to take. For example, the Florida Supreme Court-appointed Jury Innovations Com- mittee issued a report in 2002 that recommended the elimination of pe- remptory challenges. FURTHER READINGS Griebat, Jeb C. 2003. “Peremptory Challenge by Blind Questionnaire: The Most Practi- cal Solution for Ending the Problem of Racial and Gender Discrimination in Kansas Courts While Preserving the Necessary Function of the Peremptory Challenge.” The Kansas Journal of Law & Public Policy 12 (winter). Jones, Barbara. 2003. “Peremptory Challenge Should Have Been Granted.” Minnesota Lawyer (July 14). Montz, Vivien Toomey, and Craig Lee Montz. 2000. “The Peremptory Challenge: Should It Still Exist? An Examination of Federal and Florida Law.” Univ. of Miami Law Review 54 (April). CROSS REFERENCE Litigation. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JURY 97 . It Still Exist? An Examination of Federal and Florida Law. ” Univ. of Miami Law Review 54 (April). CROSS REFERENCE Litigation. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JURY 97 . principles of morality, although they may be the product of clashing moral views. Yet, histori cal events shape both morality GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 92 JURISPRUDENCE and law. . assignment of the work. A JURISDICTIONAL DISPUTE might also arise concerning which union should represent employees who are performing a particular type of work. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD