Richard L. Jolly, Valerie P. Hans & Robert S. Peck
This white paper examines the civil jury as a pivotal institution in the United States’ social and constitutional structure since the founding. The Seventh Amendment of the U.S. Constitution and similar provisions in state constitutions protect the rights of litigants to rely upon juries to resolve most legal civil disputes. This liberty is deserving of this type of foundational protection because it ensures a significant degree of popular control over the application and development of the law. Yet, legal, political, and practical attacks and challenges over time have hollowed the constitutional promise and role of the civil jury. As noted in the white paper, these challenges include: procedural changes stripping juries of their authority, campaigns to denigrate the role of juries, and COVID-19’s unique constraints on the empaneling and use of civil juries. The result is a tragic loss of the demonstrable sociopolitical benefits of jury service. The white paper concludes that much is risked if the attacks on the civil jury continue and if efforts are not taken to reverse the damage already done. Reforms for reviving the institution should be focused on removing barriers to jury access and enhancing fair and accurate jury fact-finding.
Brian M. Murray, Jon B. Gould & Paul Heaton
This white paper considers the soundness of the doctrine of absolute immunity as it relates to Brady violations. While absolute immunity serves to protect prosecutors from civil liability for good-faith efforts to act appropriately in their official capacity, current immunity doctrine also creates a potentially large class of injury victims—those who are subjected to wrongful imprisonment due to Brady violations—with no access to justice. Moreover, by removing prosecutors from the incentive-shaping forces of the tort system that are thought in other contexts to promote safety, absolute immunity doctrine may under-incentivize prosecutorial compliance with constitutional and statutory requirements and increase criminal justice system error.
The paper seeks to identify ways to use the civil justice system to promote prosecutorial compliance with Brady, while recognizing the need to provide appropriate civil protections to enable prosecutors to fulfill their unique role within the criminal justice system. After developing a novel taxonomy of Brady cases and considering the prosecutorial community’s views regarding appropriate Brady remedies, it proposes a statutory modification of absolute immunity that might better regulate and incentivize prosecutor behavior, reduce wrongful convictions, and improve access to justice.
NICHOLAS M. PACE, BETHANY SAUNDERS-MEDINA, JAMIE MORIKAWA, ANNE BLOOM & SANJANA MANJESHWAR
On October 1, 2020, the RAND Institute for Civil Justice and the UC Berkeley Civil Justice Research Initiative brought together a distinguished group of jurists, practicing attorneys, and academics to discuss the implications of the COVID-19 pandemic on the courts. Supported by a generous grant from the American Association for Justice Robert L. Habush Endowment, the virtual conference consisted of four panels, each of which explored a different topic related to the impact of COVID-19. This white paper provides an introduction to the issues and an edited transcript of the symposium proceedings.
STEPHEN B. BURBANK & SEAN FARHANG
April 2020 - The Federal Rules of Civil Procedure effectively determine access to court and likelihood of success in court for those seeking to enforce federal rights through litigation. This white paper focuses on the Advisory Committee on Civil Rules, which has primary responsibility for drafting the Federal Rules, under Chief Justice Warren Burger and his successors. Published by The Civil Justice Research Initiative, a Project of UC Berkeley School of Law.
ALEXANDRA D. LAHAV & PETER SIEGELMAN
January 2019 - Plaintiffs Falling Win Rate and the Rule of Law. Published by The Civil Justice Research Initiative, a Project of UC Berkeley School of Law.