Feb 11, 2010

value and criterion pairs for the jury nullification resolution

The following is a list of possible value / criterion pairs for the jury nullification resolution.

A couple questions to kickstart your thinking: Why would we have checks on government? Why do we have jury trials, anyway? Why not just have judges decide innocence or guilt?

A work in progress. Suggest your own pairs in the comments!


Trending Affirmative

V: Justice
C: Governmental Legitimacy / the Social Contract
If nullification is a "just check" on government power, it's because of the nature of government's relation to its citizens. A government that oversteps its bounds with unjust laws--even those that are initiated through democratic processes--has violated the social contract. Nullification, then, is a peaceful form of revolution. (You might compare these V/C pairs to those I wrote up for the vigilantism resolution a year ago.)

V: Democracy
C: Popular Sovereignty
At its core, the U.S. strives to be democratic. Popular sovereignty--the idea that the people rule--is the foundation of democracy. Jury nullification places power in the hands of the people, the power to declare that the law is unjust, and that the government has overreached. Combine with arguments that institutions have been corrupted or have stagnated (undue corporate influence, special interest groups, etc.) and you can be the Noam Chomsky of jury nullification.

V: Individual Rights
C: Reducing state power
Similar to the argument above: we live in an age of ever-expanding state power. The justice system in the United States is a well-oiled machine, grinding individuals to powder. Nullification jams the gears, protecting individual rights--especially of those who are unable to afford the best attorneys. (The War on Drugs makes this problem acute; see Paul Butler's Let's Get Free. for a former prosecutor's take on the practice.)



Trending Negative

V: Justice / Democracy
C: The Rule of Law / Due Process of Law
It takes only one nullifier to hang a jury trial. This has the potential to jam the gears of justice, which is one of the primary reasons juries are never instructed about the power of nullification. Furthermore, it's patently unfair and undemocratic for one person to thwart societal standards.

V: Justice
C: Deontology
Because of a little process called "voir dire," a potential nullifier is likely to have to lie--after all, no prosecutor is going to let a person who reviles the drug war stay on a jury in a drug case. But deontological ethics--especially Kant's--forbid lying, even for the sake of the good. (Here it helps to define "justice" as "moral rightness.")

V: The Rule of Law
C: Respecting legal expertise
Ordinary citizens, God bless 'em, don't understand the complexities of the law, questions of constitutionality, and the like. Although the United States has democratic aspects, it is ultimately a constitutional republic, which resists the fickle fervor of the masses. Leave legislation and judicial review to those who are not only appointed, but qualified to do them.


Going Either Way

V: Justice
C: Constitutionalism
In the United States, the Constitution, as the supreme law of the land, is the ultimate standard of justice. Is jury nullification constitutional? There's no right to it--the practice comes from common law--but it's not clearly unconstitutional, either. Essentially, the Supreme Court's few rulings on the subject say that it's a power juries have, but that jurors have no right to be told about it.

V: Societal Welfare
C: Consequentialism / Utilitarianism
If we should evaluate governmental actions--and checks on government power--in the light of their societal consequences, is jury nullification justified?

61 comments:

Ale said...

I would be cautious about using democracy as a VP. It seems admirable at first, but it works very much against minorities. A creative opponent could use that against you. Not to mention that juries don't necessarily have to represent the majority opinion, so a jury could still represent a minority view.

Jim Anderson said...

Ale, I agree that democracy, if simply defined as "majority rule," isn't the best value. But democracy in the modern day has a host of connotations and warrants that go beyond mere decide-by-plurality. The Stanford Encyclopedia of Philosophy's article is a good starting point; I also have some scattered thoughts on the subject here, and connect democracy to human dignity here.

Anonymous said...

That is why I use something like democratic principles instead.

jack said...

What about spirit of law as value and aristotle's justice as criterion?

Jim Anderson said...

jack, that's an interesting idea. What would you say is the "spirit of the law," and why is it a good thing?

Alan-a-Dale said...

Jim, what do you think of including Civil Disobedience in an Affirmative case? Specifically Thoreau's conclusion that if a law is unjust, members of society not only have the ability but the obligation to not follow the law.

Anonymous said...

Alan, I had civil disobedience in my aff, but it was pointed out that jury nullification is not necessarily a form of it. You are not disobeying a law, but merely pointing out the immorality of an unjust law.

Adam said...

I agree here, I think it would be better to use a justification talking about jury nullification not as civil disobedience but as a form of protest, which is both an inherent right, and a necessary check. Jim, how can I link the social contract directly to justice? I would like to have a strong V/C link. THANKS

Jim Anderson said...

Alan-a-Dale, et. al., although jury nullification might not be true civil disobedience--although the fact that it involves violating an oath, at least makes it a moral matter of disobedience, if not a strictly legal matter--the principles of civil disobedience could justify jury nullification.

In other words, if civil disobedience is justified, on the basis that moral law supersedes human law, and if jury nullification is morally equivalent, then it's equally justified.

You don't have to prove that they're the same, but merely that they are based on the same principles.

Adam, when it comes to justice--the balancing of competing rights claims--we give over some of our rights-claims to the State. If you steal from me, I don't come and hunt you down, but instead (or so the argument goes) I call the police. Justice, therefore, is sought through the law, and the law is founded on the social contract. Furthermore, a government that violates the social contract (by infringing or failing to uphold rights) has violated the social contract, which is unjust.

The social contract gives us grounds to limit government power in the first place.

Anonymous said...

Hey Jim, which value and value criterion pair do you think would help the most during a round? should i focus my neg case on the whole idea that the law making should be left to the leg. branch and alternatives?

Adam said...

Hey Jim, just another question here. I would like to include a contention in my neg case that basically says that when a jury nullifies a law, the effects of that decision do not actually...well, occur. I simply want to show that a jury's decision to nullify is not at all a check on government. If it doesn't work, it isn't just. This would help void any "right to protest" or upholding the social contract argument. Is this true? If so, is there anywhere I could find a card that would give me some "real" evidence? Thanks so much for all your help

Jim Anderson said...

Anonymous, that's a good--and tough--question. It depends on the kinds of arguments you raise. Are they going to be based on the ill effects of prejudiced nullification? Then perhaps your V/C is justice/equal protection of the laws. Will you argue for the integrity of the juror's oath to uphold the law? Then perhaps you'll use justice/the categorical imperative. Will your arguments be based on the notion legislative fairness--not letting a committee of 12 undo a law drafted and approved by the people's representatives, and not letting the layperson take on a judge's role? Then you might value governmental legitimacy with a criterion of proper checks and balances.

Adam, hmm. I guess I'd respond by saying that when a jury returns a "not guilty" verdict when a person has clearly and obviously broken the law, and the government is therefore unable to penalize, imprison, or otherwise punish the defendant, when it normally would have had not only the right, but the duty to punish. That effect is quite real. I'm not sure there's a good way to argue that nullification isn't efficacious, unless I'm just not understanding your argument.

Jack in the Box said...

In my aff case, my two contentions were that first of all, a panel of people (jury) is less liable to bias than a judge. Second I said that the Constitution allows this to happen. Would this be enough the prove that it is a just check on government, or do we have to have a contention stating that it is a just check on government.

Anonymous said...

could you help me get some contentions/ cards for neg

Jim Anderson said...

Jack in the Box, your first contention, if true, doesn't prove it checks government power, never mind that it's a just check on government power. I can see it heading in that direction, but you have to make it explicit.

Your second contention proves it's just only if constitutionality is your criterion for justice.

It might help to see your overall V/C structure.

Anonymous said...

I want to use contentions such as prevents injustice (check on unjust laws, historically prevented injustice and protects minorities) without nullification judges will abuse their position and JN aligns with the rule of law (it's part of the rule of law and prevents gov from overstepping law) What should my V/C be and is there any cards for my second contention about judges abusing powers

Oregon Debater said...

I'd just like to thank you Jim. This blog helped me tremendously to win Junior LD at the U of O tournament.

Jim Anderson said...

Anonymous, it's clear that your value is justice. Your criterion might be something like "protecting individual rights," if you can link each of your contentions to that standard.

As far as judges abusing their powers, the historical arguments for jury trials included just that. See here for examples.

Oregon Debater, that's fantastic. Congrats!

A-Heather-M said...

I just have a few ideas to throw out there for people who may be having trouble (Like me!) For Aff, I am using My Value as Rousseau's Social Contract and my Criterion is Christain G. Fritz's Popular Sovereignty which states that while people in the U.S. may elect officials to make laws for them, they still have the right to negate or veto the laws that those representatives make for them. Now, I do need some help with Neg. I want to use Justice as my Value, that or the Social Contract (Probably Hobbes), with my Criterion being the Rule of Law. I am having trouble finding a philosopher for the Rule of Law. Any advise on who to use?

Jim Anderson said...

Heather, Wikipedia actually has a decent intro to the subject of the rule of law.

For a more advanced perspective, check out the SEP's articles on The Nature of Law and Law and Ideology.

Alex said...

I'm trying to run a VP of justice with a definition of giving each his due. What's a good way of stating a value criterion that is essentially making sure that those who deserve punishment are punished, while not punishing innocents?

Jim Anderson said...

Alex, you're looking for a theory of retributive justice / justice as desert, with proportionality (that the punishment fits the crime) as a major component. I have some thoughts on the subject here and here (related to different LD resolutions).

Anonymous said...

What do you think of a VC for Mill's social liberty (defined as protection from "the tyranny of political rulers.")
achieved through 1) obtaining recognition of certain immunities, called political liberties or rights and by 2) the establishment of a system of "constitutional checks

any thoughts???

Jave said...

What's rule of law's connection to justice as a VC?

Jennifer. said...

This is my first ever time writing a debate case, so I'm all new.
For Aff, was thinking about V: Progress and Cr: Maximizing government legitimacy.
How would I define Progress, and should I state a specific type of progress? Because progress is pretty broad. And does the cr link back up to it?

Anonymous said...

Jave
I am planning to use social liberty and tie it to justice because it gives people rights and it is a check and balance. This achieves to justice by allowing people to have a say in the gov and limits tyranny of the majority

Jim Anderson what do you think of this?

Jim Anderson said...

Anonymous, "Social liberty" as Mill defines it seems to work perfectly for the Affirmative. And it absolutely links to Mill's libertarian notion of justice.

Jennifer, you've hit upon the weakness of "progress" as a value, but if you use Mill's notion of the marketplace of ideas--that social liberty is instrumental in achieving progress--you might have a better approach. Progress as a value, Social Liberty / the Marketplace as a criterion. You'd define progress as a more free, just, healthy, and wealthy society, and show how jury nullification, by reducing tyranny of unjust laws, makes for a better life for all.

Anonymous said...

Hi, I'm new to LD, so I'm wondering if it would work on the Affirmative side to have Justice as my value & Democracy or the Democratic Process as my criterion?

Jim Anderson said...

You sure can. Be sure to warrant your value and criterion; in other words, explain why justice is the most important value in the debate, and why justice requires democracy / democratic processes.

Anonymous said...

Jim,
Is there any examples of JN casuing harm to innocents or worst resulting in killing innocents

Also, any examples of JN increasing crime.

Thanks!

Jim Anderson said...

Anonymous, good questions.

As to the first, the evidence would be indirect at best. Unless you count false convictions as nullifications-- and not all scholars do--then you'd have to prove that someone's acquittal via nullification led to further violence, either through direct causation or through a decrease in deterrence. Neither is going to be easy to warrant.

I suppose you might argue that the acquittal of a guilty person (say, a racist acquitted of a lynching) causes harm to the victim's family, since they are forced to live with the injustice (or seek justice through other means, like vigilantism, which creates a cycle of violence).

And again, if you count intentional false convictions, then definitely someone intentionally falsely convicted and serving time (or worse) is a victim of nullification.

I haven't found any empirical evidence that nullification significantly increases crime; this is because the practice is either so rare as to have minimal impact, or, if more widespread, is so little known (because jurors don't have to disclose their reasons) that its impact is impossible to measure.

Anonymous said...

Do you think that a value criterion of a Stable/Solid Court System could fit Justice as a value on the Neg side for this resolution? Thanks for the feedback!

Jim Anderson said...

Anonymous, if you can provide a strong link between stable courts and justice, then you're good to go. "Equal protection of the laws" and "due process" could both be affected by a destabilized court structure.

It seems to link to the "rule of law" concept as well.

Destinyyy! said...

This blog is amazingly helpful, I am relatively new debater. For my neg case what do you think of justice achieved through due process of law? would something else work better?

Jim Anderson said...

Is due process sufficient for justice? Probably not. I'd use it as part of a dual criterion with "equal protection of the laws." Or as a contention (along with the latter) under the larger criterion of the rule of law.

Anonymous said...

Jim,
THANK YOU SO MUCH!
your site and your advice for my case helped me qualify for cfl nationals!!!!

thanks

Anonymous said...

Lol. Going either way. Like a bisexual. hehehehehehee.

Jim Anderson said...

Anonymous 1, that's great--congratulations!

Anonymous 2...

...

...

sigh...

Anonymous said...

would consequentialism work as a value criterion for the neg.?

Jim Anderson said...

Anonymous, it might; would your value be justice or societal welfare? Either way, you have to link your V/C to the phrase "just check," which shouldn't be difficult if your advocacy is based on the harmful consequences of the principle of jury nullification.

Anonymous said...

thanks I wasn't sure if consequentialism would sound too vague.I was thinking of using justice and talking about biased jury nullification mostly.

Anonymous said...

I have a question. I think I'd like to use Justice as my value, as a morally correct judicial system would try to achieve justice (Aristotle's definition). What would be a good VC? I don't really feel all too comfortable using a "Social Contract" because I don't really know too much about them and I think a good opponent could turn it against me and say that by nullifying laws, a jury oversteps the social contract.

Jim Anderson said...

Well, you could go with "preventing tyranny," or "upholding moral law above human law," or "civil disobedience," or a Kantian conception of retributive justice in which it's absolutely forbidden to punish an innocent--and that nullification is sometimes necessary to ensure that the State doesn't wrongly punish.

Jim Anderson said...

If you're the person whose comment no longer appears, you can probably figure out why I deleted it. If you can't, email me for an explanation.

Anonymous said...

Okay, I'm working out putting a case together, I don't have any experience in LD specifically. I understand how it works and the dynamics of putting a case together, but I'm having a little bit of trouble understanding alot of the value/criterion pairs that have been posted up. So I guess it'd be really helpful if you could poit out one on both neg and aff that someone with alot of policy experience (like myself) could understand and run easily. Thanks

Kiyume said...

Jim, I first wanted to say that I love your blog--both the LD and non-LD related aspects of it!

For Aff, I was thinking of going for justice as a value, and rule of law as a value criterion. Since rule of law is basically putting limits on government power, that would make jury nullification a part of rule of law...right?

I was going to argue that the defining idea of a jury is the fact that a jury has its own moral convictions, and doesn't blindly follow what the court says but rather comes to a consensus based on what they believe is just. Also, I found many resources giving examples of such founding fathers as Thomas Jefferson and others stating explicitly that it was not only the job of the jury to deliberate the facts, but also to interpret the law those facts pertain to. Do you think that would be a reasonably solid argument for Aff.?

Jim Anderson said...

anonymous, have you seen my thoughts on casewriting, and also on the criterion? Understanding and using the criterion is probably the thing to learn about LD, as opposed to other forms of debate. Anyhow, check out those posts, and if you have more specific questions, feel free to ask them here, and I'll do my best.

Kiyume, I like the ideas in your third paragraph. It's this part I'm not sure about, though: "...Since rule of law is basically putting limits on government power, that would make jury nullification a part of rule of law...right?"

It's not quite that simple. In fact, Wikipedia has a good rundown of some of the controversies surrounding the exact definition of "the rule of law." At its core, it isn't about individual rights or government limitations per se, but rather about laws that are understood, enforced, and obeyed, so that society will flourish.

Anonymous said...

OKay, I checked the links and I really th9ink I get it now. Could you give me an example of a few good contentions for the justice/social contract pair?

Jim Anderson said...

There are many, many ways to go about it. One possible way:

Contention one: nullification fulfills the social contract.

Subpoint A: Mitigates the immediate impact of unjust laws.

Subpoint B: Pressures governments to change / repeal unjust laws.

Contention two: nullification sits comfortably alongside other legitimate checks on government power. (Revolution, protest, civil disobedience, etc.) If they're legitimate, certainly nullification is legit.

Hopefully that gives you something to work with.

Anonymous said...

Hey Jim, hopefully you don't mind me asking a question about jury nullification on an unrelated blog post. As the aff, I've been hitting several equal protections clause negs (JN=laws are applied differently in similar cases). My response has generally been that the law isn't applied equally already, that police and prosecutorial discretion is integral to any justice system, and that complete adherence to the EPC is an impossible thing to expect out of a just legal system. Do you think this is the correct way to answer this negative? Could you give me some tips on how you think the EPC should be rebutted? Thanks.

Jim Anderson said...

Anonymous, that's a good starting point. Another thing to consider: of what value is equal protection of a bad law? So everyone is equally treated, sure, but equally miserable?

In other words, justice and equal treatment aren't always the same thing.

When a jury stands up to nullify an unjust law--stands up against the State--the fact that, somewhere else, another person is being punished for that law is unfortunate--but punishing two innocents is hardly more just than punishing only one.

Anonymous said...

how would justice tie back into the social contract because if the government steps out of bounds they simply broke the social contract but i don't understand the value justification

Jim Anderson said...

Anonymous, for thinkers like Rawls, justice arrives not from transcendent principles, but from the negotiations and deliberations of people in the "original position." The social contract outlines the rights and privileges of the citizens, limits the power of the State, and, from a criminal justice perspective, places the power to punish in the State's hands. (To leave it up to citizens is to welcome anarchy.) That's why we have juries, and how the social contract links to justice.

Does that make sense?

Kelly said...

Would it be bad to run Checks and Balances as a criterion? Or would Rule of Law be better? I was reading about how jury nullification can be used to 'check' the government. (I'm going aff)

Jim Anderson said...

Kelly, the rule of law is definitely trending Negative. "Checks and balances" might be a decent criterion; what value would it link to? (It's nice and resolutional, since we're debating whether nullification is a just check on government power. Which is to say, you'll probably want to have justice as your value.)

Deneisha said...

How would you define rule of law? I'm running it as my value for Neg and find it a bit hard to define.

Erika said...

How can the process of voir dire be used in the negative? I was thinking you would likely argue that for the affirmative because then you could say that if a juror had any biases then he/she wouldn't be serving on the jury in the first place.

Jim Anderson said...

Erika, the point I was making about voir dire is that, to survive it, a juror who, say, believes that the War on Drugs is immoral is going to have to lie when asked by the prosecuting attorney whether she'll convict on a drug charge. That lie, in Kantian ethics, is impermissible, and hence an unjust check on government.

The point can be made more broadly: in most jurisdictions, jurors must take an oath to uphold the law and judge only the facts of the case. Nullification would mean violating that oath--and would similarly be a form of impermissible behavior in a Kantian scheme.

Lastly, regarding that line of thinking about the Aff claiming that biased jurors will be removed during voir dire, it simply isn't realistic. Everyone has biases, and neither the prosecutor nor the defense will ever be able to strike out all the prejudiced members of the jury. In fact, savvy attorneys look for ways to exploit biases and assemble a jury that is as favorable to their side as is possible.

Jim Anderson said...

Deneisha, it's easy to miss in the comments above, so I'll link to the comment I wrote about it.

Suffice it to say that there are many (competing) definitions of "the rule of law," so you should choose the one that makes sense to you, and seems to fit best with your advocacy.

Destiny said...

What do you think about Human Life acheived through Schweiter'z philosophy of reverence for life, for the affirmative?

Jim Anderson said...

Destiny, for jury nullification? Or for a different resolution?