how much evil can the world afford?

In a recent post, blog-neighbor Mark Olson turns the Problem of Evil around.

The claim is that theodicy is an intractable problem for the believer given the evil in the world. I think that this is not necessarily the case, but that those who object to the current state of affairs have failed to provide examples of a reasonable alternative world. Failing to do that means their theodicy objections lack force, that is they object to a state of affairs which may actually be exactly what is prescribed.

The quantified theodicist, in essence, claims that this is the best of all possible worlds. And, as Olson points out, imagining a better one leads to epistemic difficulties.

1. Some of them involve a failure of imagination. Imagine a world, for instance, in which humans can regrow limbs, or don't ever have to sleep, or are born with built-in iPods. Now imagine a world that you can't imagine. Which is the best world? How do you quantify the answer?

2. Besides, any rigorously logical attempt will be confounded by the Butterfly Effect.

3. Perhaps a probabilistic argument is more likely to succeed:

1. If at least one instance of evil is gratuitous, then this is not "the best of all possible worlds."
2. It is highly likely that at least one instance of evil is gratuitous.
3. Therefore, it is highly likely that this is not "the best of all possible worlds."

4. Of course, the definition of "gratuitous" might just be a form of question-begging.

5. Returning to #1 above, perhaps the answer involves an inversion the Ontological Argument. Although I cannot yet conceive how.

6. Ultimately, the problem of the imbalance in perspectives is a form of self-directed ad hominem. It may be logically defensible that every instance of evil is somehow necessary for a greater good, but it's difficult to argue the point without seeming damned callous.

actually, we might have started the fire

Freud was wrong about just about everything. One thing he got partly right, though: the death drive, most prevalent in middle school students.

In his "Important Safety Message Parents" posted on the Federal Way School District Web site and mailed to homes last week, Murphy said he was compelled to warn against "a dangerous activity that is increasing in frequency among young people."

" Children are using Axe Body Spray, a popular cologne among young people, to light themselves or their clothing on fire," his letter continued.

"YouTube videos and news reports show the dangerous activity is being practiced across the world. .. Children often don’t have the judgment to understand the dangers in what they view online," he wrote.

This fad is hardly new; I remember some jackass outside Elma's middle school gymnasium using a can of hairspray to reenact critical scenes from The Thing. That was 1990, back when eraser burns were a badge of stupid pride, when Hypercolor T-shirt and Hammer pants and Vanilla Ice warned us of the impending doom of civilization.

It got here all right. It just took longer than some expected.

Vlatko Vedral decodes reality

According to Vlatko Vedral (who's been mentioned here before), the universe is a quantum computer.

Over the last two decades, a flourishing field of quantum information and computation has generated a wealth of experimental and theoretical tests of information processing at the quantum scale. Vedral is one of the luminaries in this field.

In Decoding Reality, Vedral argues that we should regard the entire universe as a gigantic quantum computer. Wacky as that may sound, it is backed up by hard science. The laws of physics show that it is not only possible for electrons to store and flip bits: it is mandatory. For more than a decade, quantum-information scientists have been working to determine just how the universe processes information at the most microscopic scale.

Combine this with Nick Bostrom's "simulation argument," and, like Hamlet, you start wondering which level you're on, and if there will be any continues when the game ends. (At least I think that's what Hamlet was on about.)

LD mailbag: resources, plus jury nullification!

Regarding LD in general, and the jury nullification resolution in particular, a reader writes,

Mr. Anderson,

Hey there! I had a great teacher that ultimately helped me win last year, and I thought I might pass on some ideas and resources that otherwise could be helpful.

As for evidence, I highly recommend looking up the WNDI Debate Camp Files. A Google search of that name will bring up a site that includes a comprehensive brief that is completely free.

Although many won't try to delve into philosophy, the most useful book in my debate career has been Dr. S. E. Frost Jr.'s book The Basic Teachings of the Great Philosophers. The citations are quick and easy explanations over the tough concepts, great for explaining philosophy in a case or rebuttal.

Now for the topic...

The affirmative is quite easy to run on this topic, and I think you have it pretty well covered on the site.

The negative is a harder position to run for sure, but can be really persuasive if the resolution is used to its fullest. A proper definition of democracy is the fulcrum of the position I use, as it preempts the ultimate "Jim Crow" or "Fugitive Slave Act" arguments one is destined to hit. My using the 'principle' part of the resolution, one can say that many of these laws were not in line with the principles of the Constitution, and despite having happened historically, are not applicable under the resolution. Even one can go on to say that because many demographic groups were denied participation in the political system, those laws are also inapplicable, especially in a modern sense.

The negative arguments certainly have to revolve around objectivity, and principles such as equality, order, and democracy. The arguments concerning racism, bigotry, etc., can prove to be fundamentally subversive to a democratic system that appreciates political differentiation. Undermining laws at will can be anarchic. Injecting subjective views of the jurors into the objective system of law (that is legitimized by the very people themselves) is more often to be used for ill than for good in a system that represents the principles it was founded upon.

Just a few thoughts, hopefully they helped. If not, thanks for your time!

And thanks for your thoughts.

politics and daffodils

This Monday afternoon found the legislature in special session. Sign things will wrap up quickly: on a warm March day, the Capitol parking lot emptied precisely at five.


And, really, why would you want to be stuck inside the Capitol when daffodils are blooming?

[Photos courtesy of Melissa Anderson, who shares my political philosophy regarding unreasonably springlike weather.]

No Curriculum Left Behind

The last time I blogged about the nationalization of American education: a year ago, almost exactly. A year ago, it was ratcheting-up-rhetoric. But words have a way of translating into action:

Maryland and several other states are pushing rapidly toward adoption of new academic standards proposed Wednesday for English and math, adding momentum to the campaign to establish common expectations for public school students across the country.

The District also is on track to adopt the common standards drafted by experts in a project led by the National Governors Association and the Council of Chief State School Officers. However, it is possible that Virginia will not join the apparent surge toward approval.

I should point out that my home state--the "other" Washington--is part of the effort. And what might it mean?

Widespread adoption of common standards would mark a watershed for schools, triggering consequences for curricula, textbooks, testing and teaching. Some critics say common standards amount to a thinly disguised ruse to establish national standards under federal control -- an allegation that state and federal officials deny.

They don't have to be a "ruse" to have the eventual--and seemingly inevitable--effect of a national curriculum. Unless the feds dismantle NCLB, which simply isn't going to happen, there will always be a reason to federalize.

Added: a blog-neighbor questions the Common Core standards.

never bet against a pigeon

Add this to the list of things that make humans exceptional: we are exceptionally bad at probability. Worse than pigeons, in fact.

the Skinner Box in your PS3

I pity young folks. Cursed with the most incredible technology, it's no surprise that they are online, or at least plugged in, more than researchers imagined possible. David Wong, in an amusing article, explains why:

This is a big source of controversy in the world of game design right now. Braid creator Jonathan Blow said Skinnerian game mechanics are a form of "exploitation." It's not that these games can't be fun. But they're designed to keep gamers subscribing during the periods when it's not fun, locking them into a repetitive slog using Skinner's manipulative system of carefully scheduled rewards.

Why would this work, when the "rewards" are just digital objects that don't actually exist? Well...

On second thought, maybe you don't want to know why.

And I'll add: now I know why the treasure boxes in Assassin's Creed II are worth varying amounts of cash. (I am not a gamer, though. Promise.)

Sidebar: Chris Dahlen joins the cult of Mario.

the injustice of jury nullification

Is the principle of jury nullification a just check on government power? In an article titled "License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking," found in the June 1997 edition of the Yale Law Journal, Richard St. John answers with an emphatic "no." He situates his analysis in the context of attempts by the FIJA (and similar groups) to make nullification a legally protected right by amending state constitutions. (As it stands, in most jurisdictions, juror instructions make it clear that the jury is to merely sift the facts and apply the law, not judge the merits of the law.)

While making the case against statutory reform, St. John offers several reasons why nullification is unjust. The first: it is patently undemocratic.

Proponents of jury nullification have convincingly argued that nullifying juries make law. Although they would conclude from this that the jury might be understood as a lawmaking body parallel--or even superior--to the legislature,I will argue that this insight demonstrates the crucial and fatal flaw in the case for enactment of the jury nullification power. When legislatures delegate to juries the right to make law, the law becomes not more but less democratically legitimate.

Why is this?

[J]uries can neither represent nor embody the community or its will. Not only do juries fail to reflect an adequate demographic sample of the community, but their voting rules make them minoritarian rather than majoritarian bodies. It is impossible to reform their minoritarian nature without undermining what little confidence we do have in their verdicts' representativeness.

The paradox of supermajorities in all forms, of course, is the same: they tip the scales toward dissenters. St. John also notes that the "minorities" in the jury room are not even necessarily minorities in the wider community, which doubly means that the the mistrial (or, possibly, reduced charge) that results from a hung jury will not reflect the community's wishes.

Of course, this argument doesn't apply to someone who justifies jury nullification on other grounds--or someone who limits jury nullification in principle to a unanimous acquittal.

What, then of the argument that "jury mercy" is a way of reducing government power?

Central to the theory of the "jury veto" is an understanding of nullification as having the potential only to aid the criminal defendant. Although this claim is often made in the abstract, it is also made by those who would seek an open, legislatively enacted form of jury nullification. In order to protect individual liberties, this argument runs, the entire criminal justice system is stacked in favor of the defendant; if the jury, or any other coordinate actor in the process, refuses to convict the defendant, she will be set free. According to one proponent of this view, the jury's exercise of its "power to acquit, notwithstanding overwhelming evidence of guilt... is simply an act of mercy to a particular defendant in a specific case." This definition of nullification as "jury mercy" is not uncommon in the literature. However, the concept is gravely mistaken on three levels. First, on an empirical level, nullifying juries can exercise vengeance as well as mercy; in nearly all recent proposals for nullification, little restraint would be placed on the jury's ability to penalize defendants. Second, on a theoretical level, our criminal justice system serves important ends that would be neglected were guilty defendants to be freed by jury "veto."... Finally, even though we ought to be concerned about the discretion other actors can exercise, additional jury discretion is a dangerous and unsatisfying remedy.

The prohibition of "double jeopardy," the fact that jury deliberations are private, and the fact that jurors cannot be held liable for their verdict, means that juries can act with little accountability.

more power to the referee

The most powerful man in America, at the moment, is a parliamentarian.

As Democrats try to salvage health care reform, there is one man who above all others will help determine its fate, and he is not Barack Obama or Harry Reid or even a member of Congress. In fact, odds are you've never heard of Alan Frumin, the Senate parliamentarian. But when it comes to the complex budgetary procedure known as reconciliation, the filibuster-proof process which Democrats hope to use to make certain fixes to the Senate bill, Frumin is "the defense counsel, he's the prosecution, he's the judge, he's the jury and he's the hangman," says Senator Judd Gregg of New Hampshire, the top Republican on the Budget Committee.

It will be up to Frumin to decide what parts of the previously passed Senate health care bill Senate Democrats can and cannot amend with a simple majority of 51 votes. House Democrats, who are being asked to pass a Senate bill with which they have some real disagreements, are counting on their Senate colleagues to make a certain number of tweaks after the fact, but that is no easy task.

The problem in using reconciliation is twofold: 1) it's open to amendments and many Republicans Senators, including Tom Coburn of Oklahoma, say they plan on filing hundreds of amendments, potentially gumming up the Senate for months; and 2) under a provision known as the Byrd rule — named after Senator Robert Byrd of West Virginia — every provision passed through reconciliation must be deemed relevant to the underlying budget by the parliamentarian.

Or, in other words, "germane to the resolution," a staple of Robert's Rules of Order and classic parliamentary procedure. (The same general principle forbids amendments that merely insert "not" into bills or resolutions as a way of negating their impacts, except in the case of an obvious typo.)

Read the whole thing to learn about the fascinating intricacies of the Senate's parliamentary procedure--and what would make a parliamentarian say, "The rules are perfect and if they're all changed, the rules are still all perfect."

contraption to the nth degree

Never was so much Rube Goldberg given to so many by so few.

[via Scott Tobias.]

school bus ad bills dead

A while back I noted a few legislators' novel idea to raise revenue: ads on public school buses.

Today, Slog reports that both such bills died in committee, and will not be resuscitated.

(The initiative to legalize pot is still clinging to life support, and the ACLU refuses to chip in to cover its medical bills. Okay, that's as far as I can stretch that analogy.)

justice as a human undertaking

Regarding the jury nullification LD resolution, I'd like to share a few more snippets from William Dwyer's In the Hands of the People. (The first installment is found here.)

1. I like the quotes Dwyer uses to preface his work, and, shamelessly, I'll reproduce them here. The first is by John W. Gardner, in Morale, and makes a nice warrant for the value of justice.

Justice is probably the oldest and most universally professed value. Anthropologists and historians are hard put to name a healthy society that has not honored (or professed to honor) some variation of the idea. Nature is unjust, humans are often unjust, and yet we refuse to live in a world without the idea of justice.

The second is by Sir Patrick Devlin, and comes from his lecture titled "Trial by Jury," found in the Hamlyn Lectures.

No tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.

2. In his own rhetoric and argument, Dwyer continually emphasizes the human element of justice.

In today's world the word-based trial model is taken for granted. The courtroom puts even our most atrocious acts through the civilizing mill of evidence, analysis, and judgment.... Once the evidence is in, the judge or jury decides what happened, applies the law, and enters judgment. An impartial search for the truth, and a faithful application of the law to the facts, are at the heart of the practice.

We admire this method for its appeal to reason, its fairness, and its fidelity to what has gone before. But these virtues are far from the whole story.... A trial is a civic function, but it is more than that; it is also a ceremony, a ritual, and an exorcism.... [O]ur modern adversary system of justice, with its commitment to the truth, its logic and verbal trappings, its robed judges and elevated benches and incantations of "may it please the court," is a descendant of the ordeal, the magic contest, and the trial by battle. There is more to the law than syllogisms; to serve the living, the process must be filled with life.

Later in the text, Dwyer tells of a case he adjudicated, in which a man confined to prison was charged with six felonies for writing threatening letters to a drug dealer. The man confessed to writing the letters, saying that he was just foolishly blowing off steam, and the jury agreed that the man had been "overcharged" but was clearly guilty. Only the foreman refused to cast a guilty ballot, causing a mistrial that eventually led to a plea bargain with a greatly reduced sentence. From this example, and from a historical survey of classic nullification cases, Dwyer concludes:

Jury mercy has ranged from the noble to the humdrum to the disgraceful. But in the main it has served us well. By defeating unjust prosecutions, by defending the weak against overzealous officaldom, by fending off oppressive uses of the law, jurors have strengthened not just liberty but the rule of law itself--and they still do....

Jury mercy is not to be feared. It is one part of the discretion jurors must use in deciding an endless variety of questions.... Jurors make judgments, and they do so by using not just the law laid out for them by the judge, but their own sense of justice as well. In this way they keep the law legitimately attuned to community values.

hand sanitizer, mind tranquilizer

To the list of things that don't actually keep you from getting sick--chugging vitamin C, downing homeopathic remedies, using Airborne, staying out of the rain--add hand sanitizer.

To begin, the influenza virus mostly spreads via tiny droplets in the air (for example, from sneezes)—not by dirty hands or surfaces—which limits the role of Purell. It probably wouldn't matter even if flu transferred though hand contact, which is how most cold viruses spread. Though Purell kills them in the lab, hand sanitizers don't stop their spread in the real world. The average child touches his or her mouth and nose every three minutes, and both adults and children come in contact with as many as 30 different objects every minute. Even hospitals can't get staff to use Purell before seeing patients; it's impossible for day care staff, parents, or teachers to wash a child's hands 20 times each hour.

Too bad germs are resistant to the placebo effect.

support your local jury

If you're studying the March / April jury nullification resolution, you might want to check out William L. Dwyer's In the Hands of the People, a book-length love letter to the American jury. I'm going to post a few things from it, starting with an argument for the epistemic superiority of the jury as a democratic institution.

Think about the legitimate limits on government overreach allowed in most social contract theory: checks and balances, judicial review, sunshine commissions, freedom of speech, an independent press, a bill of rights, elections, protests, and even revolution. Is a jury equal in impact and importance? Absolutely. As Dwyer argues,

If jury trials as a rule produce sounder results than we can count on in elections--which I believe they do--one reason may be the quality of information given to the citizens who must decide. In contrast to the chaos and mendacity of much political campaigning, and to the scattergun delivery of thirty-second television commercials, a jury hears testimony that is kept to the point by an impartial referee, tested by cross-examination, and offered throughout a day. We should be able to learn something valuable from the differences in communication.

With about 1.5 million Americans serving in courtrooms each year, the trial jury achieves a unique dispersal of governmental power. Far from being obsolete, it gains importance as elected officials become more distant from those they represent. When the United States government began, there was one congressman for every 38,000 constituents. Due to population growth, there now is one for every 647,000, a seventeen-fold increase in remoteness; state legislatures have seen a similar change. The jury, by placing decisions directly in the hands of the people, bridges the widening gap between citizens and their government. Our challenge is not just to keep it, but to restore it to full health amid new and difficult conditions.

Dwyer's work was published in 2002, and in the intervening years, a few things have changed. The explosion of news outlets, blogs and social media arguably place governments closer to the citizenry, but at the cost of raising the noise-to-signal ratio. Furthermore, the population has grown, and the recent Supreme Court decision to relax restrictions on corporate electioneering, along with the perpetual growth of K Street lobbying, means that one of the average citizen's most direct influences on government is still through jury service.

Now, this doesn't argue for nullification per se. It does, however, place the jury on its proper footing, as an essential component of a functional free society. We'll save Dwyer's thoughts on nullification for another post.

Updated: And those thoughts are found here.

one meeeelion pageviews

Sometime later today, or early tomorrow, this blog will hit a million pageviews.

It's hard to believe.

For big blogs with multiple authors and a frenetic amount of blog-izing, that's nothing, but for a hobby site that started and stayed free--and free of ads--I think that's pretty good. I don't know how many millions of anything I've acquired in life, but soon I'll be able to say, "If I had a dollar for every pageview..."

Thanks, readers, especially those from the world of speech and debate, who pushed this site up the Google rankings and turned me into an accidental expert on everything Lincoln-Douglas. And thanks, searchers, for being so weird, and turning me into an accidental expert on everything random.

Now, on to the next million.

Update: A reader from Torrance, California, is our number one million.

jury nullification and "parameters of acceptable deviance"

Regarding the jury nullification resolution, the affirmative has to show why the practice is not only a check on government power, but a just check. The intersection of morality and legality becomes quite important for both sides.

In "Law and the Parameters of Acceptable Deviance," found in the Fall 2006 edition of the Journal of Criminal Law and Criminology, Mark Edwards argues that jury nullification shows society's "parameters of acceptable deviance," or PADs. The traditional conception of nullification:

Juries confronted with a defendant charged with conduct that is formally illegal but within PADs may nullify the legally appropriate verdict in favor of the normatively appropriate one. Nullification inspired by acceptable deviance results, in criminal trials, in acquittal despite the jurors' belief beyond a reasonable doubt that the defendant is guilty of the crime. In the civil context, it results in a finding of no liability even though the jurors believe that a preponderance of the evidence demonstrates that the defendant is liable in tort.

(It should be noted that in civil trials, nullifying juries can have their verdicts overturned; in criminal trials, however, an acquittal is final, thanks to laws preventing "double jeopardy.")

Edwards, like most other scholars of nullification, recaps the practice's historically high regard.

[J]ury nullification is commonly credited with sparing some violators of the Fugitive Slave Act, Prohibition, and draft laws during the Vietnam War. In other words, in some times and places, aiding escaped slaves, manufacturing alcohol, and resisting the draft were within PADs though formally illegal. In each case, prosecutors and courts could not or would not accommodate PADs. Negotiation-through-practice had failed to produce a parameter of deviance acceptable to both regulators and the regulated.

Essentially, jurors who nullify value their community's moral standards above its legal standards--even when facing personal risk for doing so.

The strength of their fidelity to normatively acceptable standards is revealed by their willingness to enforce them despite personal risk. Although at common law jurors have been immune from prosecution for voting their consciences, they have sometimes been prosecuted after nullification for violating their jurors' oaths by refusing to adhere to the law.

What kind of laws provoke nullifying acquittals?

Today, nullification resulting in acquittal is thought to occur most commonly in "three-strikes" cases and drug cases. Hannaford-Agor and Hans make a distinction between jurors' concerns about the fairness of the law itself, on the one hand, and the fairness of the outcome of a guilty verdict for the defendant, on the other. This distinction seems particularly important in "three-strikes" cases, which can impose enormous penalties for relatively minor offenses, and in those drug cases where small amounts of drugs can result in long sentences. In such cases, the jury may find the defendant's conduct outside of PADs, but may also find the punishment that will be imposed normatively unacceptable. If the legal penalty is less acceptable than the illegal conduct, juries may vote to acquit despite believing the defendant guilty.

"Mandatory minimums," "zero tolerance" policies, "three-strikes" schemes, and the like all take the context out of account, turning justice into a matter of mere calculation. As moral norms are intuitive, sometimes difficult to warrant or rationalize, no wonder juries might find the law too constricting.

Now we come to the core argument. Proponents of nullification either minimize or exclude examples of nullifications-gone-wrong.

Some scholars argue that unjust acquittals should not be considered acts of nullification. But nullification, on its own terms, is neither just nor unjust. Whether the result is just or unjust, nullification is the product of the same phenomena: juries preferring PADs over law. So, normatively acceptable deviance may include unlawful acts that are also unjust. For example, in some times and places, juries might acquit white supremacist defendants who, beyond a reasonable doubt, had killed or assaulted African-American civil rights workers. Historically, juries may also have nullified the law by acquitting murderous cuckolded husbands, rapists "enticed" by their victims, violent nationalists, and others whose conduct was formally illegal but, by the normative sensibilities of their time and place, within PADs.

Edwards goes a step further than most, however. Rather than focusing solely on nullification-as-acquittal, he looks at the opposite side of the coin.

In addition to just and unjust acquittals, jury nullification may-and perhaps most commonly does-take the form of unjust convictions. In other words, juries may convict a defendant even if they are not convinced of guilt beyond a reasonable doubt, if some other characteristic of the defendant or his conduct is considered unacceptably deviant. Juries may be likely to convict a defendant that they find unacceptably deviant, as opposed to a defendant with whom the jury shares common normative sensibilities, even if the evidence of the particular crime with which the defendant is charged is the same. For example, jurors may be inclined to convict a defendant covered in gang-insignia tattoos, even if the evidence that he committed the crime with which he was charged is not strong. Similarly, juries may be inclined to sanction members of formally legal but normatively unacceptably deviant-religions, or professions, or political organizations. The normatively unacceptable behavior is not illegal, which makes formal enforcement against it impossible. But because the behavior is normatively unacceptable, the community may welcome the opportunity to impose sanctions that formal institutions of enforcement cannot.

Few scholars have considered unjust convictions instances of jury nullification, but they are logically identical to jury nullifications resulting in acquittal: they are the product of jurors preferencing PADs over law. Just or unjust, conviction or acquittal, the phenomenon is the same. Moreover, by excluding cases that result in convictions, scholars ignore the phenomenon of unacceptable compliance and miss what is, quite possibly, the majority of jury nullifications.

Here's where I think Edwards' argument is weakest: even if "unacceptable compliance" and "acceptable deviance" are logically equivalent, our justice system, as mentioned above, has an asymmetry between conviction and acquittal. Convictions can be appealed and overturned, so excessively-punitive juries are less of a theoretical risk to justice.

Overall, Edwards' article is worth reading not only for the sake of his claims--especially as they apply to the Negative side of the resolution--but for its extensive footnotes.

liberty, democracy, and the role of the jury

[Regarding the March/April jury nullification resolution.]


What is the right and proper role of a jury? Proponents of nullification like to point to historical examples, like the Zenger trial, as proof that the practice is legitimate and necessary for a functioning democracy. Not so fast, writes Daniel P. Collins in "Making juries better factfinders," found in the Winter 1997 edition of the Harvard Journal of Law and Public Policy.

As I see it, the most important reason for preserving trial by jury in criminal cases is not to promote democracy or to encourage "appropriate" nullifications; rather, the reason is to promote accurate determinations of guilt. It might be argued that juries are not well able to produce accurate decisions. But a look back at history--around the time the Constitution was adopted--will show that the Framers' belief in the accuracy of jury decisionmaking was one of the primary reasons given for protecting the right to a jury trial.

In the debates over the Constitution, there was repeatedly mentioned a great fear that judges would be biased or, at least, that they might be too idiosyncratic in their decisionmaking. Thus, while not much discussion of the jury provisions appears in Madison's notes of the convention, at one point Elbridge Gerry says that the Constitution should also provide for juries in civil cases in order to avoid against the possibility of corrupt judges. Alexander Hamilton, in Federalist No. 83, argued that by securing a right to jury trial in federal criminal cases the proposed Constitution provided for the surest defense against "the great engines of judicial despotism," which were "arbitrary methods of prosecuting pretended offences, and arbitrary punishments upon arbitrary convictions." An anonymous pamphleteer, during the course of the debates on ratification, had the following to say: "The Chief Magistrate... of a republic, is as liable to personal prejudice, and to passion, as any King in Europe; and might prosecute a bold writer, or any other person, who had become obnoxious to their resentment, with as much violence and rigour." And Richard Henry Lee remarked that if the administration of justice be "entirely entrusted to the magistracy, a select body of men, and those generally selected by... such as enjoy the highest offices of the state, these decisions in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity."

With all due respect to judges, it thus seems clear that the Framers were concerned that an individual judge might not fairly and accurately weigh the evidence in a case. By contrast, a jury was thought to reflect the common sense of the community and thus would not suffer from the biases or idiosyncracies [sic] of an individual judge. As Jefferson put it:

In truth, it is better to toss up cross and pile [heads or tails] in a cause than to refer it to a judge whose mind is warped by any motive whatever, in that particular case. But the common sense of twelve honest men gives still a better chance of just decision than the hazard of cross and pile.

...And a letter, written by one of the convention delegates from Georgia, puts the point this way:

As to trial by jury in criminal cases, it is right, it is just, perhaps it is indispensable,-the life of a citizen ought not to depend on the fiat of a single person. Prejudice, resentment, and partiality, are among the weaknesses of human nature, and are apt to pervert the judgment of the greatest and best of men.

Indeed, the United States Supreme Court, in its cases discussing the nature of the right to a jury trial, has tended to emphasize the jury's role as an impartial factfinder. In a civil case from the nineteenth century, the Court stated that "[i]t is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge."

For every Affirmative arguing that the jury is an instrument of democracy, the Negative can respond by arguing that it's meant to protect individual liberty. In a criminal trial, we err on the side of caution--"innocent until proven guilty"--because we fear punishing the innocent more than letting the guilty go free. And, as Timothy Sandefur writes,

...the Progressivist interpretation... sees "democracy" as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote "democracy." This is the opposite of the view of the Constitution's authors: they believed that the fundamental constitutional value was liberty, and that democracy existed only to serve liberty. That's why the first sentence of the Constitution declares that liberty is a "Blessing," and why the Constitution goes on to impose serious limits on democracy.

Of course, this argument, in the hands of a capable Affirmative, might be the foundation of an individual rights-based case.

a "process view" of jury nullification

Concerning the March/April jury nullification resolution, Nancy S. Marder's "The Myth of the Nullifying Jury, " found in the Spring 1999 edition of the Northwestern University Law Review, is a must-read. The article, which runs over 80 pages, is too large to summarize entirely. Here's a quick rundown.

First, Marder sets out three types of jury nullification.

First, a jury may nullify to avoid applying a law to a particular defendant. Second, a jury may nullify to avoid applying a law that it regards as bad. Third, a jury may nullify as a response to social conditions.

Second, Marder distinguishes the two competing views of jurors' responsibility to the law. In the first, which Marder calls the "conventional view,"

...the jury is supposed to find facts and apply the law. In some cases, this might be a mechanical operation; in others, the jury might have to work harder to decipher ambiguous terms. However, in both cases, the jury is supposed to apply the law consistent with the legislature's words and the judge's instructions. To the extent the jury does more than this, it is intruding upon the legislature's or judge's respective roles. This conception of the jury exists more in theory than in practice, but the theory has proven compelling to both judges and some academics, and it is this theory of the jury that judges convey to jurors throughout the trial.

Marder goes to great lengths to deconstruct this view, and the way it essentially dehumanizes the participants, ideally making them into fact-finding robots, dispassionate and utterly objective.

What is the alternative? A "process view," which situates the jury alongside the judge as an interpreter of the law.

This view recognizes that the jury does more than find facts or apply the law; inherent in all of the jury's activities is an interpretive role. The jury engages in interpretation whenever it is asked to find facts or apply a legal standard that is vague or ambiguous. In addition to its interpretive role, the jury also plays a political role; it provides feedback to other branches of government about when they are overstepping their own roles.

The implications are fairly straightforward. The "conventional view" tracks strongly with the Negative's position that jury nullification is unjust.

Under a conventional view of the jury, the three situations in which nullification can occur are all causes for concern. In each, the jury is usurping the responsibilities of another branch. The conventional account of the jury means that any time the jury does more than find facts or apply law, such as nullify, it is doing something harmful. The myth of the nullifying jury, as told by proponents of the conventional view, is that nullification is always harmful.

The "process view," on the other hand, squares with the Affirmative's advocacy.

Under a process view, however, the jury does more than just find facts and apply law; it also plays interpretive and political roles. Under this broader conception of the jury's roles, the three situations when nullification occurs provide more benefits than harms. In all three, though perhaps to a lesser extent in the third, nullification is consistent with the jury's broad role, and nullification enables the jury to provide valuable feedback to the legislature, executive, or judiciary.

There's much more that can be said about the merits of Marder's analysis. Luckily for you, the article is available in its entirety online.

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?