On Pediatric Vaccines and Catholic Social Teaching

Determining whether, and when, to get one\u27s children vaccinated has become an increasingly controversial decision, often leaving parents fearful of making the “wrong” choice. Part of the challenge stems from the fact that what is rationally optimal for an individual is inherently at odds with the best outcome for the community, meaning that if everyone acted out of self-interest with respect to pediatric vaccines, communal health would suffer significantly. Given these tensions, the issue of pediatric vaccines benefits greatly from the nuanced assessment of Catholic social teaching. Specifically, the Pontifical Council for Justice and Peace\u27s “four permanent principles” of human dignity, the common good, subsidiarity, and solidarity highlight the issues involved and help parents navigate this significant medical choice with a more informed conscience and a greater sense of their moral responsibilities. The end result is a fruitful alignment between Catholic social teaching and ethics in ordinary life

Antidiscrimination Law Through a Sociolegal Lens

This Symposium invites reflection on whether the Anthropology of Law has “any space left for the content of rules” at a time when the concerns of legal anthropologists have largely shifted to processes, materials, and practices that are “adjacent to law.”1 Taking the jury system as an illustrative case, this Essay advocates for the relevance and value of the anthropological study of rules, their content, and their effects. Looking in particular at antidiscrimination rules derived from Batson v. Kentucky,2 decided in 1986, it argues that a sociolegal, ethnographic approach to how lawyers perpetuate discrimination in jury selection offers insight into everyday legal practice that is critical to enacting impactful jury reform—that is, to making better rules. Part I of this Essay provides background on the Batson doctrine with attention to its misguided aspiration to race neutrality and emphasis on racial animus as the cause of disparate empanelment. Part II shows how ethnography leads to a more sophisticated, empirically grounded understanding of these issues, casting new light on racial and other forms of exclusion, including exclusion based on socioeconomic status and previous contact with the legal system. Part III makes the case that sociolegal approaches to jury selection are invaluable for illuminating the effects of, and reformative pathways for, antidiscrimination law

Prosecuting in the Shadow of the Jury

This Article offers an unprecedented empirical window into prosecutorial discretion, drawing on research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make commonsense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants, and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that imagined jurors serve as an ethical resource for prosecutors. Part I reviews contemporary legal and interdisciplinary research on the declining number of jury trials and prosecutorial discretion in the United States. Part II describes the ethnographic research method deployed in this case study. Part III presents the empirical findings of this study with attention to how hypothetical jurors inform prosecutors’ evaluations of their cases, evidence, investigations, and plea agreement discussions. Part IV considers several explanations for hypothetical jurors’ perceived relevance to prosecutors’ work beyond their instrumental and strategic value. Part V concludes that the United States Attorney’s Office that is the subject of this study models the democratizing potential of lay decision-makers, even in hypothetical form. This finding offers a powerful rationale for fortifying the United States jury system and brings a novel perspective to the study of prosecutorial ethics

With Jurors in Mind: An Ethnographic Study of Prosecutors’ Narratives

This article focuses on prosecutors’ practices of drafting, critiquing and revising opening and closing statements for trial. Based on the observation of their real-time collaborative work, it argues that prosecutors’ concerns that they might be perceived as incredible or overzealous have substantive and structural impacts on their case preparation. In the process of commenting on evidence and witnesses and developing their authorial voices, prosecutors give definition to character traits and values they view as central to their jobs

Religious Convictions

The Anglo-American jury emerged at a time when legal and religious conceptions of justice were entwined. Today, however, though the American public remains comparatively religious, the country’s legal system draws a distinction between legal and religious modes of determining culpability and passing judgment. This Article examines the doctrine that governs the place of religious belief and practice in U.S. jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the Batson antidiscrimination doctrine has given these beliefs and practices an ambiguous status. On the one hand, judges aim to protect prospective religious jurors from discrimination. On the other, they seek to reinforce the primacy of a secular legal perspective on justice—even if it conflicts with a prospective juror’s religious convictions and the broader imperative to build inclusive juries. The open question is how legal actors—both judges and lawyers—should navigate the uncertain position of religion in voir dire to build juries. This Article draws on original empirical research with judges and lawyers to show that the treatment of religiosity in today’s legal system is strikingly inconsistent, guided by biases and misunderstandings of the particular features of various religious traditions. To address this arbitrary treatment of religion, this Article outlines a new approach to navigating religious convictions in jury selection proceedings. Special attention is paid to preventing both the exclusion and the empanelment of jurors with specific religious commitments to gain a strategic advantage. This Article concludes by making the case that insofar as the legitimacy of the U.S. jury system hinges on the inclusive involvement of a diverse—and diversely religious—public, it must find a way to reconcile religious convictions with lay participation

The Character of Jury Exclusion

Encounters with the legal system are unevenly distributed throughout the American population, with Black and poor citizens targeted as disparate subjects of surveillance, arrest, and criminal conviction. At the same time, these encounters, as well as a stated belief in the unfairness of the legal system, are commonly viewed as legitimate grounds for excusal from jury service. This follows from an understanding of juror bias that assumes that people with negative experiences with legal actors—police and prosecutors, for example—will be less likely to trust and more likely to discount the contributions of those actors within the context of the jury trial. In practice, however, conclusory judgment of jurors’ presumed partiality in these cases does not reduce bias but instead reproduces it. Dismissing jurors with previous contact with—and negative experiences with—the legal system diminishes the diversity of our juries and contributes to the entrenchment of structural bias skewed along racial and socio- economic lines. This Article elucidates this problem and outlines reform. It proposes the application of an evidentiary objection to the jury selection context, drawing on the principles of Federal Rule of Evidence 404(a)’s character propensity prohibition. By introducing a character propensity trial objection to voir dire, lawyers would gain a tool—one that complements but goes beyond the Batson challenge—to prevent the imputing of unfounded yet disqualifying character traits to otherwise eligible prospective jurors. In making the case for this reform, the Article demonstrates how targeting judicial discretion, rather than juror bias, can curtail the use of seemingly innocuous juror challenges—and with them, a source of perhaps unintended but no less pernicious exclusion from the jury system

The Imagined Juror: How Hypothetical Juries Influence Federal Prosecutors

Examines the outsized influence of jurors on prosecutorial discretionThanks to television and popular media, the jury is deeply embedded in the American public’s imagination of the legal system. For the country’s federal prosecutors, however, jurors have become an increasingly rare sight. Today, in fact, less than 2% of their cases will proceed to an actual jury trial. And yet, when federal prosecutors describe their jobs and what the profession means to them, the jury is a central theme.Anna Offit’s The Imagined Juror examines the counterintuitive importance of jurors in federal prosecutors’ work at a moment when jury trials are statistically in decline. Drawing on extensive field research among federal prosecutors, the book represents “the first ethnographic study of US attorneys,” according to legal scholar Annelise Riles. It describes a world of legal practice in which jurors are frequently summoned—as make-believe audiences for proposed arguments, hypothetical evaluators of evidence, and invented decision-makers who would work together to reach a verdict. Even the question of moving forward with a prosecution often hinges on how federal prosecutors assume a jury will react to elements of the case—an exercise where the perspectives of the public are imagined and incorporated into every stage of trial preparation.Based on these findings, Offit argues that the decreasing number of jury trials at the federal level has not eliminated the influence of the jury but altered it. As imaginary figures, jurors continue to play an important and understudied role in shaping the work and professional identities of federal prosecutors. At the same time, imaginary jurors are not real jurors, and prosecutors at times caricature the public by leaning on stereotypes or preconceived and simplistic ideas about how laypeople think. Imagined jurors, it turns out, are a critical, if flawed, resource for introducing lay perspective into the legal process. As Offit shows, recentering laypeople and achieving the democratic promise of our legal system will require renewed commitment to the jury trial and juries that reflect the diversity of the American public.https://scholar.smu.edu/facbooks/1058/thumbnail.jp

Reimagining the Inclusive Jury

At the height of the COVID-19 pandemic, everyday life for many Americans was upended. And yet, the jury trial remained viable — even vital. Faced with an era-defining public health disaster, courts innovated, embracing novel technologies and techniques to reimagine where and how justice might be made. But why did it take a pandemic to spur this kind of institutional creativity? Prior to the outbreak of COVID-19, people who were otherwise eligible to participate as jurors were routinely — and uncontroversially — struck or exempted from service due to limited mobility, vision and hearing loss, and caregiving responsibilities. Recent experience with hybrid and fully-remote trial formats shows that it is possible to include more of these prospective jurors in our jury system. Further, the drawbacks to using such innovations to accommodate individual jurors on a case-by-case basis are essentially nonexistent: successful hybrid and fully-remote proceedings deployed widely available digital technologies to offer effective, low-cost tools for jury trials in circumstances where some (or all) jurors could not be present physically. This Article argues that some of the extraordinary trial modifications that emerged as a result of the pandemic should not disappear with decreasing infection numbers. Rather, we should embrace the momentum of the past few years and ask how new technologies and techniques might be used to eliminate entrenched forms of juror exclusion and discrimination. Toward that end, this Article does four things. First, it examines the state of disability and caregiving-based exclusion in the United States, highlighting the shortcomings of both current protections and accommodations. Second, it reviews modifications to jury trials made during the pandemic, discussing five key innovations that made these trials successful: distributed participation, virtual private spaces, equipment provision, phasing, and livestreaming. Third, it shows how the incorporation of one or more of these innovations into post-pandemic trials would significantly lower extant barriers to jury service. Finally, it addresses potential concerns about modifying the jury trial — both constitutional and logistical — and reflects on the forms of exclusion that would remain even in the wake of creating a more inclusive trial

The Character of Jury Exclusion

Encounters with the legal system are unevenly distributed throughout the American population, with Black and poor citizens targeted as disparate subjects of surveillance, arrest, and criminal conviction. At the same time, these encounters, as well as a stated belief in the unfairness of the legal system, are commonly viewed as legitimate grounds for excusal from jury service. This follows from an understanding of juror bias that assumes that people with negative experiences with legal actors—police and prosecutors, for example—will be less likely to trust and more likely to discount the contributions of those actors within the context of the jury trial. In practice, however, conclusory judgment of jurors’ presumed partiality in these cases does not reduce bias but instead reproduces it. Dismissing jurors with previous contact with— and negative experiences with— the legal system diminishes the diversity of our juries and contributes to the entrenchment of structural bias skewed along racial and socioeconomic lines.This Article elucidates this problem and outlines reform. It proposes the application of an evidentiary objection to the jury selection context, drawing on the principles of Federal Rule of Evidence 404(a)’s character propensity prohibition. By introducing a character propensity trial objection to voir dire, lawyers would gain a tool—one that complements but goes beyond the Batson challenge—to prevent the imputing of unfounded yet disqualifying character traits to otherwise eligible prospective jurors. In making the case for this reform, the Article demonstrates how targeting judicial discretion, rather than juror bias, can curtail the use of seemingly innocuous juror challenges—and with them, a source of perhaps unintended but no less pernicious exclusion from the jury system