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Univ. of San Diego School of Law

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Wednesday, May 28, 2014

Pardo on Group Agency and Legal Proof

Pardo michaelMichael S. Pardo (University of Alabama School of Law) has posted Group Agency and Legal Proof; or, Why the Jury is an 'It' (William & Mary Law Review, Vol. 56, 2015, Forthcoming) on SSRN. Here is the abstract:

Jurors decide whether certain facts have been proven, according to the applicable legal standards. What is the relationship between the jury, as a collective decision-making body, on one hand, and the views of individual jurors, on the other? Is the jury merely the sum total of the individual views of its members? Or do juries possess properties and characteristics of agency (for example, beliefs, knowledge, preferences, intentions, plans, and actions) that are in some sense distinct from those of its members? This Article explores these questions and defends a conception of the jury as a group agent, with agency that may differ from that of its members.



The Article then argues that this conception of the jury contains important implications for law and legal proof. These implications are both theoretical and practical. On the theoretical side, recent debates in evidence law have focused on whether legal proof is probabilistic or explanatory in nature. These debates, however, have largely assumed a single, unified fact-finder (whether jury or judge). The group-level perspective reveals new conceptual problems for the probabilistic theory that are alleviated by the explanatory theory; it thus provides further vindication for the explanatory account. On the practical side, the conception of the jury as a group agent, coupled with the explanatory account of proof, clarifies doctrinal issues on whether and when jurors must agree on factual details; in both criminal and civil cases, these issues have caused considerable confusion and uncertainty for courts and commentators.

http://lawprofessors.typepad.com/crimprof_blog/2014/05/pardo-on-group-agency-and-legal-proof.html

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