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tv   Kenneth Feinberg on the Future of Civil Jury Trials  CSPAN  September 7, 2015 2:31pm-3:37pm EDT

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the country wants to know what the government and the leader is doing. more questions there at the very back? >> thank you. i would like to complement your panelists for living history. you are part of this great american story. now i have a futuristic question. i would like to ask you all to bushnt -- do you see jeb as the next president, or his good friend hillary clinton as the next president? ed: maybe. [laughter] i think that jeb bush is an extraordinary man. he was always the bush that was assumed to someday be the president. we have got a very crowded field on our side. probably the best field of candidates from 1980. several very competent governors
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, several senators. some very articulate men and a this point. race at we probably have 20 candidates. for him to win, he's got to -- it's not going to get handed to him. he's got to run an effective campaign. i think that in the case of hillary clinton, it's a little bit different. if her name was bill clinton junior, she might be challenged. choose not being challenged at this point in time. i'm not the expert on democrats, but i don't think anyone will run against her with any significance. i think she will be the nominee. it could easily be a bush clinton campaign. at this point in time of my side it's too difficult to predict.
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julie: there have been a lot of focus groups and polls and stuff showing jeb bush having problems the early states, voters are hostile towards him. his name, his positions on common core and immigration and more. i don't think that he is a lock to get the republican nomination at all. i think it's a folly to try to predict this early. her disapproval ratings are going up as she gets more partisan. she has benefited from high job approval numbers from when she was secretary of state. i think that the democratic voters are going to wish that they had more choices. >> i think that hillary is likely to be the nominee, knows what happens in politics.
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republicans, i think the most formidable candidate would be jeb bush. he is closer to the center than the other candidates on the republican side. i think that this is a center country. i agree that jeb bush may not win. scott walker, who i think is basically an empty stew -- empty suit devoid of principles is a hell of a politician. if the conservative vote crystallizes around him, they could dispossess him of the nomination. off theng to pull people who have no platform whatsoever except i hate .verything
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he's clearly unqualified to be i would not support k-6, but he is the real deal. itre are a few other people is fun for us. other governors, from other states, they are not qualified. howard: as you may remember, i get my ass ickedkicked. [laughter] ron: the interesting thing about american politics, take sarah palin. the next day she had 300%. in this day and age today, we have 31 governors.
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i like john kasich every bit as much. ,o a certain extent the field the big important field, we will have a formidable candidate to run against mrs. clinton. to be continued. thanks to our panelists, thanks to you for coming. there are many more panels over the course of the day. i incurred everyone to attend as many as possible. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] [captions copyright national cable satellite corp. 2015]
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tonight, on "the communicators," this year c-span stopped by several technology fairs and spoke with researchers on the future of consumer technology. >> we have been building hope we call the farm data dashboard. we wanted to take this one-stop importantll of these data sources about agriculture and production within the united states. a lot of these people already exist. it's a disparate world in the online ether. we wanted to make it easy for anyone, from the public to 50 small farmers, all the way to
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engineers and professional developers to access the data and start using it in ways that would be powerful for them. >> in the future networks will be intelligent enough to receive the data that he send. fabricstressed out, i can sooth me with heat, vibrations, or anything i would want it to do. i will turn it on and hopefully it turns on here. each one of these is a module that provides vibration and he. >> what are we looking at here, these little modules? >> these are little microprocessors that actually tell these actuators to vibrate. here to givee folks a taste of who we are. one of our suppliers here is a company called eyepatch. an interesting story, it was a person out of new york who was a journalist.
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created andproduct he is now selling it on you can come to the sidewalk, get your idea created. eventually become a supplier along with others. >> i agree that it is a long way to go. you hear debates about robots taking over the world, becoming more intelligent than humans and so on. in a scientific way i think it is more optimistic. i wish we could build robots that smart. we are making a lot of headway. in recent years there has been a confluence of technologies. enabling robots to our smarter. far away from the smarts of human beings. smart enough to perform tasks on their own. >> watch "the communicators," .onight on c-span two
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>> tonight, mark cuban and bill clinton speak to graduates of a presidential scholars program created by several presidential foundations. here's a look at remarks from bill clinton on how presidents know when it is time to make a decision. clinton: knowing when it is time to decide is a big deal. you have to know, to answer that question, what all is going on and what kind of decision you are making. that is, if you make a mistake, is it irrevocable? if so, you may be ought to take some more time. but there are a lot of missed decisions on the scale of one to today,ed, 70% right better than the decision that is 100% right six months from now when the train left the station. , are theasked myself
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consequences irrevocable? give you one example. whenever we were getting ready to bomb somebody, sometimes my advisors would say -- you don't do this today, you look weak. you will look so week. i always said -- can i kill them tomorrow? [laughter] you are laughing, but think about this. i cannot bring them back to life tomorrow. if the answer is that i can kill them tomorrow, we are not weak. so let's do it today. on the other hand there are those decisions that you will literally paralyze yourself if you don't just go in and make. months, one hundred percent right, that's foolish. >> that is a portion of remarks from an event held earlier this summer at the george w. bush presidential library alice. -- in dallas. you can see the entire event
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tonight on c-span. from the boston globe, talking about the 2016 presidential campaigns and what to expect in the upcoming debates. after that, stephen dennis on the congressional agenda when the chamber's return on tuesday. and in 2016 federal spending, and upcoming visit by pope francis. plus your phone calls, facebook comments, and tweet. "washington journal" is live thursday. >> he was a not see. he was a concentration camp commandant -- nazi. concentration camp commandant. he was responsible for the murder of thousands of jews. on her lifeteege altering discovery that her grandfather was a concentration camp official.
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>> he was a tremendously cruel person. he was capable of -- he had two dogs. he trained them to tear a human apart. , there was aon when he that he felt killed people. you if something when thisre normal without aspect in your personality, it's very difficult to grasp. >> sunday night on "q&a. >> now, a look at the history and future of civil jury trials. we will hear from a panel of litigators was remarks from alternative resolution expert hannah feinberg on whether the right to a jury is disappearing
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in the u.s. justice system and why there is a current rise in victim compensation funds. this is a little more than one hour. >> welcome to the conversation about the disappearing civil jury trial. i have a great privilege of heading this wonderful institution. mr. rosen: which has a mandate from congress to disseminate information about the constitution on a nonpartisan basis. what we have the opportunity to do thanks to this wonderful do thanks to this wonderful program is to delve into a provision of the bill of rights that many of us are not familiar with. that is the seventh amendment. we are going to ask, why is it that the civil jury trial, which represented 20% of all trials in 1930, now represents only 2% of federal triers and less than 1% of state trials.
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it is a disappearing right. we were going to discuss why that happened. let's begin with a text from the constitution in begin with this beautiful new edition of the constitution from the national constitution center with a thrilling new introduction by yours truly and david rubenstein about the relationship between the constitution and the bill of rights. we will explain how the rights that were promised in the declaration are implicit in the constitution and work codified in the bill of rights. let's turn to the second amendment. the fact that i cannot do the seventh by hart suggests that it is less familiar to me. i can find it right here. here it is. in suits of common-law with a value shall exceed $20, -- this
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is one of the two places where the dollar amount is specified -- the right of trial by jury shall be preserved and no fact shall be otherwise re-examined in any court of the united states then according to the rules of common law. to begin our discussion, we have our honorary, one of the great lawyers of the united states and one of america's most passionate defenders of the civil jury trial, steve sussman. in addition to his extraordinary work as a litigator where he has represented plaintiffs and defendants. he has had the greatest of all civil triers of the past generation. he has created a program at nyu to explore the value of civil juries. what did the framers have in mind when they wrote those words? if you are a delegate at the
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constitution, would you argue that the same words should be inscribed? mr. susman: it is clear that the revolution and the constitution and the bill of rights were very much bound up with this idea of trial by jury. it is the only right -- not free speech, not carrying weapons, nothing, not equal protection, not to process. trial by jury is the only right mentioned both in the declaration of independence as a grievance that the king has deprived us, mentioned in
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article three of the constitution, and the subject of three of the first 10 amendments known as the bill of rights. amendment number five guarantees the right to a grand jury, six, the right to a jury trial in a criminal case. article seven, the right to a jury trial to be preserved in a civil case. it was all about jury trials. if you read the debates in the constitutional convention and the federalist papers, what you find is that the reason we have a bill of rights today at all is because our founding fathers who got together to write the constitution in 1787 did not include in the first go-around,
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a right to a civil jury trial. the anti-federalist southern states were very much opposed to even ratifying the constitution. unless the federalist promised that a bill of rights would be passed, which contained the right to a jury trial. so this was a strong tradition that goes back 800 years. for anglo-saxon people. the colonists and founders felt that this was important. they felt that juries were necessary to protect them from
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an overreaching central government, from corrupt or biased judges, from -- a lot of it was economics -- because the jurors -- the idea of jurors were that they were debtors -- protect debtors from paying creditors. there was a lot of that going on. so i just think that you have to have the history to know -- they were very concerned about their juries. every states constitution except two container right to jury by trial. between 1776 and 1787 container right to jury by trial. in civil cases. before we get rid of it, we need to think about what we are doing and consider whether this is a right that is maybe worth keeping.
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i think that your question is fair. if you are writing a constitution today, would you insert a constitutional right for trial by jury. i very much argue that, of course you would. the name of this program is truth founding and victim compensation. i think there is no better way to find the truth then to have a jury of 12 people, a cross section of community, diverse people, 12 years, 12 eyes, 12 hearts, 12 brains are better than one. sure, there are good judges and fair judges, but not all judges are good. when you keep in mind that in this country, two thirds of the judges are elected in partisan elections, it becomes important that we keep the jury to protect
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us and to compensate victims when there is some form of wrongdoing. all of the empirical research shows that almost -- almost without exception, judges who have tried jury trials think that the jury gets it right. lawyers who have lost jury trials think that the jury gets it right. even though you lose the case, you say, i deserve to lose. the entire mock trial jury simulation industry, where you bring in a group of citizens off the street and you present a case to them.
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that convinces me that the juries get it right. there, you can watch them actually deliberate. you watch them behind one-way glass deliberate. and when you see them deliberate and when you hear the reports that they give of their deliberations, they are very conscientious. the second thing i would say is that a cross section of people, you are much more likely to get somebody with expertise -- more expertise in everything but the law then you will from a single judge. you get lawyers on juries, accountants, economists, scientists, you get a very high quality of jury, particularly if you figure out how to make trials shorter which is something that the bar and bench has to figure out how to do.
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then you also -- juries are representative of the community, people are more willing to accept their verdicts. a jury gives a legitimacy. and jury also -- when you talk about truth finding -- truth finding involves who is telling the truth. juries are much better at identifying who is credible, who is honest, who is being decent and fair on the witness stand and judges. judges may be better in applying the law and that is their job under our system. juries are told he have to listen to the judge for the law, but the fax you find -- once you find those facts, no other court can second-guess you. that is an important -- our
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founders put a lot of faith in the ability of a group of citizens to find facts. the amendment says they are so good at doing it that no other court or jury can second-guess what the jury has found. there is a very important role that juries play. jury service is one of the highest manifestations of being a citizen. whenever any underprivileged or minority group has fought for its rights, whether it be blacks or women, the fight always begins with the right to serve on a jury. and that is funny. i mean, you can go to youtube and google jury service and say there is a lot of fun made it up people avoiding jury service with excuses, but in fact, the people who serve really do
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become better citizens. i suspect that the next supreme court case on same-sex -- whether you can discriminate against people because of their sexual preference, may well deal with whether a lawyer can exercise a challenge against a potential juror because they are homosexual. the law is very clear, you cannot do it on racial grounds or in gender grounds. so it is important. the empirical research done on that is that people who serve on juries are much more likely to vote than other people. they are much more likely to pay their taxes can other people. it makes them better citizens. and the final point i say is that, judges -- think about
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elected judges -- we live in a citizen's united world where judges get elected by raising money. there are no limits. there have been cases in this country where big corporate interests have stopped to buy supreme court justices. that doesn't cost much and it doesn't cost much to buy a trial judge. so that when you appear before them as a litigant, they remember who you are. i think to protect the average victim, you need to have a jury. you can't rely on a judge. the founding fathers believed that judges could be corrupted, bright. you know who the judge is an advance but you don't include the 12 jurors are.
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you cannot fix the jury. for those reasons, if i were writing a constitution today in this country, i would insert a right to trial by jury. mr. rosen: thank you for that superb opening statement. that deserves a round of applause. [laughter] [applause] it is my great pleasure to introduce bert ryan. he went on to one of the most distinguished careers as a constitutional litigator and advocate of our time. he has had recent victories in -- in important cases like the shelby county case where the court imposed limits on the voting rights act and the court has agreed to take up the case he is involved in. bert, s justiceusman -- justice susman made a case for civil juries, like the fourth
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amendment right that protects us against overreaching government and he said civil juries remain relevant because you have legitimacy, they are good at finding facts, and they are good for citizens who serve on it. i want to ask if you are at the constitutional convention, would you vote for the seventh amendment? mr. rein: just on the point of history, if you think about the way juries originated in england, they were in a world in which the king was absolute. he had absolute power, he appointed all officials including the judges. there was no independent judiciary. the only check on that was to
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ensure that groups of citizens -- particularly criminals -- could hold the authority to say, we know the facts, we have sworn to ascertain the facts, we are familiar with members of the community and people involved with the best ability to figure out what is true. to offset the absolute power of the king, you develop the jury. up to the revolution, the americas was under the jurisdiction of the king. and the king continues to assert absolute power. so the judiciary was not independent. and when we have the constitution, a separation of powers in which we have an independent judiciary. that makes a big difference in context. i think we cannot read the history is totally one-sided. you are in 1787, reacting to a past when one set of characteristics that may not be
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true today -- and i think i just say that as a prelude -- i don't think history commands us or counsels us to institute a seventh amendment if we didn't have one. i accept that we have one. in criminal cases, because you are sectioning people in bringing the weight of the community against them, i think the jury has a role in legitimizing criminal penalty. you shouldn't have to be punished unless there is a consensus that you committed the act. civil trials are different. they are varied. turning just to civil trials in leaving aside for the moment things like the fourth amendment -- in subpoena matters, judges decide them anyway so they are really not the protection of the jury.
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why should we not look at jury trials as the the all and end all? first of all, a macro issue. this system would break down. if you look at the number of disputes that get resolved outside the province of trial, that is almost a necessary element of our system. if we trial -- all of us and be sitting on juries continuously. it would become our occupation. society cannot afford it. there is a cost to the civil system. what are the costs? you have to bring in people to sit. many of these people being in are -- feel they are being ousted from their occupations and being disrupted in a field that it is an undue imposition and especially because we bring in many more people than ever
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sit on a jury. so many people spend time waiting around to see if they will be on a panel and whether they will be the petty jury and they don't come away with that positive feeling, they come away feeling that the $30 is no recompense for disrupting my life and then because of that we have to have procedures to command them to comment -- to chase them if they don't. all of this is not free. the system is not cost-free. it imposes substantial cost. it is not like when you can round up the peasants and serfs and say, come in and be a juror. that is one practical consideration. a jury trial imposes costs on the court system. you have to have people to bring in the panels, to ensure that people show up when called, you have to have the same judge sitting through the trial. he may not pay attention to the testimony but you should. you have all of the same costs that you have in the civil system which is prevalent all over the world except here -- maybe a little bit in australia and canada. we are unique in this. that is another cost that does matter. then, they are going to litigate cases anyway, they are going to
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have discovery no matter who judy cates it. -- judicates it. we have experts sitting around figuring out what clues you might have to how somebody may react. our theory is on the one hand it should be across section of community and they should bring the community wisdom, but all trial lawyers know you move heaven and earth to make sure the jury is a community of people who agree with you. so you have a preacher -- siege can get clues as to what kind of things may appeal. you have to push to see that you have people more favorable during a jury trial, you have tracking -- you get a group of people and pay them to listen to the same thing to tell you if it is going over well with the audience -- this is not cost-free. that is one reason people worry about a jury trial because you build up cost. so i think we cannot have a system where it is universal. it will work.
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it is impossible. if you have it in a can be -- if they find a class of cases in which the stakes are big enough and the clash over fact over what happened in the world is big enough -- how do you distinguish that? how to decide what goes to a jury? should it be in the hands of litigants? there may be a better way to sort out jury cases from nonjury cases. on the micro level, assuming here is the case -- is it better to give it to a judge or jury? i think the sources of controversy over that are you have the statistics that pretty much judges and juries sees a case the same way. if you are not getting any different results on the jury,
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why are we spending this money and time and effort to have one? it basically -- it is not universally true but it is true and 85% of cases. second, if you go to the jury, in colonial times, there is a theory called nullification. the jury could decide rule of law or not, we are not doing this. we are drawing the line. these are the king's rules. the classic case always taught the john peter singer trial. victims judges are about to put them away in the jury says, no. we are walking out of here. this is a nullification of the law. nullification is controversial in itself when you have an independent judiciary and when
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you have a legislator -- elected legislator and an elective executive it is a little bit different than having a king who rules by divine right. so to what extent juries decide cases on factors that you would not say are part of a legal framework but really part of their community? that is a tough question. you might not like it. but it is different and it does give an opportunity that if it doesn't exist in a system where judges at least are sworn to and will try to apply legal rules and say the results should be dictated by the rules -- now, i think that when you try a case, there are two kinds of facts that become involved. and particularly because of the many new remedies we have
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invented in the many new laws we have invented that are not just simple who done it? there are historic facts. what happened? there could be disputes. who said what to whom? who drove a car at what speed? these are historic and juries have common sense and probably would agree with judges most of the time about who is saying is credibly -- who is telling the truth, whose story holes together? we also have many cases dependent on what i would call predictive fax, they are
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theories about the world either scientific controversies or economic controversies and academically we have developed many new techniques to evaluate and now you call in 12 people who may or may not have ever heard of any of these techniques and you say, folks, you are going to see two economists up here with phd's -- they are not lying because they don't know anything except what the theories are and they are going to show you their regression models and you are going to figure out whether the prices be
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in charge were the result of a conspiracy or just the result of the way to markets work. and good luck. do we really think that you can get an evaluation of those kinds of issues? you have drug liability cases. the issue is a capable of causing a certain kind of injury and this is something that if you look at the development of drugs and the fda and this could need an expert of panels you can wait for years. but the jury is told, you have to decide. you cannot say, maybe. you are going to vote. it is a very different system and whether considering the kinds of questions we bring to court -- whether it makes sense to have juries's and other question. remember, at the time of the
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constitution, experts were not allowed to testify in court. they were not allowed. in the middle of the 1800s, they can and in the criminal process with handprints and footprints and you would need an export but they are now universalized -- almost no case starts without some kind of expert if he can get in and you know they become the kind of narrators of the story and people use them and quite effectively to do more than their expertise -- they are allowed to jog conclusions -- not conclusions of law -- but they are allowed to speak to issues so they become very influential -- they were not known at the time and whether you would see the system differently given the way trials are conducted -- i mean, i think that is another very difficult question. and you see judges grapple with those kinds of expert issues and find great difficulty. one other thing i think that leads to is the question of time. because when cases are tried people say, this is a deficiency, the judge does not decide at the moment. he goes back, he can look at the transcript, he can look at the exhibits, and if you need to think about it, he can take a month to think about it, sometimes more. he is not told, you are going to
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be locked up until you decide. juries are told basically you better decide or we are going to keep you locked up for a while and so that instantaneous kind of reaction is very good for sorting out conflicting versions of real events in the past may not be the way to sort out more difficult controversies that are theoretically dependent. the last thing i would say being the devil incarnate is what we are seeing is kind of an historic liberal pull and tell because at the time of the constitution, the conservative forces were trying to enforce his were not necessarily on the same side and what you are tugging between is the application of rules of law as a predominant way to decide controversies versus the application of human judgment, community consensus, and how to codify the law. if you have a seventh amendment, that is only partially true because you turn over to man -- and i don't mean this only men
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-- men, women, whoever -- the job and the opportunity to modify the application of law. so i think in that situation, i would not pass the seventh amendment as it stands today and i think very hard about how to determine whether there is and should be a class of cases in which it is amenable and also how the issues could be allocated between judges and juries because they always are. mr. rosen: thank you for that opening statement. a round of applause for justice rein. [applause] what a pleasure to introduce ken feinberg. he is the nation's leading mediator and champion of alternative dispute resolutions. he has been special master of the 9/11 victims fund and was appointed by attorney general ashcroft. he also administered the $20 billion fund created by british petroleum for victims of the spill. he assisted the virginia tech president. he has had more experience than anyone else in administering huge and complex alternatives to the civil jury system. you have heard the arguments on both sides. i want to ask first, tell us what it was like to administer the 9/11 victims fund. is something like the 9/11 victims fund or the bp compensation fund a plausible
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alternative to the jury system? mr. feinberg: these funds i administer are a precedent for nothing. you will see them as aberrations. the 9/11 fund created by congress 13 days after the attacks, if congress had waited two more weeks, it would not have created this type of fund. bp oil spill, bp walked into the white house, saw president obama, walked out, and announced, we will create a $20 billion fund. 20 billion to compensate all of the victims of the oil spill. i received 1.2 million claims from 50 states. alaska, 35 foreign countries, sweden, norway. build it and they will come.
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[applause] these programs are not a threat to the trials. they are not a precedent and it is important they not be a precedent. the 9/11 victims compensation fund was absolutely the right thing to do after those attacks. sound public policy. the country wanted to show the world, we take care of our own. it worked. 97% of all eligible families that lost a loved one in the world trade center, the airplanes, the pentagon came into the fund. taxpayer money. taxpayer money. don't ever do it again like that. you will never see it again. you should have read some of the e-mails i got during my administration of the 9/11 fund. my son died in oklahoma city,
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where is my check? dear mr. feinberg, i don't get it. my daughter died in the basement of the world trade center in the 1993 attacks. it was not just terrorism. explain something to me. last year, my wife saved three little girls from drowning in the mississippi river and then she drowned a heroine. where is my check? bad things happen to good people every day in this country and you do not have a 9/11 fund. there was no 9/11 fund after katrina. after tornadoes or forest fires. to delegate all of this authority, president bush, ken, i want you to do the 9/11 fund. no second-guessing, you decide. that is not the constitution. that is not checks and balances. president obama with the bp oil spill.
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great job, thank you. on behalf of the american people, you got out in 16 months, $6.5 billion, two people who suffered economic harm. all that was was a handshake between bp and the president. no laws, no regulations. that is not the constitution and that is not america. i get involved when policymakers decide, very rare. we have to think out-of-the-box. steve is right in a lot of what
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he says. the fact of the matter is, policymakers, i don't decide these programs. congress, the white house, general motors. let's set up a fund. they call me. they want to avoid the cost of litigation. they want to avoid the inefficiencies and delays of litigation. i am paying people in 60 days. they want the certainty. victims want certainty. these programs are all voluntary. 9/11, 97% took it. bp, 92%. general motors, 99% take the money.
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my final point, why do people come into these programs? mark mueller represented 350 people in 9/11. ask him. 97%, we must be doing something right when we set up these programs. just remember, i am not here to wage another view between bert and steve. i think the trial system, whether you like it or don't like it, it is here to stay. it is part of our heritage, part of the fabric of our country. if you think you are going to change the seventh amendment or if you think you are going to
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somehow as a matter of constitutional policy undercut the role of the jury in our society, you are dreaming. a better question for these two eminent law clerks, a better question for steve and bert, why aren't there more trials? that is not a constitutional convention question. what is wrong with our system today that more people don't take advantage of the seventh amendment? believe me, it is better studied, not in a law seminar, but in a history class. what i do is no threat to our legal system, to our lawyers, or to our judges. these are rare aberrations and they should be seen as aberrations, not to be
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encouraged. [applause] >> superb. steve, i think his question is excellent. the seventh amendment is here to stay. why is it so few people take advantage of it? tell us the history that led the numbers to decline. what would you do to increase the numbers and have more people take advantage of their seventh amendment rights? >> the trial lawyers and judges have done a very bad job. what is the competing dispute resolution? people will always have disputes. you will have a service, what is litigation competing with? whatever you are selling, if your product is too expensive, or not deemed to be safe, the
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competitor will win out. that is what happens with arbitration. arbitration is private dispute resolution. arbitration does not create any precedent, these are paid, private judges. the lawyers have been at fault and the judges because they have, in a way, hobbled juries in finding the truth. the jury is not supposed to read anything in the paper or look at what is on the internet. a jury of your peers were supposed to come to court
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because they knew something about the case. now we are looking for the lowest denominator on juries. trials go on forever so that the judges -- the judges allow them to go on for weeks. the consequence of that is the only person who serve our juries are unemployed or retired. that is not good. the jury instructions are totally incomprehensible. you cannot possibly -- a lawyer cannot sit there and listen. a lot of things -- i read this book written called "a trial by jury" by a princeton professor.
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the judge said he would not answer it. you don't get written instructions. you are not allowed to discuss the case. everything you can do to make it difficult for people to comprehend, we have done to our jury. there is a lot that is wrong with the jury. in any event, a lot of it originates with the business
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community. in the 1980's, they began thinking all litigation was bad. that is when we had lawsuit abuse reform. you cannot buy goods and services without agreeing to give up your right to a jury trial or any kind of trial. every time you click on the internet -- i tried to get in with my iphone this week to the itunes store. terms and conditions, check here if you want to go further. if you did not check, you did not get in. 73-page contract. [laughter] i am not kidding. no one can read that on an iphone or laptop. i am sure that i waved my right to a jury trial, limited myself to damages. the supreme court has blessed this. if you are a consumer, a
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patient, employee, every time you sign a contract, you give up your right to trial by jury, to access the public justice system. that needs to be changed. badly. it is really interesting. if you are a criminal or accused of a crime and want to give up a jury trial, the judge explains to you, you have the right to a trial and if you do not exercise, this might happen. do you understand? you speak english? makes the accused speak in court so we know there has been a voluntary knowing waiver under the right of the sixth amendment to a trial by jury. why don't we do that under the
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seventh amendment? we have the supreme court sanctioning these click through contracts. a study done by the consumer protection finance bureau, the results were published. 90% of the people who are subject to a mandatory arbitration clause are not even aware they are subject to that. the public does not understand that you are losing your right to trial by jury because you are voluntarily giving it up every time you buy anything and big business is overreaching, corporate america hiding behind these arbitration clauses to avoid facing a jury.
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a lot of reasons why we are losing. i think the arbitration is one reason. another problem is, eight of the nine supreme court justices have never tried a jury case. that is a lot different than in the day when i was clerking for the court justice. he was a trial lawyer in alabama. he wanted to protect the jury because he had done it before. all they see are these outlier verdicts, reported in the popular media. if we got rid of it, maybe we
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could save the seventh amendment. >> we have about 10 minutes left. there will be a vote at the end of our discussion and you will have to decide whether or not if you were a delegate, you would vote for the seventh amendment today. >> earlier, jury nullification was mentioned. this is an esoteric thing that could be used. >> i will describe it and i want you to amplify on a point you made. >> jury nullification was at the core. he cannot argue that he did not criticize the king. the greater the truth, the worse the offense. a jury refused to convict him because they did not think
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seditious libel was appropriate in a free society. a similar case, john wilkes is accused of printing anonymous pamphlets criticizing the king. he objects to the general warrant is invalid because it did not specify a specific place. a jury believes it violated the natural rights of the english people. those are two examples of jurors refusing to convict people. do you really believe given that history of our constitution, the fact that we are now a democracy and no longer ruled by a king means that civil juries should not retain the right to nullify what they consider unjust laws?
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>> the context of nullification, you have an arbitrary authority, you have had no voice in the shaping of those laws. suddenly, you are up against them. the king has said, i know what seditious libel is and i have proven it. the jury says, we don't agree with it. one of the things was, they might have a right to collect, but it is unfair.
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it is making law. why do you want 12 people arbitrarily chosen to make law? a little bit different. everybody wants to nullify something. you have a ruling about gay marriage, you have governors who say, not here. massive resistance to desegregation. those are nullification's. it is not so easy to support a theory of nullification when your alternative is a democratic process. steve talked about arbitration, these rulings are under a federal law. congress could change the federal arbitration act and say no more of this. the number of jury trials declining rapidly before the widespread application of
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arbitration. here is something that will get you mad, but it has nothing to do with it. >> have you considered how elimination of consensual arbitration might affect some parts of the economy? would you work as an investment advisor if you know a jury rather than arbitrators will decide whether a disappointed investor gets his or her money back? are you equally passionate when defending the right of defendants to jury trials in class-action settings once there has been a determination that there are common issues taken
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away from a jury and the defendant does not have a right to a jury trial? mr. susman: well, the answer -- i do not think it has that much of an effect on the economy. arbitration has only become big in the last decade. it is something rather new. the economy was doing fine. frankly, if parties are equal in bargaining, they can resolve similar dispute in any way they want, arbitration, arm wrestling, casting lots. i have a problem with -- when i want to buy something, i cannot even read, i go to check something off and give up my right.
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i don't really have too much of a problem with your investment advisor situation because -- i find an investment advisor that does not require me to do that. in any event, that is my view on that. >> back in the day, when he was a law professor, he developed a theory called economic theory of tort. i would like to hear from each of our speakers, your view of the interaction between the economic theory of tort and the right to a jury trial. >> do you want to explain what it is? >> [inaudible] >> let's start with steve.
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[laughter] mr. rein: i honestly don't know what that means. i think i have an idea. i did not go to yale. you are talking about what role does tort adjudication play in society. in some societies, let's say


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