Should we be worried that the concept of trust is increasingly used when we assess non-human agents and artefacts, say robots and AI systems? Whilst some authors have developed explanations of the concept of trust with a view to accounting for trust in AI systems and other non-agents, others have rejected the idea that we should extend trust in this way. The article advances this debate by bringing insights from conceptual engineering to bear on this issue. After setting up a (...) target concept of trust in terms of four functional desiderata (trust-reliance distinction, explanatory strength, tracking affective responses, and accounting for distrust), I analyze how agential vs. non-agential accounts can satisfy these. A final section investigates how ‘non-ideal’ circumstances—that is, circumstances where the manifest and operative concept use diverge amongst concept users—affect our choice about which rendering of trust is to be preferred. I suggest that some prominent arguments against extending the language of trust to non-agents are not decisive and reflect on an important oversight in the current debate, namely a failure to address how narrower, agent-centred accounts curtail our ability to distrust non-agents. (shrink)

Under the independence and competence assumptions of Condorcet’s classical jury model, the probability of a correct majority decision converges to certainty as the jury size increases, a seemingly unrealistic result. Using Bayesian networks, we argue that the model’s independence assumption requires that the state of the world (guilty or not guilty) is the latest common cause of all jurors’ votes. But often – arguably in all courtroom cases and in many expert panels – the latest such common cause (...) is a shared ‘body of evidence’ observed by the jurors. In the corresponding Bayesian network, the votes are direct descendants not of the state of the world, but of the body of evidence, which in turn is a direct descendant of the state of the world. We develop a model of jury decisions based on this Bayesian network. Our model permits the possibility of misleading evidence, even for a maximally competent observer, which cannot easily be accommodated in the classical model. We prove that (i) the probability of a correct majority verdict converges to the probability that the body of evidence is not misleading, a value typically below 1; (ii) depending on the required threshold of ‘no reasonable doubt’, it may be impossible, even in an arbitrarily large jury, to establish guilt of a defendant ‘beyond any reasonable doubt’. (shrink)

This paper studies the three kinds of conservativeness in a jury decision-making structure: the voting rule, the threshold of reasonable doubt, and the legal information system. In a model of simultaneous voting, Feddersen and Pesendorfer (The American Political Science Review, 92(1), 23-35, 1998) argue that the unanimity rule is the worst-performing voting rule because voters with strategic behaviour mitigate the bias brought about by the voting rule. If this bias can be offset by an opposing (less conservative) bias in (...) the legal information system, we would be able to restore the rationality of informative voting. The new informative equilibrium is strictly better than the original strategic equilibrium in terms of ex post error probability. When a strategic equilibrium survives, we can lower the probability of convicted defendant being innocent by making the information system more informative or by forming a jury with a higher (more conservative) threshold of reasonable doubt. (shrink)

McCullough et al. propose an evolved cognitive revenge system which imposes retaliatory costs on aggressors. They distinguish between this and other forms of punishment (e.g., those administered by judges) which are not underpinned by a specifically designed evolutionary mechanism. Here we outline mechanisms and circumstances through which the revenge system might nonetheless infiltrate decision-making within the criminal justice system.

Jury theorems are mathematical theorems about the ability of collectives to make correct decisions. Several jury theorems carry the optimistic message that, in suitable circumstances, ‘crowds are wise’: many individuals together (using, for instance, majority voting) tend to make good decisions, outperforming fewer or just one individual. Jury theorems form the technical core of epistemic arguments for democracy, and provide probabilistic tools for reasoning about the epistemic quality of collective decisions. The popularity of (...) class='Hi'>jury theorems spans across various disciplines such as economics, political science, philosophy, and computer science. This entry reviews and critically assesses a variety of jury theorems. It first discusses Condorcet's initial jury theorem, and then progressively introduces jury theorems with more appropriate premises and conclusions. It explains the philosophical foundations, and relates jury theorems to diversity, deliberation, shared evidence, shared perspectives, and other phenomena. It finally connects jury theorems to their historical background and to democratic theory, social epistemology, and social choice theory. (shrink)

Trial by jury is a fundamental feature of democratic governance. But what form should jury decision-making take? I argue against the status quo system in which juries are encouraged and even required to engage in group deliberation as a means to reaching a decision. Jury deliberation is problematic for both theoretical and empirical reasons. On the theoretical front, deliberation destroys the independence of jurors’ judgments that is needed for certain attractive theoretical results. On the empirical front, we (...) have evidence from both legal and non-legal contexts that group deliberation often leads to group judgments that are worse in a number of respects than judgments generated by non-interactional methods of judgment aggregation. Finally, I examine some possible alternatives to free-wheeling jury deliberation, including the constrained and structured deliberation embodied in the DELPHI method, voting, and averaging of probabilistic judgments. (shrink)

In a homogeneous jury, in which each vote is correct with the same probability, and each pair of votes correlates with the same correlation coefficient, there exists a correlation-robust voting quota, such that the probability of a correct verdict is independent of the correlation coefficient. For positive correlation, an increase in the correlation coefficient decreases the probability of a correct verdict for any voting rule below the correlation-robust quota, and increases that probability for any above the correlation-robust quota. The (...) jury may be less competent under the correlation-robust rule than under simple majority rule and less competent under simple majority rule than a single juror alone. The jury is always less competent than a single juror under unanimity rule. (shrink)

This chapter contains sections titled: Attribution Bias in the Trials of Accused Serial Killers Introduction The Case of Doug Clark Situationism and Destructive Behavior Attribution Biases Seeing Ghosts “Ewww…Guilty!” “You people are all…” “Aren't you the guy who…?” Doug Clark Again Conclusion.

Suppose that a majority of jurors decide that a defendant is guilty (or not), and we want to know the likelihood that they reached the correct verdict. The French philosopher Marquis de Condorcet (1743-1794) showed that we can get a mathematically precise answer, a result known as the “Condorcet Jury Theorem.” Condorcet’s theorem isn’t just about juries, though; it’s about collective decision-making in general. As a result, some philosophers have used his theorem to argue for democratic forms of government. (...) This essay explains Condorcet’s theorem and how philosophers have used it as an argument for democracy. (shrink)

The purpose of this paper is to illustrate, formally, an ambiguity in the exercise of political influence. To wit: A voter might exert influence with an eye toward maximizing the probability that the political system (1) obtains the correct (e.g. just) outcome, or (2) obtains the outcome that he judges to be correct (just). And these are two very different things. A variant of Condorcet's Jury Theorem which incorporates the effect of influence on group competence and interdependence is developed. (...) Analytic and numerical results are obtained, the most important of which is that it is never optimal--from the point-of-view of collective accuracy--for a voter to exert influence without limit. He ought to either refrain from influencing other voters or else exert a finite amount of influence, depending on circumstance. Philosophical lessons are drawn from the model, to include a solution to Wollheim's "Paradox in the Theory of Democracy". (shrink)

Panels, boards, and committees throughout society evaluate all manner of things by grading them, first individually and then collectively. Thus risks are prioritized, research proposals are funded, and candidates are shortlisted for jobs. It is not usual to pick winners in political elections by grading the candidates, but there are examples in history. This article takes up a question about the quality of judgments and decisions made by grading: under which conditions are they likely to be right? An answer (...) comes in the form of a jury theorem for median grading. Here, the collective grade for a thing is the median of its individually assigned grades—the one in the middle, when all of them are listed from "top" to "bottom." A second objective of this article is to suggest a solution to problems of voter ignorance in democracies. The idea is for democratic assemblies to use voting methods that make more of people's limited knowledge than do commonly used methods, such as majority voting. It turns out that in theory anyway, and perhaps also in practice, median grading can enable unenlightened assemblies to “track the truth”—even as majority voting would run them off the rails. (shrink)

Criminal juries make decisions of great importance. A key criticism of juries is that they are unreliable in a multitude of ways, from exhibiting racial or gendered biases, to misunderstanding their role, to engaging in impropriety such as internet research. Recently, some have even claimed that the use of juries creates injustice on a large-scale, as a cause of low conviction rates for sexual criminality. Unfortunately, empirical research into jury deliberation is undermined by the fact that researchers are (...) unable to study live juries. The indirect sources of evidence used by researchers suffer from various problems, the most important of which is dubious levels of ecological validity. Real jury research—studying live jury deliberation—is controversial. However, as I argue, the objections to it are unconvincing. There is in fact a moral imperative to facilitate real jury research. (shrink)

Condorcet's famous jury theorem reaches an optimistic conclusion on the correctness of majority decisions, based on two controversial premises about voters: they are competent and vote independently, in a technical sense. I carefully analyse these premises and show that: whether a premise is justi…ed depends on the notion of probability considered; none of the notions renders both premises simultaneously justi…ed. Under the perhaps most interesting notions, the independence assumption should be weakened.

We all make decisions, sometimes dozens in the course of a day. This paper is about what is involved in this activity. It's my contention that the ability to deliberate, to weigh different courses of action, and then to decide on one of them, is a distinctively human activity, or at least an activity which sets man and the higher animals apart from other creatures. It is as much decisio as ratio that constitutes the distinguishing mark of human beings. (...) Homo may not always be rationalis, but he is always decidens.The paper is about practical decision, although there is also another important kind of decision that I won't discuss, namely cognitive decision. The difference is roughly that which distinguishes the function of a jury from that of a judge, at least in jury trials. The jury's job is to arrive at an answer to the question: guilty or not guilty? This is a cognitive decision, a decision that, on the basis of the evidence, such-and-such is the case. The judge, apprized of the jury's cognitive decision, makes the practical decision to sentence the guilty party to 20 years. On some other occasion, I hope to be able to say something about cognitive decision, as well as about a third kind of decision named value decision. (shrink)

We examine collective decision-making in a jury voting game under the unanimity rule when voters have ambiguous beliefs. Unlike in existing studies (Ellis in Theoretical Economics 11:865–895, 2016; Fabrizi et al., in: AUT Economics Working Paper, 2021; Ryan in Theory and Decision 90:543–577, 2021), the locus of ambiguity is the likelihood function (signal precision) rather than the prior. This significantly alters the properties of symmetric equilibria. While prior ambiguity may induce multiple equilibria (Fabrizi et al., in: AUT Economics Working (...) Paper, 2021; Ryan in Theory and Decision 90:543–577, 2021) we show that, under likelihood ambiguity, there exists a unique non-trivial symmetric responsive equilibrium that takes the same form as in the absence of ambiguity (Feddersen and Pesendorfer in The American Political Science Review 92:23–35, 1998). Moreover, likelihood ambiguity partially offsets the pernicious effects of pivotality on decision quality: the frequency of Type I error (convicting the innocent) is typically lower than in the absence of ambiguity. (shrink)

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for (...) the institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata. (shrink)

Does it matter that almost all juries in England and Wales are all-White? Does it matter even if this result is the unintended and undesired result of otherwise acceptable ways of choosing juries? Finally, does it matter that almost all juries are all-White if this has no adverse effect on the treatment of non-White defendants and victims of crime? According to Cheryl Thomas, there is no injustice in a system of jury selection which predictably results in juries with no (...) minority members so long as this result is not deliberate, and does not adversely affect the treatment of minority defendants and victims of crime. My view is different. In and of itself, I believe, something is wrong with a system of jury selection that predictably results in all-White juries in a diverse society, such as our own. Absent reason to believe that we lack a better alternative to current modes of jury selection, a commitment to democratic government and to the equality of citizens – or so I will argue – condemns existing arrangements as unjust, whether or not they have adverse effects on jury decisions, or on the ways in which our society approaches issues of race and crime. (shrink)

Democratic decision-making is often defended on grounds of the ‘wisdom of crowds’: decisions are more likely to be correct if they are based on many independent opinions, so a typical argument in social epistemology. But what does it mean to have independent opinions? Opinions can be probabilistically dependent even if individuals form their opinion in causal isolation from each other. We distinguish four probabilistic notions of opinion independence. Which of them holds depends on how individuals are causally affected by (...) environmental factors such as commonly perceived evidence. In a general theorem, we identify causal conditions guaranteeing each kind of opinion independence. These results have implications for whether and how ‘wisdom of crowds’ arguments are possible, and how truth-conducive institutions can be designed. (shrink)

The agents of a jury have to decide between a good and a bad option through simple majority voting. In this paper the jury consists of N independent couples. Each couple consists of two correlated agents of the same competence level. Different couples may have different competence levels. In addition, each agent is assumed to be better than completely random guessing. We prove tight lower and upper bounds for the quality of the majority decision. The lower bound is (...) the same as the competence of majority voting of N independent agents. The upper bound cases for negatively correlated couples can be much better than the value for 2N\documentclass[12pt]{minimal} \usepackage{amsmath} \usepackage{wasysym} \usepackage{amsfonts} \usepackage{amssymb} \usepackage{amsbsy} \usepackage{mathrsfs} \usepackage{upgreek} \setlength{\oddsidemargin}{-69pt} \begin{document}$$2 \, N$$\end{document} independent agents. (shrink)

The Condorcet jury theorem (CJT) is based on the assumption of homogeneous voters who imperfectly know the correct policy. We reassess the validity of the CJT when voters are homogeneous and each knows the correct decision with an average probability of more than a half.

Americans believe in the criminal jury as a vehicle of democratic participation as well as a bulwark against state oppression. Racial and gender discrimination poses a threat to the ideal of democratic participation. The vehicle for discrimination is the use of peremptory challenges against candidates for the jury. Since 1986 the Supreme Court has tried to work out rules restricting the use of peremptory challenges. One problem has been the extending application of the principle of non-discrimination to tactical (...) decisions by defense counsel. Another has been the determination of the groups that will be protected under the principle of non-discrimination. The articles criticizes the Supreme Court's ignoring the kind of considerations that motivate lawyers in picking a jury. In the end the conflict is one between egalitarian ambitions and protecting the liberty of the accused. Amerikaner sehen in Geschworenen sowohl Träger demokratischer Mitwirkung als auch ein Bollwerk gegen staatliche Unterdrükung. Diskriminierung in bezug auf Rasse oder Geschlecht stellt eine Bedrohung für das Ideal demokratischer Mitwirkung dar. Ein Einfallstor für Diskriminierung sind die "peremptory challenges" gegen Kandidaten für das Geschworenenamt, das ist das Recht u. a. der Verteidigung, solche Kandidaten ohne Angabe von Gründen rechtswirksam abzulehnen. Seit 1986 hat der Supreme Court versucht, Regeln zu entwickeln, die den Gebrauch der "peremptory challenges" einschränken. Dadurch entstehen Probleme. Ein Problem ergibt sich aus der zunehmenden Anwendung des Diskriminierungsverbots auf taktische Entscheidungen der Verteidigung, ein anderes aus der Bestimmung der Gruppen, die vom Diskriminierungsverbot geschützt sein sollen. Der vorliegende Beitrag kritisiert, daß der Supreme Court es nicht berücksichtigt, von welchen Überlegungen Anwälte sich bei der Auswahl von Geschworenen leiten lassen. Letztendlich handelt es sich um einen Zielkonflikt zwischen egalitären Bestrebungen und dem Versuch, die Rechte des Angeklagten zu sichern. (shrink)

On April 7,2000 a Florida jury ordered the tobacco industry to pay $12.7 million in compensatory damages to three former smokers who were chosen to represent hundreds of thousands of Florida residents in an unprecedented class action lawsuit. The decision not only marks the first time that a jury has found on behalf of smokers in a class action lawsuit, it also sets the stage for a huge punitive damage award against the industry. The awards followed a finding (...) by the same jury last July that the cigarette manufacturers have “acted with reckless disregard” and “engaged in extreme and outrageous conduct” while conspiring to mislead the public about the health risks of smoking. These previous findings make it likely that there will be punitive damages levied against the tobacco companies when the jury reconvenes in May. (shrink)

On April 7,2000 a Florida jury ordered the tobacco industry to pay $12.7 million in compensatory damages to three former smokers who were chosen to represent hundreds of thousands of Florida residents in an unprecedented class action lawsuit. The decision not only marks the first time that a jury has found on behalf of smokers in a class action lawsuit, it also sets the stage for a huge punitive damage award against the industry. The awards followed a finding (...) by the same jury last July that the cigarette manufacturers have “acted with reckless disregard” and “engaged in extreme and outrageous conduct” while conspiring to mislead the public about the health risks of smoking. These previous findings make it likely that there will be punitive damages levied against the tobacco companies when the jury reconvenes in May. (shrink)

In Ruling Majorities and Reasoning Pluralities, Professor Saul Levmore explores the “division of labor” between the various thresholds of agreement required for collective action—supermajority, simple majority, or plurality rule. His particular emphasis is on the choice between the last two options. To improve our understanding of this choice in various settings, Professor Levmore considers the relationship between two well-known contributions to the study of group decisionmaking, namely, the Condorcet Jury Theorem and the Condorcet Criterion, which have not generally been (...) treated together. This essay explores the relationship between these two insights in the context of judicial decisionmaking. Counterintuitively, the essay demonstrates that while the Condorcet Criterion continues to hold great promise as a tool of decision in en banc appellate courts, the Condorcet Jury Theorem is most appealing in judicial contexts that appear less collegial and thus less like a jury. In contexts in which jurists engage in deliberation and in which they anticipate that their outputs will have precedential effect, the Jury Theorem has little if any role to play. In contrast, the Theorem might prove more useful in evaluating low-level judicial outputs or decisions that otherwise are not expected to be treated as precedent. Thus, common law trial court decisions and civil law court decisions are more likely to be useful benchmarks in a Condorcet Jury Theorem analysis. It is because such courts do not anticipate that their decisions will have the force of precedent that they are more likely to be derived from governing legal texts, and thus more prone to characterizations of accuracy, than are judicial outputs that are driven by policy concerns and are generated with the understanding that they will be treated as precedent. (shrink)

This article offers a justification for the continued use of jury trials. I shall critically examine the ability of juries to render just verdicts, judicial impartiality, and judicial transparency. My contention is that the judicial system that best satisfies these values is most preferable. Of course, these three values are not the only factors relevant for consideration. Empirical evidence demonstrates that juries foster both democratic participation and public legitimation of legal decisions regarding the most serious cases. Nevertheless, juries (...) are costly and, therefore, economically less efficient than competing modes of trial. I do not argue that all human beings possess an inalienable legal right to be tried by a jury. However, it is my hope that this analysis will make clear what we might gain or lose when we propose jury reforms. (shrink)

Prior studies have shown a general preference among citizens for juries over judges. Researchers, however, have not considered whether race and ethnicity modify this preference. We hypothesized that minorities (African-Americans, Hispanics), who generally express less trust in the legal system, may also express less trust in juries than non-Hispanic whites. We asked a representative sample of 1,465 residents of Texas to state whether they would prefer a jury or a judge to be the decision maker in four hypothetical circumstances. (...) Consistent with expectations, non-Hispanic whites favored juries over judges, particularly if they imagined themselves as a defendant in a criminal trial. By comparison, although African-Americans and some Hispanics generally favored juries, they showed a much weaker set of jury preferences. African Americans had markedly lower support for the civil jury, but support was higher among minorities with prior jury service. Among Hispanics, respondents who took the survey in Spanish typically preferred a judge to make legal decisions. We consider the implications of our findings for trust in the jury system and trust in community members as decision makers. (shrink)

In this paper, I take seriously calls for public engagement in human genome editing decision-making by endorsing the convening of a “Citizens Jury” in conjunction with the International Commission on the Clinical Use of Human Germline Genome Editing’s next summit scheduled for March 6–8, 2023. This institutional modification promises a more inclusive, deliberative, and impactful form of engagement than standard bioethics engagement opportunities, such as comment periods, by serving both normative and political purposes in the quest to offer moral (...) guidance on gene editing. In examining evidence from the Australian Citizens’ Jury on Genome Editing convened in 2021, I argue that Citizens’ Juries should work in tandem with governing institutions to preserve the role of expertise while ensuring that the diverse views of the public are incorporated into their final reports as well. First, early inclusivity allows “the people” to hold agenda setting power through helping to set resource priorities. This also makes a downstream deliberative event, such as the called for Global Citizens’ Assembly, both more likely to occur and more influential on policy. Second, Jury’s diverse composition promises substantive contributions to the Commission’s work. Third, Citizens’ Juries could help to cultivate the Commission’s trustworthiness. (shrink)

This second volume of ReConFort, published open access, addresses the decisive role of constitutional normativity, and focuses on discourses concerning the legal role of constitutional norms. Taken together with ReConFort I (National Sovereignty), it calls for an innovative reassessment of constitutional history drawing on key categories to convey the legal nature of the constitution itself (national sovereignty, precedence, justiciability of power, judiciary as constituted power). In the late 18th and early 19th centuries, constitutional normativity began to complete the legal fixation (...) of the entire political order. This juridification in one constitutional text resulted in a conceptual differentiation from ordinary law, which extends to alterability and justiciability. The early expressions of this 'new order of the ages' suggest an unprecedented and irremediable break with European legal tradition, be it with British colonial governance or the French ancien régime. In fact, while the shift to constitutions as a hierarchically 'higher' form of positive law was a revolutionary change, it also drew upon old liberties. The American constitutional discourse, which was itself heavily influenced by British common law, in turn served as an inspiration for a variety of constitutional experiments - from the French Revolution to Napoleon's downfall, in the halls of the Frankfurt Assembly, on the road to a unified Italy, and in the later theoretical discourse of twentieth-century Austria. If the constitution states the legal rules for the law-making process, then its Kelsian primacy is mandatory. Also included in this volume are the French originals and English translations of two vital documents. The first - Emmanuel Joseph Sieyès' Du Jury Constitutionnaire (1795) - highlights an early attempt to reconcile the democratic values of the French Revolution with the pragmatic need to legally protect the Revolution. The second - the 1812 draft of the Constitution of the Kingdom of Poland - presents the 'constitutional propaganda' of the Russian Tsar Alexander I to bargain for the support of the Lithuanian and Polish nobility. These documents open new avenues of research into Europe's constitutional history: one replete with diverse contexts and national experiences, but above all an overarching motif of constitutional decisiveness that served to complete the juridification of sovereignty. (www.reconfort.eu). (shrink)

One might think that if the majority of virtue signallers judge that a proposition is true, then there is significant evidence for the truth of that proposition. Given the Condorcet Jury Theorem, individual virtue signallers need not be very reliable for the majority judgment to be very likely to be correct. Thus, even people who are skeptical of the judgments of individual virtue signallers should think that if a majority of them judge that a proposition is true, then that (...) provides significant evidence that the proposition is true. We argue that this is mistaken. Various empirical studies converge on the following point: humans are very conformist in the contexts in which virtue signalling occurs. And stereotypical virtue signallers are even more conformist in such contexts. So we should be skeptical of the claim that virtue signallers are sufficiently independent for the Condorcet Jury Theorem to apply. We do not seek to decisively rule out the relevant application of the Condorcet Jury Theorem. But we do show that careful consideration of the available evidence should make us very skeptical of that application. Consequently, a defense of virtue signalling would need to engage with these findings and show that despite our strong tendencies for conformism, our judgements are sufficiently independent for the Condorcet Jury Theorem to apply. This suggests new directions for the debate about the epistemology of virtue signalling. (shrink)

En el marco de los treinta años de la publicación en castellano de la segunda edición de la Teoría pura del derecho y de los setenta y cinco años de la primera publicación en alemán de dicha obra, del profesor austriaco Hans Kelsen, el Programa de Derecho de la Facultad de Relaciones Internacionales y Ciencias Jurídicas y Políticas de la Universidad de Bogotá Jorge Tadeo Lozano, celebró, en octubre de 2009, el Congreso Académico Internacional Hans Kelsen: una Teoría Pura del (...) Derecho, del cual se originó el libro que lleva el mismo nombre. La relevancia que produjo dicho evento en el ámbito académico, así como el interés despertado para la generación de un espacio similar con otros autores de importancia para la ciencia jurídica, se establecieron como el punto de encuentro y la razón de producción de aquello que lleva el nombre hoy de jornadas Académicas Internacionales de Argumentación y Filosofía del Derecho que, adicionalmente, sirvieron para una modulación de actividades desarrollas en el Foro de Interpretación, Argumentación y Decisión judicial del año 2010, llevado a cabo en nuestra Universidad, con presencia del profesor portugués Boaventura de Sousa Santos. (shrink)

This paper proves two theorems for homogeneous juries that arise from different solutions to the problem of aggregation of dichotomous choice. In the first theorem, negative correlation increases the competence of the jury, while positive correlation has the opposite effect. An enlargement of the jury with positive correlation can be detrimental up to a certain size, beyond which it becomes beneficial. The second theorem finds a family of distributions for which correlation has no effect on a jury’s (...) competence. The approach allows us to compute the bounds on a jury’s competence as the maximum and minimum probability of it being correct for a given individual competence and dependence structure. (shrink)

In a homogeneous jury, the votes are exchangeable correlated Bernoulli random variables. We derive the bounds on a homogeneous jury’s competence as the minimum and maximum probability of the jury being correct, which arise due to unknown correlations among the votes. The lower bound delineates the downside risk associated with entrusting decisions to the jury. In large and not-too-competent juries the lower bound may fall below the success probability of a fair coin flip—one half, while (...) the upper bound may not reach a certainty. We also derive the bounds on the voting power of an individual juror as the minimum and maximum probability of her/his casting a decisive vote. The maximum is less than one, while the minimum of zero can be attained for infinitely many combinations of distribution moments. (shrink)

Criminal juries in the United States typically deliver their decisions through a “general verdict,” expressing only their ultimate conclusion of “guilty” or “not guilty,” rather than through a “special verdict” that identifies whether each element of the charged crime has been proven beyond a reasonable doubt. American courts have broadly favored the use of general verdicts in criminal cases due to concerns that the special verdict will curtail the jury’s decision-making autonomy, including its power to nullify the law (...) in favor of the defense, potentially undermining the criminal defendant’s constitutional right to trial by jury. This Article confronts the legal status quo on verdict format and its underlying, untested assumptions. Drawing upon prior psychology findings and legal professionals’ anecdotal observations, it questions whether the general verdict poses its own under-acknowledged threats to the rights of criminal defendants and the decision-making agency of jurors. While the more guided special verdict format is presumed to threaten nullifying acquittals, the unguided general verdict format might be enabling convictions that violate constitutional norms of due process, impartial adjudication, and equal protection. Given the high-stakes values potentially implicated in the choice of verdict format in criminal cases, it is time to put the conventional wisdom in favor of general verdicts to an empirical test. This Article therefore proposes a methodological framework for investigating whether the legal status quo accurately reflects (1) current stakeholders’ preferences and predictions, and (2) experimentally testable legal and cognitive effects of general versus special verdicts in lay determinations of criminal liability. A data-informed understanding is needed to assess whether the general verdict is optimizing the integrity, fairness, and constitutionality of criminal jury decision making. (shrink)

Despite the venerable place that "justice" occupies in social scientific theory and research, little effort has been made to see how members of society themselves define and use the concept when confronted with determining "what has happened" in some social arena, theorizing about why it happened, and deciding what should ensue. We take an ethnomethodological approach to justice, attempting to recover it as a feature of practical activity or a "phenomenon of order." Our analysis involves an actual videotaped jury (...) deliberation. In his classic study of decision making by juries, Garfinkel observed that jurors changed their reliance on commonsense reasoning very little, even though they were instructed to adhere to official and legal criteria for guilt. The vacillation between commonsense reasoning and using official criteria creates a tension; in our data this tension is manifested as the choice between adhering to law and procedural rules and providing "justice." By articulating this tension as a puzzle, several of the jurors prepare the way for using "justice," and then use this concept in formal ways which, along with other discursive patterns and strategies, constitute the deliberation as a structured, concerted activity. We show four stages in the use of the term justice as it is embedded in jurors' practical reasoning. (shrink)

Perelman and Olbrechts-Tyteca's practical reasoning theory has attracted a great deal of interest since its publication in 1969. Their most important assertion, however, that argument is the logical basis for practical decision-making, has been under-utilized, primarily because it was not sufficiently operationalized for research purposes. This essay presents an operationalization of practical reasoning for use in analyzing argument logics that emerge through group interaction. Particular elements of discourse and argument are identified as responding to principles put forward by Perelman and (...) Olbrechts-Tyteca, and are viewed as fitting together in a kind of logical argument structure that is well suited to the study of practical arguments in decision-making. Both the content elements and the logical argument structure are illustrated using examples from two studies examining decision logics in public participation and jury decision-making. Advantages of this approach and proposed recognition of a new `filtered' type of argument structure are discussed. (shrink)

This paper explores the role that difference plays in collective decision-making using the Condorcet jury theorem. Agents facing a dichotomous decision might prove biased toward one of the options facing them. That is, they may be more likely to decide correctly when one of the options is correct than when the other option is. A juror might be more likely to convict a guilty defendant than to acquit an innocent one. Agents may display opposing biases. This paper identifies the (...) optimal committee composition in the presence of such bias. This composition depends upon both the prior probability that each option is correct and the relative costs of the two types of possible error. Optimal committee composition will be expressed in terms of the absolute margin that a group with one form of bias should enjoy over the other. (shrink)

In this case study I argue that experts, to gain relevance in a jury trial, need to fit into a manifold division of knowing. They do so by borrowing and sharing diverse knowledges. These exchanges place the modest expert testimony right into an authoritative and powerful decision-making apparatus. This argument derives from an ethnographic study of a ‘‘sleepwalking defense.’’ The division of knowing embraces the certified facts, the instructed case, the competing expertise, and the common sense. As a conclusion, (...) I identify the experts’ twofold relevance. Experts perform the case as undecided and decidable. They provide exclusive knowledge and affirm a set of other knowledges. By ‘‘knowing’’ and ‘‘not knowing,’’ the experts perform individual modesty and systemic immodesty by the same token. (shrink)

Laypersons serve at critical junctures in the legal process. This article provides an overview of research about layperson roles and draws attention to the research methodologies used in studying them. It also discusses the jury system because, in addition to the fact that this institution has attracted the greatest quantity of empirical research on lay participation in legal processes, the studies have also involved the greatest range of methodological approaches, thus allowing exploration of their various strengths and weaknesses. Research (...) on mixed tribunals, lay magistrates, justices of the peace and other forms of lay participation are also discussed in the article. There are literally hundreds of empirical studies bearing on jury competence and behavior. More systematic research surveying the extent of layperson roles in different cultures and countries is needed and studies of how laypersons actually perform in these roles is crucial. (shrink)

In this paper, I have analyzed the right to trial by jury in civil cases as reflected in decisions of the Michigan Supreme Court over approximately a 20 year period dealing with three areas affecting the right to trial by jury in civil cases: (1) entitlement to a jury trial; (2) summary disposition; and (3) directed verdicts. The study was constructed to cover cases over a substantial period of time, so that it would be possible to (...) analyze whether the changing composition of the Michigan Supreme Court, beginning in the late 1990's, impacted on the Court's decisions in these three areas.The conclusion that emerges from the is that the Court, as currently constituted, has diminished the right to trial by jury in civil cases in Michigan. The Court is more inclined than it was prior to 1999 to hold in more cases that there is no genuine issue of material fact, justifying summary disposition, and has now heard cases in which it has held that the defendant is entitled to a directed verdict. And the fact that the Court is more inclined to uphold the granting of summary disposition and directed verdicts is likely to have a demonstrable impact on these kinds cases when they are presented to the Court of Appeals and the trial courts. These courts, following the precedents of the Supreme Court and the results of the cases coming before that Court, will be more likely to rule in favor of granting motions for summary disposition and motions for directed verdicts.Given the Court's view of the diminished role of the jury in resolving factual disputes in civil cases, litigating lawyers must make the best of a bad situation and do everything that they can in order to protect the right to trial by jury in civil cases. They must try to ensure in the early stages of the litigation that their cases are strong enough to survive a motion for summary disposition and get to the jury, and at the trial they must make a determined effort to present sufficient evidence to survive a directed verdict. Hopefully the Court's view of the diminished role of the jury will not have dealt a fatal blow to the right to trial by jury in civil cases in Michigan. Time will tell how well the lawyers of Michigan have succeeded in preserving this fundamental constitutional right. (shrink)

Precision medicine is an emerging approach to treatment and disease prevention that relies on linkages between very large datasets of health information that is shared amongst researchers and health professionals. While studies suggest broad support for sharing precision medicine data with researchers at publicly funded institutions, there is reluctance to share health information with private industry for research and development. As the private sector is likely to play an important role in generating public benefits from precision medicine initiatives, it is (...) important to understand what the concerns are and how they might be mitigated. This study reports outcomes of a deliberative method of citizen engagement in Singapore that asked whether sharing precision medicine data with private industry would be permissible, and if so, under what circumstances. Findings from this citizens’ jury suggest sharing with industry would be permissible under certain conditions that are set out in nine recommendations. Implications of the recommendations and their underlying assumptions for policy decision makers are discussed. This study aligns with prior international studies which found conditional acceptance for data sharing with private industry, a public benefit requirement, specific reluctance to share with insurance companies and an emphasis on accountability and transparency to demonstrate trustworthiness. However, our results differ from prior studies in that opt-in consent did not dominate the deliberations as jurors were able to set it aside as an assumed prerequisite for participation in a precision medicine programme. (shrink)

The articles in this issue explore a number of difficult choices in medical care and research. They investigate ethical complexity in a range of decisions faced by policymakers and clinicians, and offer new evidence or normative approaches for navigating this complexity. In this issue’s feature article, Ford and colleagues engage with an ethical challenge faced by policymakers in relation to health research: should free text data contained in medical records be shared for research purposes?1 While some types of data (...) from electronic medical records are used widely in health research, privacy concerns have limited the use of free text data specifically. Ford and colleagues highlight the richness of the clinical information in free text and its centrality to some areas of healthcare such as mental health and primary care. In their view, while text analytic technology is developing rapidly, ‘policy makers routinely judge that the risk of re-identifying patients from text data is too high for these data uses’. Their citizens’ jury study in the UK found that participants were largely in favour of medical free text data being shared outside the NHS for research using an opt-out model: ‘the majority of jurors believed the benefits of sharing data for research outweighed the privacy risks’. In their commentary on this research, Largent and Morain raise some important issues about policymakers’ use of empirical findings …. (shrink)

The Supreme Court against the Criminal Jury critiques the Supreme Court’s decisions to allow reduced jury sizes and less than unanimous jury verdicts to determine guilt. John A. Murley and Sean D. Sutton challenges the Court’s decisions by examining its incomplete understanding of the purpose of trial by jury and evaluating its use of inaccurate and unreliable studies as support for its decisions.

A jury and two valid options are given. Each agent of the jury picks exactly one of these options. The option with the most votes will be chosen by the jury. In the N-couple model of Althöfer and Thiele, the jury consisted of 2N agents. These agents form N independent couples, with dependencies within the couples. The authors assumed that the agents who form a couple have the same competence level. In this note, we relax this (...) assumption by allowing different competence levels within the couples. We show that the theoretical results of Althöfer and Thiele remain valid under this relaxation. (shrink)

Many groups make decisions over multiple interconnected propositions. The “doctrinal paradox” or “discursive dilemma” shows that propositionwise majority voting can generate inconsistent collective sets of judgments, even when individual sets of judgments are all consistent. I develop a simple model for determining the probability of the paradox, given various assumptions about the probability distribution of individual sets of judgments, including impartial culture and impartial anonymous culture assumptions. I prove several convergence results, identifying when the probability of the paradox converges (...) to 1, and when it converges to 0, as the number of individuals increases. Drawing on the Condorcet jury theorem and work by Bovens and Rabinowicz , I use the model to assess the “truth-tracking” performance of two decision procedures, the premise- and conclusion-based procedures. I compare the present results with existing results on the probability of Condorcet’s paradox. I suggest that the doctrinal paradox is likely to occur under plausible conditions. (shrink)

I present an original model in judgment aggregation theory that demonstrates the general impossibility of consistently describing decision-making purely at the group level. Only a type of unanimity rule can guarantee a group decision is consistent with supporting reasons, and even this possibility is limited to a small class of reasoning methods. The key innovation is that this result holds when individuals can reason in different ways, an allowance not previously considered in the literature. This generalizes judgment aggregation to subjective (...) decision situations, implying that the discursive dilemma persists without individual agreement on the logical constraints. Notably, the model mirrors the typical method of choosing political representatives, and thus suggests that no voting procedure other than unanimity rule can guarantee representation that reflects electorate opinion. Finally, I apply the results to a normative argument for unanimity rule in contract theory and juries, as well as to problems posed for deliberative democratic theory and the concept of representation. (shrink)