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School of Law BRITISH JOURNAL OF AMERICAN LEGAL STUDIES VOLUME 3 - ISSUE 1 Spring 2014 ARTICLES Lost in Translation: Criminal Jury Trials in the Michael G Heyman United States Rawls, Political Liberalism, and the Family: A Reply Greg Walker to Matthew B O’Brien The Origination Clause: Meaning, Precedent, and Priscilla HM Zotti & Theory from the 12th to 21st Century Nicholas M Schmitz From Lark Rise to The Storied City John Martinez Commanding Consistently With Sovereignty: Kody W Cooper Thomas Hobbes’s Natural Law Theory of Morality and Civil Law Melting Pot Benevolence and Liberty Patriotism: Will Sarvis The Importance of the Moral Cosmopolitanism Precedent The Expanding Right to an Effective Remedy: Common Valeska David Developments at the Human Rights Committee and the Inter-American Court ISSN 2049-4092 (Print) BRITISH JOURNAL OF AMERICAN LEGAL STUDIES Editor-in-Chief: Dr Anne Richardson Oakes, Birmingham City University Associate Editors Graduate Editorial Assistants 2014-2015 Sarah Cooper, Birmingham City University Daniel Gough Gareth Lee Dr Haydn Davies, Birmingham City University Prof Julian Killingley, Birmingham City University Maurice A Deane School of Law, Hofstra Dr Jon Yorke, Birmingham City University University New York Student Editorial Assistants 2013-2014 Seth Barrett Tillman, National University of Ireland, Maynooth Dave Ackerman Michael Smith Pooja Bhutani Adam Theo Birmingham City University Student Andrew Garbacz Kelsey Walker Editorial Assistants 2014-2015 Omar Harding Natika Richards-Perry Joshua Longhorne Maurer School of Law, Indiana University Nicketta Browne-Marke Ghalid Mohamed Student Editorial Assistants 2013-14 Lee Glass Susan Nasseri Ellis Isherwood Amna Nazir Ron Blue Jessica Fronk Sarah Domin Adesuwa Ighile Editorial Board Hon. Joseph A Greenaway Jr., Circuit Judge 3rd Circuit, U.S. Court of Appeals Hon. Raymond J McKoski, Circuit Judge (retired), 19th Judicial Circuit Court, IL. Adjunct Professor of Law, The John Marshall Law School, Chicago, IL Prof Antonio Aunion, University of Castille-la Mancha Prof Francine Banner, Phoenix School of Law, AZ Prof Devon W Carbado, UCLA, CA Dr Damian Carney, University of Portsmouth, UK Dr Simon Cooper, Reader in Property Law, Oxford Brookes University Prof Randall T Coyne, Frank Elkouri and Edna Asper Elkouri Professor, College of Law, University of Oklahoma, Norman OK Mark George QC, Garden Court Chambers, Manchester, UK Prof Larry Hammond, Osborne Maledon PA, Phoenix AZ Dr Carolyn Hoyle, Reader in Criminology, University of Oxford, UK Prof James Kousouros, CALS Visiting Professor, NY Prof Ian Loveland, City University London, UK Prof James Maxeiner, Center for International & Comparative Law, University of Baltimore School of Law, Baltimore, MD Prof Ruth Miller, University of Massachusetts, Boston, MA Dr Anne-Marie O’Connell, University Toulouse 1 Capitole Prof Austin Sarat, William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College, MA Dr Stephen W Smith, University of Birmingham, UK Prof Carrie Sperling, Sandra Day O’Connor College of Law, Arizona State University, AZ Prof Clive Stafford Smith, Reprieve Dr Timothy Stanley, Rothermere American Institute, University of Oxford, UK Prof Adam N Steinman, Seton Hall University School of Law, Newark, NJ Prof Russell Wheeler, The Brookings Institution, Washington DC School of Law BRITISH JOURNAL OF AMERICAN LEGAL STUDIES VOLUME 3 - ISSUE 1 Spring 2014 ARTICLES Lost in Translation: Criminal Jury Trials in the United States Michael G Heyman ............................................................................... 1 Rawls, Political Liberalism, and the Family: A Reply to Matthew B. O’Brien Greg Walker ......................................................................................... 37 The Origination Clause: Meaning, Precedent, and Theory from the 12th to 21st Century Priscilla HM Zotti & Nicholas M Schmitz ......................................... 71 From Lark Rise to The Storied City John Martinez ....................................................................................... 141 Commanding Consistently With Sovereignty: Thomas Hobbes’s Natural Law Theory of Morality and Civil Law Kody W Cooper ...................................................................................... 165 Melting Pot Benevolence and Liberty Patriotism: The Importance of the Moral Cosmopolitanism Precedent Will Sarvis ............................................................................................. 197 The Expanding Right to an Effective Remedy: Common Developments at the Human Rights Committee and the Inter-American Court Valeska David ....................................................................................... 259 LOST IN TRANSLATION: CRIMINAL JURY TRIALS IN THE UNITED STATES Michael G. Heyman* The John Marshall Law School ABSTRACT Having taught Criminal Law for several decades, I’ve watched students struggle to grasp its basic concepts and language. Over time, we’ve man- aged to master these matters. But criminal trials require untrained juries, assembled from the general population, not only to listen carefully throughout these trials, but then to apply an entirely new body of concepts, effectively making decisions about personal liberty and even life itself. Mis- cues are clearly predictable. This Article examines the causes of these miscues, while avoiding the sim- plistic solution of ridding the system of jury trials. Rather, the machinery of criminal justice is flawed by the presence of arcane, outdated criminal codes, judges passively presiding over trials by rarely attempting to prevent or eliminate confusion among jurors and a system of judicial review that presumes correctness and understanding in the face of flatly contradictory facts. Finally, as the title of this piece suggests, much can be improved and justice more fully served by simply reworking the judge-jury relationship, whereby judges more actively and sensitively educate juries on their func- tions and the applicable law throughout these trials. CONTENTS I. INTRODUCTION ....................................................... 2 II. COMPREHENSION ISSUES. .......................................... 4 III. NULLIFICATION AND OTHER DISTORTIONS OF THE LAW ......................................................................... 7 A. JURY NULLIFICATION AS JURY ERROR ....................... 10 IV. EDUCATION JURIES ................................................... 14 V. EDUCATING JUDGES .................................................. 19 A. EDUCATING JURIES BETTER ....................................... 21 B. THE TRAYVON MARTIN CASE .................................... 24 VI. THE PROBLEM WITH BAD CRIMINAL CODES .............. 29 1 3 Br. J. Am. Leg. Studies (2014) A. LOUISE WOODWARD: A BAD NANNY, BUT NO MURDERER .............................................................. 31 VII. CONCLUSION ............................................................. 34 I. INTRODUCTION Imagine you have been asked to explain the American criminal justice system to a group of foreign lawyers. Imagine further that this audience easily understands our basic legal structures, including our police system and legal infrastructures. At that point, you venture to explain our jury system, which though hardly unique, can look remarkable from a detached perspective.1 The perplexity would begin as you describe the civic responsibility for jury service, and that jurors undergo substantial questioning before the jury is finally empanelled.2 Further, you explain that, without any additional training or required understanding of law, juries are to render verdicts in criminal cases. Moreover, this takes place after they sit on a case having received nearly no explanation of what was to follow during the trial. In- deed, only at the conclusion of the trial will the judge read the instructions, and she does not invariably provide a written copy of them or any addi- tional explanatory material. Worse, if you are attempting to paint in broad strokes about the American system, you have to explain the variations in the law nationwide in all their complexity. Thus, though the Model Penal Code prompted an enormous reform movement,3 its simplicity has eluded the codes of many states. Thus, for example, whereas the Code reduced the welter of mental states to four, many states either retain common law notions through their codes, or do not provide a code basis for them at all.4 Some leave it entirely *Michael G. Heyman, Professor, The John Marshall Law School, 315 South Plymouth Court, Chicago, IL 60604. 1 The United States stands as one of a few Western nations to retain the death penalty, and juries play a key role there. See Abolitionist and Retentionist Countries, AMNESTY INT’L, http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries (last visited July 31, 2013). Moreover, ours is also a constitutionally driven reliance on juries for crimes of sufficient magnitude. 2 Jurors will be questioned on a variety of items during voir dire to determine any potential bias or prejudice. 3 MODEL PENAL CODE Pt. I: General Provisions (Official Draft and Revised Comments 1985), Pt. II: Definition of Specific Crimes (Official Draft and Revised Comments 1980). The Code, officially promulgated in 1962, provides the basis for the codes in the dozens of states that have adopted it in some way. 4 For example, Massachusetts uses an enormously byzantine definition of the mental state for murder, without explaining the component