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Welcome to CyberOne Wiki!

course description

CyberOne: Law in the Court of Public Opinion

Professor Charles R. Nesson

CyberOne is a course for students learning to make things happen in a cyber world. Cyberone 2008 will begin with empathic argument, programming from scratch, rhetorical poker strategic thinking, and introduction to projects. Projects include furthering work already ongoing, as well as new inspirations expressing our growing ability to use the tools of cyberspace to connect ourselves in creativity and peace. Pending approval by appropriate committees, independent credit may be arranged.

To participate in the optional clinical, students must enroll through clinical registration. Please refer to the Office of Clinical and Pro Bono Programs ( for clinical course registration dates and early add/drop deadlines.

this is a course about process as substance. We consider relationships among

  • strategic algorithmic thinking
for use in and beyond the classroom in law and the business and pleasure of life;
  • learning how to choose and better frame a question;
for use in all forms of discourse, the "question" being the most incisive way in which penetrating insight is expressed
  • games and understanding games to simulate reality, stimulate thinking, teach skills, have fun
  • avatars
animated by individual and group process, interacting in a virtual world, useful for learning and teaching roles and procedures in law and civil discourse
meeting and talking in combined virtual and real space;
  • understanding the law's process for framing and answering questions;
understanding the ideals of the law and the process by which law makes meaning, grasping this process both at individual and institutional levels and seeing connection between the two; seeing process as creation written in code, connecting with the idea that law is code, code is law;
  • understanding civil liberty
for use as a citizen of america and your community and family
  • putting thought to action as a clinical way of teaching and learning
for use in building a technologically assisted culture of good faith in law and code and self-sustaining financial structure

Our study of process encompasses

laptops and journals
lunch plans
playing poker
moot court activity in real and second life
film nights



cyberone enrollees

September 8: Cyberone - Rhetorical Space

learning process

reaching out

open access output to architectures of open library


university a recursive learning process


  • Strategic thinking; becoming a player; learning to make good choices for yourself
  • Re-empower the American Jury
  • Open Access to Education

where you are

where we are

where do we go from here

Story of Little Albert

September 9: Introduction to Projects

September 10: office hours all day

please sign up and come in to Griswold 501
my assistant is Moira Harding - mharding@law

Sept 11: groups


shubham mukherjee
matt sanchez
dmitry tishyevich
nnamdi okike


david gross
justin pines
steve feldman
janeane menaldino
kristen kramer
greg szewczyk
farah tariq
paul bozzello
darrell bennett



jeremy goldberg
jennifer schanes
caitlyn ross
joe pileri
mitchell griffith
caroline lents
calida motley

Group page located here


/freerice sandbox

Maliha Hashmi
nicole jackson
kira stanfield
jen dawson
robyn morris
brittany blueitt
javius wynn


steven abt
kyle tucker
debbie rosenbaum
michelle berger
alex henriques
isaac kriegman

September 15: Law is Code - Programming From Scratch

  • algorithmic thinking
**our group process
***frame class discussion
***focus issues, choose format and roles
***mock performance
***do for real

who among you excels at the play of strategic games

   *tic tac toe
   *become teachers
   *become law teachers for creative kids
    • story and process
***story of the story
  *  tell story of a process that exemplifies the teaching
   * -code is law
   * programming from scratch

September 16: Scratch Workshop

Rosalie Fay Barnes will demo a program to teach digital natives their legal rights to create.

September 22: group meetings

andrew woods to meet with poker group (assemble in class and then move to harkness)
jamaica group to meet in my office to confer with kevin
riaa, marijuana, free rice to meet for regular class
jury, the original position

September 23: Jury Nullification Instructions

Commonwealth v. Hebert and Opening Jury Instruction

kyle tucker

You the jury are assigned with determining the guilt or innocence of the defendant. I, the judge, will provide you with an official determination of the meaning of applicable laws. In making your factual determinations, determine whether the laws in question apply to the defendant in this case. If the laws are applicable to the defendant, then you shall return a guilty verdict.

matt sanchez

Ladies and gentlemen of the jury, your task is to determine the guilt or innocence of the defendant. This is an important duty, as you have the power to decide whether the defendant – your peer as American citizen – will go free, or whether she will lose her liberty through incarceration. I have presented you with the laws governing this case. You must decide whether the facts of this case warrant a verdict of “guilty” or “innocent” under those laws. Your decision should comport both with the law and with your collective view of what justice requires in this case. Good luck.

paul bozzello

I do not believe that any judge could reasonably instruct a jury that it may find a defendant not guilty merely because they believe the defendant should not be prosecuted for actions which clearly place him/her within reach of the criminal law. However, I do believe in jury nullification and I support the jury's right to acquit a defendant if it is their belief that a guilty verdict would be unjust to the individual and the citizenry. I support this right because it would be anathema to the constitutional principles underlying the right to trial by jury to hold that a judge, an instrument of state power whose independence is questionable, should be the final decision-maker with respect to a defendant's liberty. However, as we discussed in class, there are all kinds of problems with a jury instruction that would explicitly grant juries the right to find a defendant not guilty merely because they believe it would be unjust to find otherwise. I think that jurors should be made aware of their right to nullify during the early stages of the jury duty process or perhaps even through education in high schools. Americans should have greater awareness of their rights as citizens, voters, jurors etc. The right to nullify as a juror could become common knowledge through such education. The closest instruction I could imagine to one which would include explicit nullification rights would be one which instructed the jury as follows:

"If you believe that the defendant's actions merit a suspension of his/her liberty as provided by the law, you should find the defendant guilty. If you do not believe that the defendant's actions merit a suspension of his/her liberty, you may enter a finding of not-guilty."

In this way the jurors could be made aware of the salience of the liberty interests at stake for the defendants and understand that a guilty verdict doesn't exist in a vacuum, but entails suspending one of the most fundamental of constitutional rights. Because the suspension of liberty is indeed meant to execute the punitive function of the law, it should only occur when we, as citizens, believe that such punishment is warranted. The jury process is itself a part of the legal process of making and remaking law. Without the right to nullify, jurors are stripped of one of their constitutional protections against state/federal power – the right to protect their fellow citizens in the face of what they believe to be a tyrannical law, state or court.

Kristin Kramer

Ladies and gentleman of the jury, you have been selected to represent your community as we embark on a process of judgment. The defendant, [insert name], stands before you accused of the crime of [insert crime]. Your job consists of two parts. The first part will take place in this courtroom. You will sit in the jury box and pay close attention to everything that transpires in front of your. Both the counsel for the defendant and the State prosecutor will present their cases to you, and it is your job to pay careful attention to their arguments, to listen to the testimony of witnesses, and to weigh the evidence presented by both sides. Some evidence will strike you as more credible than other evidence, and other witnesses will appear more believable and truthful than others. It is your job to process this evidence and testimony and to perform the fact-finding function of determining which is to be believed and which is not, what is to be given weight when it is applied to the relevant law and what is not.

Part two of your job is a bit different. In part two, the trial will be over and it will be entirely up to you to formulate a judgment about the defendant's guilt or innocence. When the trial is over, the judge will instruct you on the law to be applied to the case, and you will retire to the jury room to discuss the case with your fellow jurors. You have a great power in part two of your job. This power derives from the Constitution of the United States, a document created by "we the people'" which empowers the jury as a body to make determinations of both fact and law. This means that if you believe the evidence proves the guilt of the defendant &#8220beyond a reasonable doubt&#8221 [or whatever burden of proof is relevant], and you believe the law at issue is properly applied to the case at hand, then you must return a verdict of "guilty." If, however, you determine that the evidence does not prove the defendant&#8217s guilt, or you believe that the crime he is charged with does not apply to the facts as you have found them, you must return a verdict of "not guilty." The trial will not commence.

What jury nullification doesn't mean:

I believe that jury nullification allows a jury to return a "not guilty" verdict despite factual findings sufficient to return a "guilty" verdict. Basically, it means that a jury can declare through its verdict that it doesn't believe a particular law should have been applied in a particular case. It doesn't give a jury the power to declare that the law itself is incorrect or unconstitutional. It could be a useful way, however, to send a signal to legislatures and judges that the public at large believes that a law isn't just.

Darrell Bennett, Jr.

Ladies and gentleman of the jury:

First let me say thank you for agreeing to serve on this jury today. Your role in these proceedings is equally as important as mine as judge. Together we are charged with deciding the matter before us.

My role as judge is to facilitate the process by which you make the decision as to guilt or innocence. I will keep order and make certain that the proceedings are done in a matter fair to you, the jury, and the parties involved. You ultimately decide the fate of the defendant and only a unanimous vote of guilt can convict the defendant of the crimes alleged.

As jurors you have an immense task. Your role is grounded in the very essence of our American democracy. You, the peers of the defendant, stand as the deciders of his/her fate. You decide whether the defendant committed a crime.

In determining whether the defendant is guilty or not, you must first decide whether each element of the statutory charge against the defendant has been proven by the state. In order to reach a guilty verdict, you must believe that the state has proven beyond a reasonable doubt of the truth of the charge against the defendant. You are the finders of fact. As the facilitator of this process, I will identify, explain and clarify the relevant laws with respect to all matters of evidentiary admissibility, statutory interpretation and constitutionality. I am the finder of law.

There is, however, an exception to when you must follow the law. If you decide that the state has proven each element of the statutory charge against the defendant, you can still choose not to convict. You can nullify the charges, if you believe any of these three conditions exists: (1) the conduct addressed in the statute should not be a crime; (2) the particular circumstances of the case make the defendant’s conduct not criminal; or (3) the defendant’s act, though criminal, does not warrant the charge (and subsequent penalty) sought by the prosecution. This is not only your right as a jury, it is your responsibility.

Jeremy Kasile Goldberg

Ladies and gentlemen of the jury, all of the evidence that will be presented in this trial has been heard. Now, you bear the responsibility of carrying out one of the essential duties and responsibilities of the American legal system: determining what you believe to be the true facts of this case. You have all of the necessary tools to carry out this duty. Consider all of the information that has been presented; do not focus on one statement or piece of evidence at the expense of all others; do not let any initial impressions or pre-judgments hinder your rational, balanced examination of the evidence that has been presented.

Ladies and gentlemen of the jury, you bear a great responsibility but it is a responsibility that is tightly circumscribed. Your duty is to determine what you believe to be the true facts of this case. That is all. You bear no duty nor do you have the privilege to consider the validity of any given law.

These laws have been passed after much deliberation and consideration by legislators. Their effects, application, and repercussions have been considered in great detail and it is not your place to pursue any sort of reexamination. Those who passed these laws are men and women selected through the democratic process by you and other American citizens to serve as lawmakers. It is these lawmakers who bear the ultimate responsibility, good and bad, in their consciences and in the democratic process, for the judicial decisions that result from the laws they create.

The severity of the punishments and repercussions that will result from your finding of fact are also outside of your role in this case. Those legislators that you elected have determined, in this instance and most others, minimum and maximum limits on the punishment that may provided for those who have violated this law. Within these limits, it is my duty as the judge to make a determination of where the severity of the acts committed in the case before us if the defendant is judged to be guilty by you. I have the tool of foresight, I have seen similar cases before and am able to place this case in their context. I have the gift of pragmatism, what may be shocking or unprecedented to you has, unfortunately, likely been seen many times before within our country's borders.

So, ladies and gentlemen of the jury, I task you with the responsibility of determining what you believe to be the true facts of this case. You bear no duty nor privilege to determine whether the existence, enforcement, and severity of this law are just or correct.

Caitlyn Ross

cessante ratione legis cessat ipsa lex
"When the reason for the law ceases, the law itself ceases."

In defining the role of a jury, there is a focus on what a jury must do: a jury has a responsibility to serve as representatives of its community. Within that responsibility, a jury must also seek out the truth. When in doubt, a jury must protect individuals within the community against the government. As Thomas Jefferson noted, “I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.”

It is more difficult to determine what a jury must not do. Beyond the basic ethics of the situation (a juror should not accept bribes, convict without evidence etc.) the jury as an entire body has fewer limitations. Because a jury is made up of more than one person, the effect of one juror is limited. So long as there is a belief in the maxim that a person is innocent until proven guilty, even a juror deciding to vote not guilty in the face of the evidence is less harmful than the opposite situation.

When the question of jury nullification is raised, we tend to limit the scope to the United States. Although other English-law countries such as the UK and Canada have histories of jury nullification, the US has the most prominent examples. This phenomenon helps keep the government in check, and possibly more in tune with how laws are perceived. I believe that all citizens have a responsibility to fight against unjust laws; this can include jury nullification. However, expecting jury nullification to provide the antidote to all such laws is a true abdication of responsibility. Therefore, a jury must not see itself as a legislative tool, but as a final check against tyranny.

Jury instructions:

As members of this jury, you are serving not only the government’s needs, but as your own community’s conscience. You are instructed to find the defendant guilty or not guilty of particular criminal acts. In order to convict, you must believe beyond a reasonable doubt that a crime has been committed by this defendant. You are responsible for determining if the actions occurred, and whether the defendant should be condemned for those actions. You cannot pass responsibility on to another person.

Debbie Rosenbaum

Although my liberal inclinations lead me towards favorably approving jury nullification, law school – for better or worse – has taught me to carefully consider the long-term consequences that would result from any position. On one hand, there is a romantic feeling behind the notion that American people, through positions on the jury, can have a powerful stance in the right to determine questions of both law and fact. Personally, I relish the power to nullify decisions. In a judicial system that is plagued with politics and bureaucracy, I see how a jury nullification policy could help mitigate these influences and serve as a check on the judiciary, as protection against potential overreaching by the prosecution, and as a means to legitimize the validity of democratically enacted laws. Jury nullification is a powerful tool by which the jury can send a message about some social issue that is larger than the case itself, or a statement that application of such a law is contrary to the jury's sense of justice, morality, or fairness. After all, trust in the jury is one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation, we must reexamine a great deal more than just the nullification doctrine.

All of those arguments resonate with my faith in the judicial system and the American people. But it is a well-recognized fact that jurors have the power to acquit an otherwise guilty defendant, but it remains unclear whether jurors have the right to do so. For instance, I have concerns about juries' ability to understand trial evidence and to render informed and unbiased verdicts – particularly with regard to legal decisions. I also worry that jury nullification could allow or encourage jurors to stray from the facts and decide cases primarily on their emotional reactions, personal biases, and other non-evidentiary factors. Jury nullification could lead to verdicts that are arbitrary, idiosyncratic, and induce chaos in the legal system. Moreover, judges are repeat players in the justice system, making judicial nullification more dangerous for the justice system in the long run. A judge's routine refusal to follow the law is more pernicious than a single verdict rendered by twelve jurors, randomly selected from the community, who are then released from service, unlikely to serve again in the near future. This is precisely why judges, unlike juries rendering a general verdict, are required to explain in great detail their rationale for judgments or other dispositive decisions. Thus, when judges decide to disregard an established court policy concerning jury trial practices, they should likewise be required to explain their reasoning explicitly and on the record. For me, the possible negative consequences on the structure and confidence in the American judicial system outweigh the civil disobedience that arise from jury nullification. Judges and jurors can continue to raise their support for, or opposition to, policies through other judicial and legislative policymaking venues.

Janeane Menaldino

A juror has the duty of playing the role of an agent of our government and as an agent of the whole community. Accordingly, he must abide by the responsibilities that these roles entail, which consist of determining whether the defendant is guilty of committing a crime. Without the unanimous verdict of guilt by the jury, the state cannot take the defendant's liberty away.

As juror, you speak for the people. You, the jury, are to judge whether the defendant committed a crime. It is the juror's responsibility to determine first whether each element of the statutory charge against the defendant is true. Proof beyond reasonable doubt of the truth of the charge against the defendant is a legal precondition that must exist for you to convict the defendant of a crime. In addition to statutory violation, however, a defendant's act, to be a crime, must be an offense to the safety and tranquility of our community that, in your judgment, as the conscience of our community, warrants your verdict of criminal guilt. It is within the jury's ambit to consider whether the statute unfairly punishes the victim in this specific case. The jury is allowed to refuse a conviction of the defendant if they find that, although the defendant has violated the letter of the law, a conviction would be against the conscience of the community. However, the jury should make sure to weigh, and give limited deference to the special information and abilities that Congress, state governments, and prosecutors have in determining the fairness and practicality of a law that has been passed.

What this does, in effect, is act as a signal to prosecutors and the legislature, over time, that enforcement of the statute by the public will not be tolerated and therefore that the statute must be changed or abandoned. This power makes sure citizens are able to play their respective role in the democratic government.

Greg Szewczyk

Possible changes to your instructions on the class wiki:

It will be your responsibility to determine first whether each element of the statutory charge against the defendant is true. Proof beyond reasonable doubt of the truth of the charge against the defendant is a legal precondition that must exist for you to convict the defendant of a crime. You are to judge, as the conscience of the community, whether this defendant has committed a crime. However, if each element has not been proven beyond a reasonable doubt, you may not convict the defendant, even if you believe, as the conscience of the community, that the defendant should be convicted.

Nnamdi Okike

A Suggested Opening Jury Instruction

Ladies and Gentlemen of the Jury,

Thank you for honoring your citizen’s duty by serving today on this jury. The role of the juror is an extraordinarily important one in our legal system. It preserves our deeply-rooted principal that as a citizen of this nation, one has the right to be tried by a jury of his peers. It also preserves our democratic ideals and ensures that justice is best carried out by our legal system. I commend you for serving on our jury today.

My role as presiding judge is to direct the process of the trial of the defendant, and to instruct and guide you in the performance of your jury duty. Your role, however, is a dual role. The first critical aspect of your role is to determine whether the defendant is guilty of committing the crime of which he is accused. This is a task which is of paramount importance. It will be your responsibility to determine first whether each element of the statutory charge against the defendant is true. Proof beyond reasonable doubt of the truth of the charge against the defendant is a legal pre-condition that must exist for you to convict the defendant of a crime.

This is not the only aspect of your role, however. The second aspect, and one which is of even greater importance, is to carry out the cause of justice. You are encharged with ensuring that this legal system best carries out the cause of justice with regard to this defendant and the specific crime of which he is accused. In addition to determining whether the defendant is guilty of the crime according to the letter of the law, you must also decide whether the law is just, and whether the law has been applied justly in this circumstance. This is a duty which you cannot abrogate.

You therefore must decide whether the law in question best promotes justice in all cases. If it does not, you must find the defendant not guilty. You also must decide whether the law has been applied justly with regard to this defendant, in this specific circumstance. If has not, you must find the defendant not guilty.

May you carry out your task with honor and with courage, and in so doing uphold the democratic ideals which are so fundamental to our nation.

Steve Feldman

Jury Nullification Instructions

Ladies and gentleman of the jury, your role is to determine the facts and to determine whether there are adequate grounds for conviction, or whether reasonable doubt requires acquittal. In doing so, you have great leeway; however, you must follow the law. You are not here to decide whether the law is fair or preferable; rather, you are here to decide whether the defendant broke this law beyond a reasonable doubt.

You may not like this law, but the way to deal with that is to vote for representatives who will seek to pass laws you desire. You must not use this unique duty as a juror to send any sort of message. I urge you to look at the facts, look at the law, and think hard about the evidence. After this, determine whether the government has proven its case beyond a reasonable doubt.

It is an important service to the community you are providing, and we thank you for this service.

Kira Stanfield

A juror should not be able to deviate from the law in order to exercise their own perception of justice. Although the law may raise concerns about the fairness of the penalty and enactment, citizens should not be given the opportunity to decide the application of the law. Unfortunately, many citizens carry personal biases that will make complete jury nullification improper.

For example, stereotypes of African-American young males due to perceptions on TV and in music videos and movies may sway a juror to have a preconceived notion of guilty for such defendants with similar characteristics as those often seen in these outlets. Whereas a person, who presents an image opposite to that of common stereotypes may not instill fear into the seated juror, and thus this impression may influence the jurors to not apply the law as strictly. Jurors may not blatantly or even knowingly apply their biases. But, nonetheless, it is human nature for common experiences to permeate one's thought processes when analyzing the guilt or innocence of a defendant. Clearly, this is an extreme example. However, the mere existence of such biases make the jury nullification process imperfect. Moreover, the unpredictable results of juries in different geographical locations add to my reluctance in fully adopting the viewpoint of jury nullification.

Yet, empowering the jury more than presently may be favorable. The jury should be able to decide the facts as presented and evaluate any external stimuli that may have affected the particular circumstances. Juries should be able to discuss the fairness of the law but, again, should not deviate from the law on the books. As mentioned in class discussion, there are currently options available for those who disagree with a law to get it overturned. Unless the law violates a fundamental right of a citizen, jurors should uphold the law. Furthermore, even if jury nullification granted a defendant liberty based on the jurors' beliefs that the law was absurd (i.e. the gun case), this does not mean that the law will be changed due to the jury nullification. Juries report their decision – a simple guilty or not guilty. They do not provide reasoning for their decision. Therefore, jury nullification may have hope in the American jury system. However, the imperfections must be ironed out before implementing jury nullification in the U.S. courts.

Brittany Blueitt

Ladies and gentlemen of the jury, thank you for agreeing to serve on the jury today. As citizens you have the responsibility today of determining whether the defendant is guilty of the crime charged.

The defendant has been charged with carrying a firearm without a firearm identification card. The prosecution has the heavy burden of proving the guilt of the defendant beyond a reasonable doubt. In determining whether the defendant is guilty of this crime, you must evaluate and weigh the evidence presented. When weighing the evidence, you may consider the testimony of the witnesses, including that of the defendant, and all other facts which are presented and admitted to by the parties in this court.

I encourage you to consider the evidence as a whole in making your determination. When considering the evidence as a whole, you should feel free to bring in your own judgments and sentiments as a reasonable and concerned citizen of this state. Should you find that your own experiences or sentiments shed a renewed light on the evidence, feel free to view the evidence in that light when making your determination. This is your duty and responsibility, not only as a juror on this particular case, but also as a concerned citizen to whom the law would apply equally.

Shubham Mukherjee

Idea for jury instruction that gives the jury discretion beyond merely applying the letter of the law through fact-finding:

For each trial, have a liability/guilt phase and a separate damages/sentencing phase. During the damages/sentencing phase, allow the parties to present the jury with evidence regarding the legislative intent of the statute. Examples of this kind of evidence would include legislative notes or transcripts of legislative debates.

At a minimum, ordinary rules of evidence would apply. Other rules could be enacted to prevent this phase of the trial from getting out of hand; e.g., parties are not allowed to subpoena senators who enacted the statute. The defense would have the burden of proof to show that a conviction would not further the legislative intent of the rule. The plaintiff/prosecutor will have the opportunity to rebut the defense's case.

After the liability/guilt phase, the jury would get an ordinary jury instruction regarding whether the defendant is liable/guilty, just as they do under today's system. After the damages/sentencing phase, the jury would get: 1) the ordinary jury damages/sentencing jury instruction that they get under today's system, and 2) an instruction stating: "You found the defendant guilty/liable under the letter of the law. Do you believe that sentencing the Defendant will further the legislative intent of the statute?" If the jury answers "no," then the conviction will be overturned.

Jury findings regarding legislative intent would be reversible on appeal only under a high standard; e.g., manifest error. If the legislators enacting the statutes are supposed to be representing the "people," then doesn't it make sense that groups selected from among "the people" should have a say in making legislative intent determinations, rather than just judges?

Caroline Lents

Jury nullification is a principle that coincides naturally with the principles upon which the jury system is founded and should be embraced. The idea behind a jury is that a group of one’s peers is better able to judge than a government official. It represents a democratic principle that the people should have a say in their laws and how they are applied.

Although this could be extremely dangerous if the law were left up to the prejudices of mainstream America (like those we saw in our discussion on fear), it seems that allowing jurors to refuse to punish is much less dangerous than allowing them to decide to punish more. It isn’t as if we would be allowing jurors to create new crimes and thus oppress certain groups of people more than the current laws do. What we would be doing is creating a new avenue that would channel what the American people in different states, cities, etc., actually believe is right and wrong and what they want the laws to be.

While one jury nullification should not be enough to change the law as stated, after a period of time, if it became clear that a majority of voters were opposed to a law, officials would then change their stance in response to their constituents. In addition, instructing a jury of their rights to acquit would allow the jury to pardon in those cases where the law will not provide the just result. Not everything is black and white, and sometimes the law should give in to human circumstance and compassion.

Michelle Berger

The role of the legislative branch is to make laws, while the role of the judiciary is to interpret those laws and apply them to specific cases. Jurors within their very limited role within the judiciary serve an important ancillary role to the specific application of laws – they fact find. Jurors sole role is to determine, when the facts are in dispute, what has actually occurred. It is only within this limited gray area that jurors should operate; outside of it should be off limits.

Though there are clearly distinctions between judicial activism and jury nullification, the outcome is the same: the judicial branch reaches out of its defined role of deciding what a law means and whether it has been broken into the purview of the legislature to create (or remove) laws.

The legislature directly represents the people; they are elected and accountable for their actions. When the populous dislikes a law, there is a course of action for changing those laws – petitioning or electing representatives to enact, change, or repeal laws. Should the legislature stray outside of these bounds and enact legislation the populous dislikes, there is a method for holding the representatives accountable, namely not re-electing the representative and instead electing someone who acts in a preferred method.

Jurors, on the other hand, are not elected; there is no method for a populous to hold them accountable for exercising judgment that is inconsistent with the will of the people. One may argue a jury is “of the people,” but this in itself is not dispositive, as juries are not a representative cross section of “the people.; ” if anything, they tend to be remarkably unrepresentative due to the voir dire process and the exercise of peremptory challenges by both the prosecution and defense. Consequently, allowing a jury the power to ignore a law duly enacted by a body held accountable by the people and representative of the people is dangerous. Such action allows a very small subset of unaccountable people to effectively create laws, ignoring the basis for our republican system of government.

Even within the judicial branch, jury nullification is dangerous. The Supreme Court and the Court’s equivalents within the state systems have the power of judicial review. Allowing juries the power to nullify instead of only fact finding effectively takes this power away from these courts, or at least renders it unnecessary in some instances. This yields two problems. First, such courts are better equipped to decide whether a law is unjust in the terms laid out by the law. Judges are more experienced in this process, and they tend to have formal training in this area. Part of the rational allowing juries to take on the role of fact finding is that they are equipped to handle fact finding; anyone can hear evidence and decide the truth or falsity of it if they are of capacity. Determining what a law means or whether a law is consistent with fundamental federal or state constitutional rights, however, may not be within a juror’s ability. Thus, such actions are better left to judges. Second, as with the legislators, in most jurisdictions, there are methods for holding judges accountable if they misuse their powers. Whether through elections or impeachment, judges eventually have to answer to the people they serve. Juries do not. They can be swayed by prejudice or emotion, with no consequence. Thus, it is better to leave them only with responsibility for things of only a limited scope, i.e. factual investigation, rather than nullification which has further reaching consequences.

Even if we assume that sometimes nullification is appropriate because the legislature has enacted an unjust law that is antithetical to the will of the people and there is no basis for the courts to repeal it, allowing the judiciary to take on the role of eliminating unjust laws through jury nullification has far reaching implications. Rather than forcing people to pay attention to the actions taken by the legislature and re-elect (or recall) their representatives as appropriate, it allows the people to remain uninformed and to shift the burden to the juries, at least in some cases. However, this is precisely part of the problem – while juries may be able to “correct” these instances that come to trials where there is a right to a jury (and that right is exercised), there are many more instances where such an opportunity will not exist. Thus, by forcing a jury only to fact find (and never to ignore a law when the facts suggest the law has been broken), unjust convictions may occur which will come to the attention of the general public. From there, the public will be forced to pay attention to the laws enacted by the legislature and act appropriately, which result in positive externalities as many more laws will be corrected than would through jury nullification.

That said, there is a danger that either the application of these unjust laws will not come to the attention of the general public, or that the general public will be so apathetic that they will not act on them. Even if this is true, it is still dangerous to give an outright right of nullification to a jury. Doing so would acknowledge that a jury – a potentially (and likely) non-representative group of a small number of people, unaccountable to anyone – has greater power than an elected legislature. This in turns undermines the purpose of our republican system of government and the carefully honed separation of powers within it, creating disequilibrium within our system of checks and balances. At best, if such a power should prove necessary, jury nullification should remain unacknowledged and secret, acting in the shadow of fact finding, rather than being a separate, clearly enumerated power,. The result then is, for practical purposes, the same: juries will still only have the power to find facts.

Alex Henriques

Short Answer:

The legislature can make dumb laws. Jury nullification when a law application is manifestly injustice will probably produce results more closely aligned with society's view of justice than a system without jury nullification. The best way to make juries use this standard is probably to tell them they can't nullify at all.

Long Answer:

Initially, there seem to be two different issues in play here.

1. What standard should juries use in deciding whether or not to nullify a law application?

2. What instructions should the judge give to the jury regarding their ability to nullify?

The answer to issue two is not necessarily the same as the answer to issue one. I'll address issue one first.

1. What standard should juries use in deciding whether or not to nullify a law application?

Premises: Law applications are just or unjust, according to society's view, independently of whether an elected legislature has enacted the relevant law.

Without nullification, laws are applied as is, whether just or not. Add nullification, and a set of law applications stop occurring, some just, some unjust.

Argument: Suppose juries consistently and accurately use the standard "don't apply laws when the outcome would be manifestly unjust." I don't think there's much argument against jury nullification under this set of assumptions. Sure, it's going against the will of the legislature -- but by assumption, justice is the ultimate goal, and inasmuch as the legislature produces results inconsistent with that goal, there's nothing wrong with juries improving on the legislature's job.

The problem arises when there's argument over whether a law application is just or not. The legislature's judgment presumably approximates society's view of justice better than the most lenient juror on a panel of twelve.

But, nullification of the set of law applications the most lenient juror views as manifestly unjust may be more consistent with society's view of justice than complete enforcement of all laws.

The question is empirical. Intuitively, the stricter the standard of injustice, the less likely nullification would move law enforcement away from society's view of justice. If a law gave life imprisonment for littering (and any later sentence reduction would not be retroactive), few would have qualms with a conviction being nullified. Once that is accepted, the question is only how far down the restriction ladder we should go.

Objection: The legislature should be the one to change unjust laws. Well, ideally, and to an extent, they do. To have meaning, the objection must go further and imply exclusivity in determining law and its application -- that juries should not engage in nullification. Why not? It still must be shown that jury nullification does more harm than good.

Objection: Allowing jury nullification will lead to breakdown in the rule of (just) law. As best as I can understand this objection, the problem would only occur if juries nullified large swathes of just laws. I'm not sure this would happen even if juries applied a "I don't like the law" standard. Surely a unanimity of jurors would agree on the most important laws -- for example, those penalizing theft or murder. If juries applied a higher standard, the risk of complete breakdown in the rule of law seems even less likely.

Objection: Why can't prosecutorial discretion take care of this case-by-case equity? It does, to an extent. In effect, prosecutorial discretion changes the distribution of just/unjust law application cases coming before a jury. But it still must be shown that, given this altered distribution, jury nullification does more harm than good. Thus, the issue of prosecutorial discretion enters the discussion at the empirical level: where should the standard lie?

Objection: This means you believe in living constitutionalism or intentionalism! Not so -- many factors distinguish jury nullification from what might be called judicial activism. In interpreting a law, a judge can change its contours -- in effect (re)write the law -- and create binding precedent as to all future interpretations. A jury can only refuse to apply a law in one case. Judges are repeat players, subject to systematic bias and bribery. Judges are elected or appointed government officials; a jury consists of the people: the best safeguarders of liberty. For these reasons and the practical realities of our system, intentionalism will not allow a judge to refuse to apply a crystal clear, but manifestly unjust law. Yet that perhaps is when nullification is most needed -- not when ambiguity allows various interpretations, but when the law severely and unequivocally wreaks injustice.

2. What instructions should the judge give to the jury regarding their ability to nullify?

The options for controlling the standard used by juries are limited: control of third-party speech, and jury instructions. Jury instructions influence a jury's behavior, but do not wholly determine it. A jury instruction demanding that the jury faithfully apply the law as determined by the judge will not prevent all nullification. Similarly, a jury instruction directing the jury to acquit if they find the law application manifestly unjust may give the jury undue courage, and lead to hung juries where a juror finds the law application merely unjust. It may be that if the optimal standard of injustice is very high, the optimal jury instruction would be to apply the law without exception.

Though the question is again hopelessly empirical, I'm inclined to favor jury instructions to apply the law as specified by the judge, without exception. If the law application is manifestly unjust, jurors may refuse to convict even if they are not aware that they have a right to nullify. Any more relaxed instruction acknowledging a jury's right to nullify runs the risk of juries nullifying too many law applications that are consistent with society's view of justice. This "no instruction" rule is a far from precise level of control over the standard applied by juries, to be sure. But it seems difficult to do better.

Of course, assuming we have juries, there is no practical difference between my position and the disallowing of jury nullification in any form; juries should be told "you can't do this" either way. The only implication is a normative judgment when jury nullification happens: "this was good" or "this was bad."

Harry Drozdowski

Ladies and Gentlemen of the Jury,

You are here today as an integral and important part of our country's system of justice. You are charged with finding the truth of the facts presented to you, and then using those facts to determine whether or not the individual on trial has committed the crimes with which he or she is being charged. If you determine that the facts indicate beyond the shadow of a reasonable doubt that the defendant broke the law, as it is written and has been explained to you, you MUST find the defendant guilty. You MAY NOT find the defendant not guilty if you find that the facts prove that the defendant violated the law as it is written, no matter what extenuating circumstances or situations you deem to be important.

Jen Dawson

Here are my proposed jury instructions. I might still rather say nothing at all (even if I felt that nullification is a needed safety valve), because I worry that even this might seem too permissive. Snippets of this language--but none of the content having to do with nullification--come from existing jury instructions.

Ladies and Gentlemen of the Jury: At this point in the trial, I am required to inform you as to the law governing this case to guide you in your deliberations. The jury and the judge each have have unique roles and responsibilities in the trial in which you will be participating.

It is my duty to preside over the trial and to determine what testimony and evidence is relevant under the law for your consideration. It is also my duty at the end of the trial to instruct you on the law applicable to the case.

You, as jurors, have the duty of deciding the facts. In determining what actually happened in this case -- that is, in reaching your decision as to the facts -- it is your sworn duty to follow the law that I am now in the process of defining for you. By applying the law as stated, you ensure that all people are equal under the law. Equality under the law means that sometimes sentences may seem disagreeable or even harsh.

In your deliberations, you may come to believe, however, that you have an additional duty that conflicts with the duty I have just described. In exceedingly rare cases, the application of the law as written would be not simply harsh, but a grave miscarriage of justice.

Because the jury is an impartial arbiter representing the norms of the community, it is the jury's responsibility to balance these two duties. A departure from the law as I have instructed you should not be taken lightly. Juries' disregard of the law has caused some of the most shameful episodes in America's history. Though juries have immense power, that power must be exercised responsibly.

Farah Tariq

I found the following jury instructions from the California (8th Circuit) Model Civil Jury Instructions. I thought they were a good example of the typical language found in jury instructions regarding a juror’s duty to decide a verdict based on the facts as the jurors themselves judge them, and the law as the judge states them. I copied them here as a starting point, because I decided that I would actually keep most of this language. However, I would probably lighten up the emphasis on the “law as stated in my instructions,” especially the statement about whether or not the juror agrees with the law. I would change that sentence to read: “but you must follow the law as stated in my instructions; however, in cases where the straight application of the law would result in extreme cases of injustice, you as jurors have the right to submit a different verdict, one which your common sense and sense of justice deem absolutely necessary.” Although there are other references to following the letter of the law and not allowing your prejudices to influence you, I think that the preceding amendment would allow the jurors the freedom and the information they need to submit a verdict that follows their better judgment rather than strictly the law. I do believe that the jury system and the common public should have some sort of limited review of the laws, especially on a case-by-case basis where the application of the law without regard to the story or the defendant would result in an unacceptable injustice.

“It will be your duty to decide from the evidence whether the plaintiff is entitled to a verdict against the defendant.

From the evidence you will decide what the facts are. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You will then apply those facts to the law which I give you in these and in my other instructions, and in that way reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it.

In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, any motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony and the extent to which their testimony is consistent with other evidence that you believe.

Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.”

Joseph Pileri

Your task today is an important one. You must decide, as members of society giving full consideration to both the law and the facts before you today, whether the defendant's conduct warrants punishment by the state. You must first consider whether the facts at hand establish that the defendant is guilty of the crime(s) charged by the state. This question is one purely of fact applied to the law as I will explain it.

However, you must also decide whether this conduct is so offensive to society that it merits punishment. In all fairness, can you look at the facts at hand and decide that a crime was committed regardless of any law against this type of action? And, if so, has this defendant earned the punishment that the legislature has prescribed, or would that punishment be a gross miscarriage of what you perceive to be just? If you cannot in good conscience and with an eye to fairness and justice find that this defendant truly did commit a crime worthy of the prescribed punishment, you must find him/her not guilty of the charges here.

Nicole D. Jackson

Follow the letter of the law, unless one of the following statements is true:

(i) You believe that none of the purposes of the law would be served by finding guilty in the immediately case

(ii) You believe that the law as written does not serve a valid purpose

(iii) Application of the law as written in this case would be unjust.

Isaac Kriegman

My jury instruction flows naturally and easily from my proposed nullification system. I propose that juries be given three options: 1) Innocent 2) Guilty 3) Rejection of the law or its applications to the facts (but guilty of the alleged facts)

If the jury chooses the third option, the defendant is NOT done. The case then goes to the governor or president, who may exercise the opposite of his commutation/pardon powers. In the absence of any action by the governor the defendant is acquitted.

But, the governor may take the positive action of imposing the criminal penalty.

This proposal serves a number of objectives: 1) It makes it an easier decision to nullify and will increase the number of nullifications. This is because the jury can simultaneously uphold its pledge to uphold the law and not have to impose a penalty on someone they think should not be punished. 2) It makes each nullification a visible public and political event which forces the governor to take a stand one way or the other. Thus high level of nullifications on drug charges would become a visible cultural force, encourage social dialog, and undermine the legitimacy of the law. 3) It protects completely innocent victims caught in the gears of the justice system, like Hebert, and also protects against prosecutorial misconduct. 4) It should allay the fears of jury nullification opponents who worry that racist or homophobic juries will make it difficult to get convictions for hate crimes. This proposal actually makes it EASIER to get convictions for hate crimes than our current system. Whereas prejudiced juries nullify silently in our current system, and there is no opportunity to review their decision, giving juries the explicit right to nullify will allow review of their decision. A racist jury is likely to nullify visibly instead of channeling their racist feelings to doubt about the factual circumstances. It gives them a way to say, "yes he killed the gay person, but that is OK", instead of just saying "no he didn't kill." The governor, elected by the same majority who passed the hate crime legislation, can then proceed to impose the criminal penalty.

With that proposed nullification system in mind I think Professor Nesson's proposed instruction on the wiki is good.

September 24: Deposition: Joel Tennenbaum

The story of the deposition really began the previous day at the status hearing. The hearing was a success for us: the judge set an early trial date of December 1 against the wishes of Plaintiffs’ counsel. This may have left them in a bad mood. After the hearing, Plaintiff’s supervising attorney – a middle-aged woman with a generally unpleasant disposition and poor manners – informed Prof. Nesson that he could only bring 2 students along with him to the deposition because they could not find a conference room large enough to accommodate more. She said it was absolutely impossible to get a larger room. I mentioned that the students won’t mind squeezing a bit, but she said “no, we can’t crowd the court reporter.” Notably, Plaintiffs’ deposition team would include 3, and at times 4, attorneys; apparently they were unwilling to afford Joel the same-sized team. In any event, Prof. Nesson and Plaintiff’s supervising attorney engaged in back and forth about this, until Prof. Nesson stated quite matter-of-factly “We are bringing 3,” at which point Plaintiffs’ supervising attorney simply walked off without comment. This was the stage that she set.

As a side note, Joel asked on the day of the hearing whether he needed to dress in a particular way for the deposition. Prof. Nesson said that ordinary clothes would be fine. Joel decided then and there that he would wear a Boston Red Sox t-shirt. It was meant to be his own small dig at Plaintiffs’ counsel: they were from Denver, and Joel was thinking about the Red Sox defeat over the Rockies’ in a recent World Series.

Our team met briefly the morning of the deposition. As promised, Joel was in his red sox t-shirt. Prof. Nesson’s chief advise to Joel was to be a “warrior:” You have your story, and you calmly and coolly state that story; you stay calm and focused at all times; you do not let them antagonize you or rush you or take you off your rhythm; you answer their questions with as few words as possible and by telling your story; nothing more; nothing less.

We arrived at local-counsel’s law offices and were shown to the conference room. I was expecting something small and cramped. The conference room was large enough to comfortably fit over a dozen people. The plaintiff’s lawyers at the deposition were: the case’s supervising attorney (the unpleasant woman whose name I don’t recall); Laurie Rust (the junior attorney on the case); and plaintiff’s in-house counsel (he introduced himself but I can’t remember his name). Laurie seemed like a pleasant and polite woman and so did the in-house counsel.

The supervising attorney took the deposition. Joel was apparently trying to really get into his “warrior” persona – he put on sun-glasses, maybe to keep them from seeing the whites of his eyes? She immediately began by asking Joel a litany of questions about how Prof. Nesson became involved in the case. For each question, Prof. Nesson asserted attny-client privilege. This happened for about a dozen questions; each time, plaintiffs asked Joel a question, he said “I’ve been instructed not to answer,” plaintiff asked Prof. Nesson if he was instructing Joel not to answer, and Prof. Nesson said “yes.” It was all quite repetitive, until Plaintiffs began asking about whether Joel reviewed documents with Prof. Nesson. Unsuprisingly, Prof. Nesson asserted privilege. In-house counsel asked to go off the record.

The in-house counsel stated the questions they were asking were completely ordinary and routine, they are not subject to privilege, and he has never been in a deposition where privilege was asserted. He explained that the contents of the documents may be privileged, but not a description of the nature of the documents; parties are required to produce “privilege logs” all the time. He then implied (with no subtlety at all) that Prof. Nesson was out of touch with current legal practice because he was a professor and doesn’t take many depositions these days. Prof. Nesson responded by commenting on the bullying nature of the litigation: the record companies are inappropriately using bullying tactics against the public in general, and have been unnecessarily harsh in their dealings with Joel in particular. The in-house counsel replied by saying that he has quite different views on the matter: many people get laid-off every year because of lost sales due to file-sharing and that is who he was fighting for. With regards to Joel’s case, he stated that Plaintiffs have been extremely generous with him and have afforded him many courtesies because he was pro se. He noted that Joel was the one being unduly harsh when he filed two separate motions for sanctions. As evidence of Joel’s supposed disrespect, he pointed out: “Here is a kid who shows up in our office wearing a Red Sox T-shirt and sun glasses!” The decision was made to save that conversation for another day and continue the deposition.

Eventually, the line of questioning went towards inquiries about other people who used or may have used Joel’s Kazaa account on the family computer. One by one, Joel listed off family and friends who used the computer over the years and explained why he thinks they may have used Kazaa (e.g., “they are music fans;” “they burn CDs;” “they download things”). The questioning for each such person took about 15 minutes or more. After 4 of these iterations, I had to leave to get to my clinical. I’m very curious about what else happened and how the deposition ended.

September 29: Jonathan Cohen here to consult with groups

A fascinating article about the aftermath of the Hattie Carroll murder immortalized in Bob Dylan's song.

September 30: Handling Press: Press Handling You



Tenenbaum Challenges RIAA in File-Sharing Case

Nearly unique among the thousands sued by the Recording Industry Association of America for sharing music files online, Boston resident Joel Tanenbaum is fighting back.

The basic facts are similar to those of many file-sharing cases. The RIAA alleges that Tenenbaum kept seven music files in a computer folder associated with a peer-to-peer file sharing network. Rather than presenting evidence that anyone obtained the files from Tenenbaum, the RIAA instead has argued that making the files available for sharing is sufficient for copyright infringement.

Tanenbaum objects to this "making available" doctrine on the ground that it would allow copyright holders to win infringement suits without proof of actual infringement. A federal court judge recently vacated a judgment relying on the “making available” doctrine on the same ground in Capitol v. Thomas, the only federal case to date in which the RIAA had obtained a jury verdict of copyright infringement.

The RIAA has filed similar suits against more than 30,000 people throughout the country. Virtually everyone faced with a lawsuit has settled rather than face a protracted litigation battle against the RIAA's team of corporate attorneys.

Tanenbaum has not only resisted the suit but also has filed his own claims against the RIAA, alleging the organization's mass litigation strategy is an abuse of the judicial process. According to Tanenbaum, each unlawful download costs the record companies less than a dollar, yet they are seeking damages of $750 or more per song.

Tanenbaum's case is set for trial on December 1.




Is there education in online poker?

Cambridge, MA (September 2008) – In a world where poker is associated with anti-social behaviors, one professor and his students are rethinking the lessons of poker.

“The future of poker depends on our ability to explain in a clear, consistent fashion what we instinctively know: that poker is a game of skill,” said Professor Charles Nesson, William F. Weld Professor of Law at Harvard Law School and co-founder of the Berkman Center.

Nesson and a cohort of students have begun a campaign to challenge the legal underpinnings of and social stigma associated with online poker. Games of chance are heavily regulated by the government. The legal test in most states is simple but ambiguous: a game is considered to be a skill game if skill predominates over chance in determining the outcome of the game. The federal government has long recognized that poker players are engaged in a “trade or business” and, for tax purposes, their income is “earned income.” Moreover, the betting element of poker contains all the elements associated with skill because it’s a skill that can be learned through experience or by instruction.

“Poker is not a game where the better player wins every hand or every night,” said Andrew Woods, insert description here. “But, the best players win almost every month and will certainly win every year. It takes patience, guts, psychology, and a keen understanding of math to succeed at the game.” Data show that even the “luckiest hand” wins a showdown hand in Texas Hold 'Em only 7% of the time. According to a study conducted at Case Western, the reason that poker appears to be a game of luck is that the reliability of any short session is low. In over 30 hours of experimental play, the players who received professional instruction performed better.

Poker as education?

In addition to challenging the legal status, Nesson’s team plans to address the public perception that poker has no social or educational lessons. His team believes that poker develops skills and personal qualities that are essential for making decisions, such as choosing a career, investing money, performing a job, buying a house – and even practicing law. Risk management is widely viewed as an important, critical element of the modern economy, modern life, and modern business management. The group advocates that teaching poker strategy involves teaching the fundamentals of risk management.

And that’s precisely what they plan to do.

Starting next year, Nesson and his team of students are pulling together a ground-breaking course that applies poker game theory to the real world. The course includes drawing connections between poker and microeconomics, the Cuban Missile Crisis, and an optimal betting strategy in Final Jeopardy.

In fact, the group believes that through this course, it can demonstrate how poker and litigation have strong parallels. According to Steven Lubet, author of Lawyers’ Poker, each “involves competitive decision making without complete information.” According to Lubet, poker also teaches players how to influence others and read ticks and body language -- important litigation skills. These are key for litigation, “given studies find that the general population is often incorrect when trying to discern falsehood, and given the need of litigators to be able to read not only opposing counsels' lies or exaggerations, but also witnesses and experts,” Lubet added.

“What people fail to realize is that poker is far more profound than a simple card game. It is a game of skill that teaches by rewarding desirable actions such as thinking logically and understanding other people and by punishing undesirable ones such as ignoring the odds and acting impulsively. It teaches emotional control, develops math and logical reasoning skills, and even emphasizes discipline and patience,” Nesson explained.

“And if that isn’t the core of American education, I don’t know what is.”





On behalf of Jamaican activists Kevin Wallen and Sage, a group of second and third year Harvard Law students under the direction of Professor Charles Nesson is reviewing the moribund Jamaican constitution. This interpretation is directed at amending the Jamaican constitution. Further work includes redrafting the entire constitution to meet the needs of the Jamaican people.

The project is two-fold. First, the law students are working to develop a teaching mechanism to make the constitution more accessible to those without legal training. Currently, the students are working on a collaborative “wiki” that breaks down the purpose of each chapter within the constitution. Second, the law students are drafting possible amendments to the Jamaican constitution including a new draft of the document that would be adopted under amendment mechanism.

The laws of Jamaica exist under the Constitution of 1962. This constitution reflects the post-colonial Jamaica and maintains the monarch of the United Kingdom as the Head of State. Citing a lack of substantive popular understanding of the constitution, Harvard Law students in CyberOne were asked by Kevin Wallen and Sage to analyze and summarize the document. Following this initial analysis, the students worked with Wallen, Sage and Camella Rhone to identify sources areas of the document that diverge with Jamaican values.

Although the process of amending the constitution can be arduous, the Harvard students are developing a framework that will allow meaningful change to the Jamaican political landscape. Wallen, Sage and Rhone will be able to use the proposal to educate others within Jamaican society and to provide a substantive option to those seeking real reform.

October 6


today we played poker
one card war
each one a player in the game

read A Civil Action
tell all or part of the Schlichtmann story in poker metaphor
read Lawyers Poker

October 7 marijuana

visit by keith stroup

October 13 free rice

October 27: start the machine


second life in groups

lexis westlaw

question tool

access to the motion to dismiss

edit access to the draft of our responses

access to the flurry of other action documents we have received

  • two kinds of law practice, big firm big government is one kind, david against goliath
  • first paragraph a sculpture, brief overall a spear

read it out loud

group assignments

we are writing to Judge Nancy Gertner asking her to deny the plaintiffs' motion to dismiss our counterclaim and allow our discovery and proof of it to go forward.

October 28: play poker for real

Private Full Tilt Poker tournament, courtesy of the Global Poker Strategic Thinking Society.

An account with Full Tilt is necessary.

Instructions on setup here.

November 3: tech assisted production in clinical setting

use of the question tool to compose a set of interrogatories and requests for admission

work over our motion for leave to file an amended counterclaim

take control of website

November 4

This statute is unconstitutional because it infringes on the personal liberty of a person to do what he wants in his own home and to his own physical person. It is unconstitutional for the same reason that a statutory ban on consuming alcohol or certain foods in one’s own home would be unconstitutional.

This statute is unconstitutional because it violates citizens' right to liberty and to privacy and has no relation whatsoever to a reasonable, rational, or even permissible government purpose. Modern research has repeatedly refuted the existence of negative affects from marijuana usage, rendering the statutory prohibition of marijuana an inappropriate prohibition on an innocuous product for which there is significant public demand.

The statute is unconstitutional because it restricts private and personal decisions that have no effect on others. This contradicts the right to life, liberty, and the pursuit of happiness, upon which we have built this country. Though the government has a right to regulate commerce, there is nothing about marijuana that should make it any different from other substances, from alcohol to McDonald’s. Just as the government allows citizens to make educated decisions about consumption of alcohol, or fatty foods, or cell phone use, all of which could be potentially lethal (as opposed to marijuana), they should allow citizens to make educated decisions about marijuana use. This country was created to enhance individual liberties, not to empower a government to make personal decisions because the citizens can’t make their own decisions. - Justin

This statute is unconstitutional because it violates the constitutional rights to pursuit of happiness! –DBR

The marijuana statute is unconstitutional as it imposes burdens on the constitutional rights of Americans for no rational reason. There is no qualified expert today who would testify that there is a rational reason to restrict marijuana. The statute has not been reviewed in over 40 years and it is time to do that now. There is no evidence of a causal link between marijuana use and automobile accidents. The first long term studies now available indicate that marijuana use is not associated with pulmonary problems in medicinal or recreational users, even in the long term. Given that marijuana poses no risk of fatal overdose, arguments regarding marijuana’s potency are exaggerated and misleading. Current medical evidence contradicts the Commonwealth’s evidence that marijuana causes dependency. Contrary to the Commonwealth’s assertion that marijuana is harmful, it is widely accepted in the general scientific and medical communities that there are many medicinal benefits to marijuana. Further, the marijuana statute places and unreasonable financial burden on the Commonwealth and its citizens.

This statute is unconstitutional because every American should have the right to act as he or she wishes, with the caveat that this proposed right would be limited by the equally significant rights of other Americans. Marijuana legislation bars the production and usage of a drug whose direct effects are those who use it or are in close proximity to its use, a drug that it is not feasible to overdose on, a drug whose possible negative effects take many years to become apparent. We all have, as Americans, the right to make decisions for ourselves, even if the consequences may be negative. Hindering this liberty and personal autonomy goes against the basic precepts of our country and its constititution.

Because incarcerating individuals for personal or medicinal marijuana use does not in anyway serve the Commonwealth’s admittedly legitimate interest in generally preventing harder drug use, curbing mental illness or decreasing the number of automobile accidents, the statute bears no rational basis to the Commonwealth’s objectives behind its enforcement and is therefore unconstitutional. -PB

The marijuana law is unconstitutional because it unfairly limits the personal liberties of citizens without good medical or social reason. The law does more harm to users of marijuana than the drug itself does. As compared to alcohol and tobacco, marijuana is clearly the substance that has the most positive side effects and the least negative side effects. This country has decided that although harmful, the decision to use alcohol and tobacco will be left to each individual adult to decide for themselves. Why should it be any different for marijuana? Especially when there are actually legitimate medicinal uses for marijuana, it is impossible to overdose on it, there is no evidence of any serious long-term side effects, and it is not a chemically addictive drug. Based on these characteristics of marijuana, the government has no legitimate rationale for limiting its consumption. The law was based on previous biased and/or uninformed medical opinions. Now that we have more research and information on the effects of marijuana, it is clear that the law must be reviewed for unconstitutionality. Although it might be harder to prove, it is also true that the law has a discriminatory purpose at its root. For these reasons, the statute should be struck down. -FT

This statute is unconstitutional because current and widely accepted medical and scientific evidence prove that the marijuana prohibition has no rational basis for the infringement on citizens’ protectable liberty interest in recreational use of marijuana. Furthermore, in light of the advances in the scientific and medical fields and new evidentiary rules regarding admissibility, the evidence relied upon by the Commonwealth would no longer even be admissible as expert testimony.

GL ch. 90C §34 is unconstitutional because while there is no reasonable medical or scientific basis for the statute, the statute imposes a major financial burden upon the Commonwealth of Massachusetts and its citizens. Scientific and medical studies have shown that there is no link between marijuana use and mental illness; that there is no evidence that marijuana is a gateway drug; and that marijuana is not associated with pulmonary problems in medicinal or recreational users. At the same time, economic studies have estimated that Massachusetts spends more than $130 million of taxpayer money on marijuana prohibition. Therefore, the court should hold an evidentiary hearing to determine the constitutionality of GL ch. 90C §34.

This statute is unconstitutional because the state has no rational reason to criminalize the recreational use of marijuana. It is the state's obligation to consider medical and scientific evidence in order to reconsider the original rationale behind this ban.

This statute is unconstitutional because it puts a restriction on people’s fundamental liberties. People should be able to do as they wish in the privacy of their homes, especially if the act in which they wish to engage in is not uniquely harmful to themselves or other citizens. In the privacy of their own home, citizens have the right to exercise their liberties without the invasion of the government. Moreover, this statute prevents citizens from access to medical treatment. The scientific and medical evidence available illustrates the beneficial uses of marijuana.



Massachusetts first considered the constitutionality of the marijuana prohibition in 1968 in Commonwealth v. Leis, 355 Mass. 189 (1969). In Marcoux, the trial judge granted an evidentiary hearing in which eighteen expert witnesses, including psychiatrists, pharmacologists and sociologists, gave testimony about the rationality of the Massachusetts GL ch. 94C §34 (hereinafter, “the statute”). Leis, at 191. The Court should hold an evidentiary hearing, as it did in Leis, to hear current expert witness testimony regarding the legitimacy of the statute. In Marcoux v. Attorney General, 375 Mass. 63 (1978), a group of plaintiffs brought a class action suit seeking a declaratory judgment that they were free to use marijuana within the privacy of their own homes. The Court articulated its equal protection analysis by explaining that strict scrutiny and rational relation “are a shorthand for referring to the opposite ends of a continuum of constitutional vulnerability determined at every point by the competing values involved.” Marcoux, at 65, Fn 4. The court used the evidentiary hearing as its primary tool for ultimately determining that the “total situation finds a place on the continuum of constitutional vulnerability where judicial nullification of the proscriptive legislation appears unwarranted.” Marcoux, at 71. The Court concluded that the plaintiffs’ were entitled to due process protection of their privacy but found that the protectable liberty interest in recreational use of marijuana was weak relative to the available evidence supporting the State’s police power.

Notes for Section 1(A): -It is important to state why the equal protection analysis applied in Marcoux should also apply here, rather than an alternative rule. The Marcoux analysis appears controlling but this should be made clear; it would also be valuable to show why alternative rules are not controlling.

-It is also important to state why an evidentiary hearing should be undertaken rather than an alternative means of assessing relevant evidence (for example, depositions of experts, interrogatories, etc).

B. New evidentiary rules regarding expert testimony call for an evidentiary hearing to determine the rationality of the statute.

It is particularly important that the Court hold an evidentiary hearing to determine the constitutionality of the statute because of the changes in the evidentiary rules controlling the admissibility of expert witness testimony. In Commonwealth v. Lanigan, 419 Mass. 15 (1994), the test for judging the minimal level of reliability necessary for the admissibility of expert scientific testimony became more stringent. Prior to Lanigan, the Court had followed the test set forth in Frye v. United States, 54 App. D.C. 46 (D.C. Cir. 1923), which focused on “general acceptance by the scientific community … on a scientific theory.” Lanigan, at 25. Lanigan added a further requirement that the Court “question whether the theory or technique can be or has been tested” and that “[p]eer review and publication of the theory or process is pertinent.” Ibid. Because of these more stringent rules for admissibility of expert testimony and the advances in the medical and scientific fields, the opinions relied on by the Commonwealth nearly forty years ago would no longer meet the strict standards necessary to be admissible as expert testimony. As shown below, not only does the scientific community generally disagree with the conclusions of the Commonwealth’s witnesses, but there are also significant concerns that the methodology used was fundamentally unsound. The Court should still hold an evidentiary hearing to sustain such a finding, even if the Commonwealth were able to show that these methods were not unsound, as it has yet to consider the issue since the rules regarding admissibility have changed.

Comments on 1(B): -It might make your case stronger if you included examples (if any exist) of old evidentiary rulings that the Court overturned specifically in view of the new Lanigan standard. -Is there anything you can say about the lack of "methodology" testimony from the pre-Lanigan testimony about this issue? I.e., the last time this Court considered the issue, the Commonwealth's experts did not include any description of methodology under which compliance with Lanigan could be determined. -it might help to emphasize that you think the commonwealth's expert opinions themselves are unsound right up top, and that this section addresses the further argument that their methodology was also flawed. 3


A. Current medical and scientific evidence indicate no link between marijuana use and mental illness. 4

Recent studies show that marijuana does not cause mental illness or psychological problems, as was previously thought. The 3,281 page report of the Indian Hemp Drugs Commission, arguably [one of the?] the most comprehensive work on this subject, documents no association [negative association, what’s the positive one for our argument?] between use of marijuana and mental illness. Additionally, countries with significant [how significant??] marijuana use show no higher rates of mental illness than countries with less marijuana use.[should briefly mention an example]. To assert otherwise is to conflate the power of fear [strong coloration] in our society’s traditional narrative [what is that traditional narrative, is definitively wrong?] about marijuana with the reality, which is that there is absolutely no indication [that’s far too strong a statement, loses credibility] that marijuana use causes mental illness. B. Scientists and doctors have widely discredited the theory that marijuana is a “gateway” drug. 4

// See our suggestions [1] for comments/edits on Section IIA-B.

C. There is no evidence of a causal link between marijuana use and automobile accidents. 5


If there are no studies, of either good or high quality, that show that there is a causal link, then the opening sentence should be something along the lines of: "A complete survey of the literature, including every study published since 19??, shows that there is not a single study demonstrating a casual link between marijuana use and automobile accidents."

However, I'm imagining that there are at least some studies that show such a link, perhaps bad quality, out-dated and discredited. If so, the opening sentence should be something along the lines of: "Although, in the early 19??s there were a handful of studies which purported to show a link between marijuana use and automobile accidents, those studies have been thoroughly discredited, were poorly performed, and present out-dated data. All the recent studies conducted with modern research procedures and statistical methods show there is no connection between marijuana use and automobile accidents."

Then both sentences should be proved by citing to studies, some of which you've already included.

The beginning of the first sentence is confusing because it jumps right into urine tests. Perhaps it should be reordered. This second half of the section mainly discusses marijuana in comparison to alcohol impairment, not whether there’s evidence of a causal link. The section does not explain or discredit any studies showing that there is a causal link between marijuana use & automobile accidents. Some of the quotes and statistical data are missing citations. The statement that sometimes marijuana users express an unwillingness to drive altogether seems unnecessary because it doesn’t have anything to do with what happens when they decide to drive. It could also use statistical support if there is any.

D. The first long term studies now available indicate that marijuana use is not associated with pulmonary problems in medicinal or recreational users, even in the long term. 6
withdraw sentence: "By contrast, nicotine promotes the development of cancer cells and their blood supply."


This section would be better if it opened with a broader statement of what they’re trying to prove. Maybe the first sentence should indicate the specific health risks that the Commonwealth was concerned about rather than just the word “health risks” since the section only discusses pulmonary problems. It would also be helpful if it included more studies indicating that there are no health risks associated w/ inhaling marijuana smoke, or at least a lesser probability of contracting them than the Commonwealth expresses; or beginning the paragraph specifying that the Commonwealth’s concerns are with pulmonary problems

E. Given that marijuana poses no risk of fatal overdose, arguments regarding marijuana’s potency are exaggerated and misleading. 8

            move fatal overdose section to the top and emphasize more

The group should lead with the fatal overdose argument followed by the potency of marijuana in the marketplace remains below 8%. The first argument is not too strong without more solid evidence about the perception of the marijuana user. A reader that is opposed to marijuana usage may be concerned about the 100% jump from 4% to 8% THC. The 4% increase can be addressed by the example of Marinol.

F. Current medical evidence contradicts the Commonwealth’s evidence that marijuana causes dependency. 9

       If the Commonwealth has found no compelling reason to regulate and criminalize the dependency-inducing substances of alcohol and cigarettes, it cannot aruge that marijuana, which causes no dependency and has substantially fewer negative side effects, should be criminalized anymore than it could argue that cigarettes or alcohol should be.

G. Contrary to the Commonwealth’s assertion that marijuana is harmful, it is widely accepted in the general scientific and medical communities that there are many medicinal benefits to marijuana. 9

Since the Court’s last evidentiary hearing on the benefits and drawbacks of marijuana over forty years ago, scientists and medical experts have conducted extensive research which highlights the significant medicinal benefits of marijuana and which is widely accepted by the greater medical and scientific community. These experts cite numerous studies and research, which demonstrate the ability of marijuana to slow the progress and even prevent some of today’s most common illnesses.

Although marijuana has a nearly 5,000 year history of being used as everything from an analgesic during surgery to treatment for malaria and rheumatic pains, recent clinical studies have also provided evidence that cannabis alleviates symptoms of cancer, osteoarthritis, post-traumatic stress disorder, Crohn’s disease, multiple sclerosis, glaucoma and AIDS. Grinspoon Aff. at 6. In many instances, this research also indicates that marijuana is more effective than the standard medications commonly prescribed. For example, marijuana is particularly effective in the treatment of cancer and AIDS, given its inherent propensities to elevate mood and stimulate appetite. Grinspoon Aff. at 11. As a result, it slows the progression of weight loss common among cancer patients as well as helps to prevent the nausea and vomiting commonly associated with cancer chemotherapy better than conventional antiemetics. Id. Marijuana works similarly to retard the progression of the AIDS disease. A study comparing the body weight and caloric intake between marijuana users and control subjects showed that the marijuana smokers ate more and gained more weight. Id. Additionally, marijuana relieves the pain associated with these illnesses without the semi-comatose effect of conventional pain medications.

Marijuana is also effective in treating glaucoma, a leading cause of blindness in the United States. Grinspoon Aff. at 13. Because of the cannabis derivative, cannabidiol, marijuana also acts as an anticonvulsant. Grinspoon Aff. at 14. This is especially useful in treating the more than 20% of epilepsy patients who do not get relief from conventional medications. See id. Cannabis reduces the chronic, painful muscle spasms and tremors that are common in paraplegics, quadriplegics, other victims of nerve damage and those suffering from cerebral palsy or multiple sclerosis. Id.

Given the fact that the numerous medicinal benefits of marijuana have been extensively reconsidered and overwhelmingly reconfirmed since their last examination in this Court over forty years ago, the Court must reassess the rationality of the marijuana statute in light of the new information available today. Moreover, given the widespread acceptance of this information among members of the medical and scientific communities, such benefits must necessarily be part and parcel of any expert testimony on marijuana. The very fact that the medicinal benefits of marijuana were not a part of the Commonwealth’s expert testimony in Leis necessitates that the Court hold a new evidentiary hearing based on expert testimony consistent with the most current standards of admissibility.

H. The marijuana statute places and unreasonable financial burden on the Commonwealth and its citizens. 11
--> comments: By Debbie and Mitchell: If it is so widely recognized, can you point to additional primary sources to support your information? It seems like the section relies solely on one Aff. Additional sources would be compelling. This is an argument, but does it need to be a “legal” argument? Section G asserts no legal argument.

A. The methodology used in the studies most heavily relied upon by the Commonwealth are now considered to be fundamentally unsound by the general medical and scientific communities. 12
See Image:Redraft.doc for comments. Jendawson 11:21, 4 November 2008 (EST)

B. The conclusions upon which the Commonwealth relies to legitimize the statute are irrational and are rejected by the general scientific and medical communities.

I think the first paragraph is strong and gets to the heart of the argument—that the medical evidence relied upon in justifying the law has now been disproven, leaving behind no rational basis upon which to justify the restriction. In regards to think link between marijuana and crime, I think you could cast stronger doubt by providing statistics on the overall percentage of males of a certain age who use marijuana. I also think there is a strong link between alcohol and violent crime, which could be used as a comparison to the tenuous link between marijuana and the frequency of arrests. I would also play up the fact that so many of these arrests are due to the illegality of marijuana in the first place. It is stated that there are 800,000 arrests for possession, etc.—what percentage of total arrests is this? The argument that legalization of marijuana will cause more youths to use the drug will likely be one of the major arguments presented by the other side, and I think it needs to be addressed more thoroughly. Is there an argument that legalizing marijuana will allow for restrictions to be placed upon it like those placed upon alcohol and cigarettes, thus making it more difficult for youths under the legal age to get it? Are there statistics that actually counter the notion that drug enforcement laws effectively decrease drug use?

november 10

fruits of the question tool

where is the post on the wiki

november 11: first stop them



John Breen's scoreboard for the CyberOne FreeRice challenge. The table reads as follows: initial of first name, grains of rice donated, and level on which each participant ended.


end the scourge as soon as possible

our first witness should start the story at the beginning

tell the story of the growth of the RIAA copyright giant

joels story just one of millions by the time fate falls on him

lessig to tell the history of the giant's growth right up through eldred

barlow to talk about the crisis in the CD business of the net

zittrain and wendy to testify to their actions and strategy since eldred

palfrey to voice RIAA's transference of the crisis to parents and schools

benkler to talk about the crisis to the courts and economic cost to law

fisher to finish up with alternatives to lawsuits against non-commercial defendants

then embrace them

December 1

Here’s an idea for class tomorrow:

Have people break up into their groups and brainstorm an innovative way to win the RIAA battle in the court of public opinion beyond what we’ve already done.

December 2

conclusion but not a conclusion

put up our discovery motion and move right on

next event in Providence December 15

approval for a clinical class of 8

preference for those already on the team

recommended not required reading