Assignments
From CyberOne Wiki
our field of play is the American Jury Trial and the explosively expanding net
- read flatland
- buy a journal book and find a pen you like to write with
- generate a graphic plane in two dimensions
- y axis: liberty
- x axis: the growth in speed of propagation of a message from a single source to the people
- take magna carta as point of origin
- generate a graphic plane in two dimensions
be thinking as we go of an exam which asks you to chart the function of trial by jury as protector of liberty and write essays in support
We seek to create a course that demonstrates value of:
- strategic thinking
- for use in and beyond the classroom in law and the business and pleasure of life;
- graphic of a game in extensive form with link to binmore
- learning to choose and better frame a question;
- in your journal - what is your passion, what is the question that is driving your life
- understanding the law's process for framing and answering questions of citizen liberty;
- each day in your journal your distillation of what you have learned
- learning how to construct and deconstruct the relevance, logic and argument;
- of action we take in the process of learning the process;
- of understanding the ideals of the law of evidence and the process by which law makes meaning;
- of grasping this process both at individual and institutional levels and seeing connection between the two;
- of seeing this trial process as a creation written in legal code, and connecting with the idea that law is code, code is law;
- of meeting and talking in virtual space as well as real;
- of games to simulate reality, stimulate thinking, and teach skills;
- of seeing where jury trial has come from and where it can go;
- of avatars animated by group processes interacting in a virtual world following the roles and procedures of the law of evidence;
- of the metaphor of poker to teach and understand law, and in particular the law of evidence;
- of understanding that lawyers represent their clients both in and out of court;
We will follow the story of jury trial from magna carta to the present, as played out in the rules of evidence, in the roles of the players, and in how the game is played.
jan.2: Terms on which WE Start: Original Position
EVIDENCE: The Law of Trial By Jury
- Conceptualizing the "original position"
Imagine a land of heroes and heroines each one of whom has liberty and a personal sense of responsibility. Call this group WE THE PEOPLE. Count yourself among us. How do WE the PEOPLE not lose our Liberty yet still claim the benefits of GOVERNMENT?
Imagine yourself speaking to this challenge in the voice of a founder about to make a government by which WE will seek to govern ourselves, knowing as we do that a government will promulgate, interpret and enforce rules that will threaten to stifle our liberty.
- On Liberty, Mill, Chapter 1
- Fried, Liberty: The Very Idea
- Barnett, The Presumption of Liberty
- Breyer, Active Liberty
- Scalia, A Matter of Interpretation
- Magna Carta
- Trial By Jury
- Penn and Bushel
- Hamilton and John Peter Zenger
- My Cousin Vinny: Charged
jan.3: Protection of Liberty Built into Process of Law and Privilege of Lawyers
- The American Jury: Bulwark of Liberty
- the problem of pockets of resistance to the common good
- peers of the viscinage, peers of the district
- trial by jury in the Massachusetts Declaration of Rights
- trial by jury in the Constitution of the United States of America
- trial by jury in the early courts of the Massachusetts and the Nation
- the problem of pockets of resistance to the common good
- Nullification of the Jury's Role as Check to Legislative and Executive Power
A corporate profit-making organism will use its wealth and power in its self-interest to influence its legal and rhetorical environment.
- Trial by Jury Constrained by Judges: The Jury's role with respect to Law, Fact and Justice
- Racism, Robert Morris, Lemuel Shaw and Fugitive Slaves
- Commonwealth v. Porter (1845)
- Commonwealth v. Anthes (1855)
- Corporate Fear of Civil Juries in the Rise of Negligence and Unions
- Racism captures juries
- Racism, Robert Morris, Lemuel Shaw and Fugitive Slaves
- What is the responsibility of lawyers for preserving jury trial as bulwark of liberty?
It was not at the time of our founding but has become a law of evidence that lawyers may not argue the injustice of a law to an American jury nor inform jurors of their power to acquit notwithstanding their conclusion that the defendant has violated the letter of the law as given them by the judge. Judges prevent lawyers from doing so by holding them in contempt of court. This threat to their physical liberty constrains the freedom of lawyers to speak on behalf of the client to the jury.
It was long a practice in our courts to permit lawyers to vet jurors peremptorily, to a certain number without need to have or state a reason. What is the lawyer's responsibility with respect to race and gender in jury selection.
- My Cousin Vinny: Lawyer Meets Client
jan.4: GUILT Beyond Reasonable Doubt
The Ambiguity of Truth
- necker cube
- riddle of three hats
- the inference of self and perception of the perception of self by other
- Daniel Gilbert, He Who Cast the First Stone Probably Didn’t
- truth as correspondence asserted from coherence
- Judith Donath, Signals, Cues and Meaning
- Nesson, "The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts"
- My Cousin Vinny: The Arraignment
The Client's Truth: three live examples to think through
- GPSTS - Poker and the Law
- frame a declaratory action to be filed in Massachusetts to establish the legality of a charity poker tournament.
- University and RIAA
- frame a motion to quash a subpoena from a copyright holder to the university for the identity of a student downloader on grounds of undue burden
- Harvard Professors Nesson and Palfrey Tell RIAA : "Take a Hike"
- RIAA Targets New Colleges, Still Avoids Harvard
- Why the RIAA may be afraid of targeting Harvard students
- In the Fight Over Piracy, a Rare Stand for Privacy
- Marijuana on Boston Common
- frame a motion to dismiss a criminal prosecution for possession of marijuana on grounds of unconstitutionality under the Massachusetts Declaration of Rights
In each case consider what proof you will offer in support of your claim and the form in which you will offer it.
outside class, afternoon or evening
- Poker Teaches Strategic Thinking
- introduction to poker as a game
- introduction to poker as strategic metaphor
- a lesson from the professor- - Howard Lederer: Poker is a Strategic Betting Game
- analyze the final hand in The Cincinnati Kid: What was the kid's mistake?
- analyze in the final hand in Rounders: What hand can Teddy possibly have been playing? What was his tell?
- read and absorb at least the method and purpose of programming no-limit hold'em.
- articulate metaphors for each of the parameters of the program.
- skim for flavor, or dig deeper if you wish
- Flatland, Edwin Abbott (to loosen your ability to see in different dimension - what seems complicated in one dimension can be simple when seen from another)
http://upload.wikimedia.org/wikipedia/en/thumb/8/85/Stereographic_projection_in_3D.png/180px-Stereographic_projection_in_3D.png - Binmore, Game Theory: A Very Short Introduction (Oxford, 2007)
- Axelrod, The Evolution of Cooperation ?, (Chap.1)
- Grossman, New Tack Wins Prisoners Dilemma
- Francis Beer, Games and Metaphors
- Baird, Game Theory and Law (1994)(Chap.1)
- Poker Teaches (Google Video)
- Flatland, Edwin Abbott (to loosen your ability to see in different dimension - what seems complicated in one dimension can be simple when seen from another)
jan.7: Trial as a Constructed Drama of Evidence Offered and Tested to Prove Tort or Crime
The Judge's Roles; Director of Order, Protector of Liberty and Justice
- Solomon
- Judge Byrne - The Pentagon Papers Case
- Judge Skinner
- Judge Hallett
- Judge Hoffman
- the judge's rules
- what moves are you allowed to make, and when
- what rules can you break, and when
- what are your powers of enforcement
- the lawyer's roles
- the lawyer's rules
- what moves are you allowed to make, and when
- what rules can you break, and when
- what are your powers of enforcement
- the lawyer's rules
- My Cousin Vinny: Probable Cause
jan 8: Evidence Discovery and Spoliation
Physical Discovery
- D.C.Bar on Ethics of Evidence Destruction
- Smoking Gun
- Mehrens - Whose Got the Button
- Hitch v. Arizona
- Anne Anderson v. Beatrice Foods
- Nesson, Incentives to Spoliate Evidence in Civil Litigation, 13 Cardozo L. Rev. 793 (1991)
Digital Discovery
- Privilege and Waiver
- Changes to Accommodate
My Cousin Vinny: Public Defender
jan.9: Materiality -- Framing the Question
the question: the quest
veritas
speak truth
Relevance and Prejudice
How do you introduce evidence to prove or refute a charge
How do you Object! How does the Judge Decide
My Cousin Vinny: Jury Selection
jan. 10 Keeping Relevant but Prejudical Character Evidence from the Jury (or not!)
- What is evidence of a defendant's or a witness's character
- How may evidence of character be used?
- as direct affirmative proof of an issue in contest
- as inferential affirmative proof
- as attack on credibility
- People v. Zackowitz
- Return to the Scene of the Crime
- "Money or Death"
- United States v. Beechum
- Proof of Defendant's Good Character
- Proof of Defendant's Violent Character
- The Mayor
- Tanford & Bocchino, Rape Shield Laws and the Sixth Amendment
- Prostitution, Rape or Both?
- Explanation for Pregnancy
- My Cousin Vinny: Opening Statement
jan.11: Credibility and Confrontation
Credibility:
- What and why do we believe
- Direct Examination
- leading questions
- scope of examination
- strategy
- Cross-Examination
- the testimonial capacities
- limitations on cross
- no extrinsic proof of collateral matter
- strategy
- Confronting Ones Accusers: From the Trial of Sir Walter Raleigh to Where WE are now
- U.S. Constitution
- hearsay as it relates to the credibility of witnesses and the quality of confrontation
- The Treason Trial of Walter Raleigh
- Washington v. Swan
- Mattox v. United States (1895)
- Crawford v. Washington (2004)
- Davis v. Washington (2006)
- current doctrine
- My Cousin Vinny: Cross Examination
outside of class, afternoon or evening
single table group hold'em tournament
jan.14: Hearsay and Exceptions
- Definition of Hearsay
- Kuntsler Contempt Specification #1
- L. Tribe, Triangulating Hearsay
- J. Falknor, Evidence of Conduct
- R. Park, McCormick on Evidence and the Concept of Hearsay
- Arsenic and Hors d'Oeuvres
- Murder at the Seaside Bistro
- Assault on Massachusetts Avenue
- Murder in the Ajax Building
- Corn Crib Case
- Captain Cook and Davey Jones
- Hot Pursuit?
- The Stolen BMW
- The Forgetful Witness
- He who Laughs Last...
- Stage Fright
- Stagger P
- Snowmobile Slaughter
- Strong Feelings and Future Plans
- Negligent Entrustment
- Window Washers
- Accident Reports
- Hospital Reports
- Police Reports
- My Cousin Vinny: Cross Examination
jan.15: Experts in Criminal Cases
- hearsay, speculation and inference as the basis of opinion
- prosecution
- defense
- My Cousin Vinny: Expert Witness
jan.16: Experts in Civil Cases
- Wells v. Ortho
- Agent Orange
- Daubert v. Merrell Dow 113 S. Ct. 2786 (1993)
- General Electric Co. v. Joiner,522 U.S. 136 (1997)
- Kumho Tire Company v. Carmichael, 119 S.Ct. 1167 (1999)
- Daubert v. Merrell Dow (on remand),43 F.3d 1311 (9th Cir. 1995)
- My Cousin Vinny: Expert Voir Dire
jan.17: Attorney Client Privilege
- Bentham, Rationale of Judicial Evidence
- Proposed Rule 503
- The Blackacre Fraud
- Clark v. State
- The Eavesdropper
- The Energetic Investigator
- Hit and Run
- Upjohn v. United States
- My Cousin Vinny: Resolution
jan.18: Evidence in the Court of Public Opinion
outside of class, afternoon or evening
online hold'em tournament played by groups with winners of the single table tournament playing the group's avatar while projecting to a screen and leading group strategy discussion.
jan.22: Exam
glossary
- liberty
- justice
- crime
- misdemeanor
- statutory offense
- elements of offense
- evidence
- sufficient to support a finding
- verdict
- guilty
- reasonable doubt
- privilege
