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Papers by shari diamond

Research paper thumbnail of Empirical Legal Scholarship: Observations on Moving Forward

Northwestern University Law Review, 2019

Bar Foundation. My thanks to Meredith McBride for inviting me to contribute a short concluding es... more Bar Foundation. My thanks to Meredith McBride for inviting me to contribute a short concluding essay situating this inaugural annual empirical issue within the field of empirical legal scholarship.

Research paper thumbnail of Reference Guide on Survey Research

Research paper thumbnail of Panel Three: The Role of Juries and the Modern Judicial System

The American University law review, 1991

Research paper thumbnail of Procedural Justice-Psychological Analysis-Thibaut, J, Walker, L

Research paper thumbnail of The effects of racial heterogeneity on public perceptions of juries, trials, and defendants

Research paper thumbnail of Judicial notebook

Research paper thumbnail of Culture, Language, and Diversity on the Jury

For generations, Latinos were systematically excluded from jury duty. In the 1950s, the Supreme C... more For generations, Latinos were systematically excluded from jury duty. In the 1950s, the Supreme Court tackled the issue when a Latino convicted of murder argued that he had been discriminated against because those of Mexican heritage had been “deliberately, systematically, and ...

Research paper thumbnail of The "Kettleful of Law" in Real Jury Deliberations: Successes, Failures, and Next Steps

Northwestern University Law Review, Nov 29, 2012

According to standard lore, when jurors are doused with "a kettleful of law" at the end of a tria... more According to standard lore, when jurors are doused with "a kettleful of law" at the end of a trial, they either ignore it or are hopelessly confused. We present new evidence from a unique data set: not mock jury experiments or post-trial self-reports, but rather the deliberations of fifty real civil juries. Our intensive analysis of these deliberations presents a picture that contradicts received wisdom about juries and the law. We show that juries in typical civil cases pay substantial attention to the instructions and that although they struggle, the juries develop a reasonable grasp of most of the law they are asked to apply. When instructions fail, they do so primarily in ways that are generally ignored in the debate about juries and the law. That is, the jury deliberations reveal that when communication breaks down, the breakdown stems from more fundamental sources than simply opaque legal language. We identify a few modest pockets of juror resistance to the law and suggest why jury commonsense may in some instances be preferable to announced legal standards. We conclude that it will take more than a "plain English" movement to achieve genuine harmony between laypersons and jury instructions on the law.

Research paper thumbnail of Juries and Viewpoint Representation

Justice Quarterly, Mar 22, 2017

To generate high-quality deliberations, juries should be diverse in terms of not only demographic... more To generate high-quality deliberations, juries should be diverse in terms of not only demographics but also viewpoints. Using data from the Survey of Texas Adults (n = 1380), we examine whether existing processes select for individuals who represent the population on a variety of viewpoint characteristics, particularly whether the process of forming juries selects for people who are more independent-minded versus authority-minded. We find, on average, that those who believe in the importance of speaking English, are less compassionate, support Biblical literalism, and express more concern about the community effects of wrongdoing are more likely to have been former jurors than to not have served. Death penalty support is also modestly predictive of jury membership. Non-jurors rate their neighborhoods as cleaner than do former jurors. Results point to composition effects in the summonsing process and to the possibility that some types of people exempt themselves from this civic obligation.

Research paper thumbnail of The Rise of the Jury in Argentina

Juries, Lay Judges, and Mixed Courts

Research paper thumbnail of Review of Procedure Justice by John Thibaut and Laurens Walker

Research paper thumbnail of Race and Jury Selection: The Pernicious Effects of Backstrikes

A “backstrike” is a peremptory challenge used to strike a prospective juror after the juror has b... more A “backstrike” is a peremptory challenge used to strike a prospective juror after the juror has been accepted onto the jury panel but before the panel has been sworn. Thus, backstrikes permit an attorney to tentatively accept a juror by declining to exercise a peremptory challenge, but then revisit that decision after additional potential jurors are questioned. The data we analyze for this article provide the first systematic evidence on the role played by backstrikes. Our results show that use of backstrikes is common in Caddo Parrish, Louisiana, occurring in 40 percent of the 332 cases we studied. Moreover, controlling for other characteristics, prosecutors had overall between three and five times the odds of using a backstrike on a black prospective juror as on a non-black prospective juror. Depending on the type of case and the race of the defendant, the odds of prosecutorial backstrikes against black prospective jurors could be as high as almost nine times that of non-black one...

Research paper thumbnail of Government Takings of Private Property: Kelo and the Perfect Storm

In Kelo v. City of New London, the U.S. Supreme Court ruled that governments are permitted to use... more In Kelo v. City of New London, the U.S. Supreme Court ruled that governments are permitted to use the power of eminent domain to force the sale of private property for the purpose of promoting economic development. The decision provoked an unusually widespread popular reaction of outrage. In this chapter, we document the extreme public reaction to Kelo, which cut across political party, race, gender, and education. We focus on the rift between the public's expectations about the circumstances under which government should be permitted to take private property, on the one hand, and eminent domain law, on the other. The Supreme Court has long interpreted the "public use" requirement of the Fifth Amendment quite loosely, but for many decades this went mostly unnoticed by the general public until the Supreme Court declared in Kelo that taking homes for the purpose of economic development satisfies the public use requirement. The Kelo decision seemed to trigger a sudden col...

Research paper thumbnail of The hidden Daubert factor: how judges use error rates in assessing scientific evidence

In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court provided a framework u... more In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court provided a framework under which trial judges must assess the evidentiary reliability of scientific evidence whose admissibility is challenged. One factor of the Daubert test, the “known or potential rate of error” of the expert’s method, has received considerably less scholarly attention than the other factors, and past empirical study has indicated that judges have a difficult time understanding the factor and use it less frequently in their analyses as compared to other factors. In this paper, we examine one possible interpretation of the “known or potential rate of error” standard that would treat the factor more broadly, considering direct assessments of a method’s validity as assessments of the method’s potential rate of error, even when numerical error rates are not mentioned. To assess the extent to which judges use the error rate factor in this “implicit” sense, we examined 208 federal district court cases, coding for the number of words judges spent analyzing expert evidence in light of the Daubert factors and other evidentiary considerations. We found that judges faced with a Daubert challenge often undertake a detailed analysis of the quality of the methodology used by the expert rather than simply relying on proxies for the quality of the method such as peer review and general acceptance. Analysis of a method’s potential rate of error was significantly more common and longer than analysis using any of the other Daubert factors. This implicit error rate analysis also predicted the final admissibility ruling of the evidence and varied across expert disciplines. Our data support the notion that judges engage in substantial efforts to directly assess the validity of the scientific method before them when responding to a Daubert challenge. That is, they engage substantially in central processing in making methodological evaluations rather than merely relying on the peripheral cues of peer review and general acceptance. This finding lays the groundwork for future assessments of the obstacles judges face in these more demanding evaluations.

Research paper thumbnail of Diversity: Implications for Minority Jurors and for the Jury

Research paper thumbnail of Be careful what you wish for: The paradoxical effects of bifurcating claims for punitive damages

Wis. L. Rev., 1998

BE CAREFUL WHAT YOU WISH FOR: THE PARADOXICAL EFFECTS OF BIFURCATING CLAIMS FOR PUNITIVE DAMAGES ... more BE CAREFUL WHAT YOU WISH FOR: THE PARADOXICAL EFFECTS OF BIFURCATING CLAIMS FOR PUNITIVE DAMAGES ... STEPHAN LANDSMAN SHARI DIAMOND LINDA DIMITROPOULOS MICHAEL J. SAKS* ... Among the basic tenets of American adversarial justice are that the ...

Research paper thumbnail of When Law Calls, Does Science Answer? A Survey of Distinguished Scientists & Engineers

Daedalus, 2018

Sound legal decision-making frequently requires the assistance of scientists and engineers. The s... more Sound legal decision-making frequently requires the assistance of scientists and engineers. The survey we conducted with the cooperation of the American Academy examines the views of the legal system held by some of the nation's most distinguished scientists and engineers, what motivates them to participate or to refuse to assist in lawsuits when asked, and their assessment of their experiences when they do participate. The survey reveals that a majority of the responding scientists and engineers will agree to participate when asked, and when they turn down requests, the most common reasons are lack of time and absence of relevant expertise. Dissatisfaction with legal procedures is also a deterrent, but our respondents indicated that some procedural changes would make their participation more likely. In addition, participation appears to be associated with a greater belief in the ability of the legal system to deal well with scientific matters.

Research paper thumbnail of When Law Calls, Does Science Answer? A Survey of Distinguished Scientists & Engineers

Daedalus, 2018

Sound legal decision-making frequently requires the assistance of scientists and engineers. The s... more Sound legal decision-making frequently requires the assistance of scientists and engineers. The survey we conducted with the cooperation of the American Academy examines the views of the legal system held by some of the nation's most distinguished scientists and engineers, what motivates them to participate or to refuse to assist in lawsuits when asked, and their assessment of their experiences when they do participate. The survey reveals that a majority of the responding scientists and engineers will agree to participate when asked, and when they turn down requests, the most common reasons are lack of time and absence of relevant expertise. Dissatisfaction with legal procedures is also a deterrent, but our respondents indicated that some procedural changes would make their participation more likely. In addition, participation appears to be associated with a greater belief in the ability of the legal system to deal well with scientific matters.

Research paper thumbnail of What a (Very) Smart Trial Judge Knows About Juries

Depaul Law Review, 2015

Our thanks to Bob Burns for his thoughtful feedback. ** J.D., Northwestern University School of L... more Our thanks to Bob Burns for his thoughtful feedback. ** J.D., Northwestern University School of Law. 1. "[Appellate judges] should take into account the fact that the trial judge is likely much more familiar with the case than they are. .. . [As an appellate judge,] you defer to the lower court because you think they know more about what's going on, which is true." A Conversation with Associate Justice Stephen Breyer and Professor Stephan Landsman, YOUTUBE (Apr. 28, 2014), https://www.youtube.com/watch?v=yBMD7hN9wRc; see also State v. Johnson, 199 A.2d 809, 817 (N.J. 1964) (stating that an appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy"). Authority for this deference is also reflected in Federal Rule of Civil Procedure 52(a)(6)

Research paper thumbnail of Arizona's rule permitting juror discussions during civil trials promised multiple benefits and raised multiple concerns, but a novel study involving videotaping …

…, 2003

Page 1. Inside the jury room Evaluating juror discussions during trial by Shari Seidman Diamond, ... more Page 1. Inside the jury room Evaluating juror discussions during trial by Shari Seidman Diamond, Neil Vidmar, Mary Rose, Leslie Ellis, and Beth Murphy illustration by Mary Chaney Arizona's rule ... Additional funding was provided by Northwestern University and Duke University. ...

Research paper thumbnail of Empirical Legal Scholarship: Observations on Moving Forward

Northwestern University Law Review, 2019

Bar Foundation. My thanks to Meredith McBride for inviting me to contribute a short concluding es... more Bar Foundation. My thanks to Meredith McBride for inviting me to contribute a short concluding essay situating this inaugural annual empirical issue within the field of empirical legal scholarship.

Research paper thumbnail of Reference Guide on Survey Research

Research paper thumbnail of Panel Three: The Role of Juries and the Modern Judicial System

The American University law review, 1991

Research paper thumbnail of Procedural Justice-Psychological Analysis-Thibaut, J, Walker, L

Research paper thumbnail of The effects of racial heterogeneity on public perceptions of juries, trials, and defendants

Research paper thumbnail of Judicial notebook

Research paper thumbnail of Culture, Language, and Diversity on the Jury

For generations, Latinos were systematically excluded from jury duty. In the 1950s, the Supreme C... more For generations, Latinos were systematically excluded from jury duty. In the 1950s, the Supreme Court tackled the issue when a Latino convicted of murder argued that he had been discriminated against because those of Mexican heritage had been “deliberately, systematically, and ...

Research paper thumbnail of The "Kettleful of Law" in Real Jury Deliberations: Successes, Failures, and Next Steps

Northwestern University Law Review, Nov 29, 2012

According to standard lore, when jurors are doused with "a kettleful of law" at the end of a tria... more According to standard lore, when jurors are doused with "a kettleful of law" at the end of a trial, they either ignore it or are hopelessly confused. We present new evidence from a unique data set: not mock jury experiments or post-trial self-reports, but rather the deliberations of fifty real civil juries. Our intensive analysis of these deliberations presents a picture that contradicts received wisdom about juries and the law. We show that juries in typical civil cases pay substantial attention to the instructions and that although they struggle, the juries develop a reasonable grasp of most of the law they are asked to apply. When instructions fail, they do so primarily in ways that are generally ignored in the debate about juries and the law. That is, the jury deliberations reveal that when communication breaks down, the breakdown stems from more fundamental sources than simply opaque legal language. We identify a few modest pockets of juror resistance to the law and suggest why jury commonsense may in some instances be preferable to announced legal standards. We conclude that it will take more than a "plain English" movement to achieve genuine harmony between laypersons and jury instructions on the law.

Research paper thumbnail of Juries and Viewpoint Representation

Justice Quarterly, Mar 22, 2017

To generate high-quality deliberations, juries should be diverse in terms of not only demographic... more To generate high-quality deliberations, juries should be diverse in terms of not only demographics but also viewpoints. Using data from the Survey of Texas Adults (n = 1380), we examine whether existing processes select for individuals who represent the population on a variety of viewpoint characteristics, particularly whether the process of forming juries selects for people who are more independent-minded versus authority-minded. We find, on average, that those who believe in the importance of speaking English, are less compassionate, support Biblical literalism, and express more concern about the community effects of wrongdoing are more likely to have been former jurors than to not have served. Death penalty support is also modestly predictive of jury membership. Non-jurors rate their neighborhoods as cleaner than do former jurors. Results point to composition effects in the summonsing process and to the possibility that some types of people exempt themselves from this civic obligation.

Research paper thumbnail of The Rise of the Jury in Argentina

Juries, Lay Judges, and Mixed Courts

Research paper thumbnail of Review of Procedure Justice by John Thibaut and Laurens Walker

Research paper thumbnail of Race and Jury Selection: The Pernicious Effects of Backstrikes

A “backstrike” is a peremptory challenge used to strike a prospective juror after the juror has b... more A “backstrike” is a peremptory challenge used to strike a prospective juror after the juror has been accepted onto the jury panel but before the panel has been sworn. Thus, backstrikes permit an attorney to tentatively accept a juror by declining to exercise a peremptory challenge, but then revisit that decision after additional potential jurors are questioned. The data we analyze for this article provide the first systematic evidence on the role played by backstrikes. Our results show that use of backstrikes is common in Caddo Parrish, Louisiana, occurring in 40 percent of the 332 cases we studied. Moreover, controlling for other characteristics, prosecutors had overall between three and five times the odds of using a backstrike on a black prospective juror as on a non-black prospective juror. Depending on the type of case and the race of the defendant, the odds of prosecutorial backstrikes against black prospective jurors could be as high as almost nine times that of non-black one...

Research paper thumbnail of Government Takings of Private Property: Kelo and the Perfect Storm

In Kelo v. City of New London, the U.S. Supreme Court ruled that governments are permitted to use... more In Kelo v. City of New London, the U.S. Supreme Court ruled that governments are permitted to use the power of eminent domain to force the sale of private property for the purpose of promoting economic development. The decision provoked an unusually widespread popular reaction of outrage. In this chapter, we document the extreme public reaction to Kelo, which cut across political party, race, gender, and education. We focus on the rift between the public's expectations about the circumstances under which government should be permitted to take private property, on the one hand, and eminent domain law, on the other. The Supreme Court has long interpreted the "public use" requirement of the Fifth Amendment quite loosely, but for many decades this went mostly unnoticed by the general public until the Supreme Court declared in Kelo that taking homes for the purpose of economic development satisfies the public use requirement. The Kelo decision seemed to trigger a sudden col...

Research paper thumbnail of The hidden Daubert factor: how judges use error rates in assessing scientific evidence

In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court provided a framework u... more In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court provided a framework under which trial judges must assess the evidentiary reliability of scientific evidence whose admissibility is challenged. One factor of the Daubert test, the “known or potential rate of error” of the expert’s method, has received considerably less scholarly attention than the other factors, and past empirical study has indicated that judges have a difficult time understanding the factor and use it less frequently in their analyses as compared to other factors. In this paper, we examine one possible interpretation of the “known or potential rate of error” standard that would treat the factor more broadly, considering direct assessments of a method’s validity as assessments of the method’s potential rate of error, even when numerical error rates are not mentioned. To assess the extent to which judges use the error rate factor in this “implicit” sense, we examined 208 federal district court cases, coding for the number of words judges spent analyzing expert evidence in light of the Daubert factors and other evidentiary considerations. We found that judges faced with a Daubert challenge often undertake a detailed analysis of the quality of the methodology used by the expert rather than simply relying on proxies for the quality of the method such as peer review and general acceptance. Analysis of a method’s potential rate of error was significantly more common and longer than analysis using any of the other Daubert factors. This implicit error rate analysis also predicted the final admissibility ruling of the evidence and varied across expert disciplines. Our data support the notion that judges engage in substantial efforts to directly assess the validity of the scientific method before them when responding to a Daubert challenge. That is, they engage substantially in central processing in making methodological evaluations rather than merely relying on the peripheral cues of peer review and general acceptance. This finding lays the groundwork for future assessments of the obstacles judges face in these more demanding evaluations.

Research paper thumbnail of Diversity: Implications for Minority Jurors and for the Jury

Research paper thumbnail of Be careful what you wish for: The paradoxical effects of bifurcating claims for punitive damages

Wis. L. Rev., 1998

BE CAREFUL WHAT YOU WISH FOR: THE PARADOXICAL EFFECTS OF BIFURCATING CLAIMS FOR PUNITIVE DAMAGES ... more BE CAREFUL WHAT YOU WISH FOR: THE PARADOXICAL EFFECTS OF BIFURCATING CLAIMS FOR PUNITIVE DAMAGES ... STEPHAN LANDSMAN SHARI DIAMOND LINDA DIMITROPOULOS MICHAEL J. SAKS* ... Among the basic tenets of American adversarial justice are that the ...

Research paper thumbnail of When Law Calls, Does Science Answer? A Survey of Distinguished Scientists & Engineers

Daedalus, 2018

Sound legal decision-making frequently requires the assistance of scientists and engineers. The s... more Sound legal decision-making frequently requires the assistance of scientists and engineers. The survey we conducted with the cooperation of the American Academy examines the views of the legal system held by some of the nation's most distinguished scientists and engineers, what motivates them to participate or to refuse to assist in lawsuits when asked, and their assessment of their experiences when they do participate. The survey reveals that a majority of the responding scientists and engineers will agree to participate when asked, and when they turn down requests, the most common reasons are lack of time and absence of relevant expertise. Dissatisfaction with legal procedures is also a deterrent, but our respondents indicated that some procedural changes would make their participation more likely. In addition, participation appears to be associated with a greater belief in the ability of the legal system to deal well with scientific matters.

Research paper thumbnail of When Law Calls, Does Science Answer? A Survey of Distinguished Scientists & Engineers

Daedalus, 2018

Sound legal decision-making frequently requires the assistance of scientists and engineers. The s... more Sound legal decision-making frequently requires the assistance of scientists and engineers. The survey we conducted with the cooperation of the American Academy examines the views of the legal system held by some of the nation's most distinguished scientists and engineers, what motivates them to participate or to refuse to assist in lawsuits when asked, and their assessment of their experiences when they do participate. The survey reveals that a majority of the responding scientists and engineers will agree to participate when asked, and when they turn down requests, the most common reasons are lack of time and absence of relevant expertise. Dissatisfaction with legal procedures is also a deterrent, but our respondents indicated that some procedural changes would make their participation more likely. In addition, participation appears to be associated with a greater belief in the ability of the legal system to deal well with scientific matters.

Research paper thumbnail of What a (Very) Smart Trial Judge Knows About Juries

Depaul Law Review, 2015

Our thanks to Bob Burns for his thoughtful feedback. ** J.D., Northwestern University School of L... more Our thanks to Bob Burns for his thoughtful feedback. ** J.D., Northwestern University School of Law. 1. "[Appellate judges] should take into account the fact that the trial judge is likely much more familiar with the case than they are. .. . [As an appellate judge,] you defer to the lower court because you think they know more about what's going on, which is true." A Conversation with Associate Justice Stephen Breyer and Professor Stephan Landsman, YOUTUBE (Apr. 28, 2014), https://www.youtube.com/watch?v=yBMD7hN9wRc; see also State v. Johnson, 199 A.2d 809, 817 (N.J. 1964) (stating that an appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy"). Authority for this deference is also reflected in Federal Rule of Civil Procedure 52(a)(6)

Research paper thumbnail of Arizona's rule permitting juror discussions during civil trials promised multiple benefits and raised multiple concerns, but a novel study involving videotaping …

…, 2003

Page 1. Inside the jury room Evaluating juror discussions during trial by Shari Seidman Diamond, ... more Page 1. Inside the jury room Evaluating juror discussions during trial by Shari Seidman Diamond, Neil Vidmar, Mary Rose, Leslie Ellis, and Beth Murphy illustration by Mary Chaney Arizona's rule ... Additional funding was provided by Northwestern University and Duke University. ...