Studies in Law, Politics and Society: Volume 49

In this chapter, I address a number of the difficult questions surrounding the current decline of the American trial. I begin with a compressed and evaluative account of what the contemporary trial is for us. This involves both an account of what we do at trial and a more global account of its significance. I discuss some of the theoretical issues that such an account poses. I then provide a short account of how we have gotten to where we are (“the past”). I provide a summary of recent social scientific findings that suggest that the trial is in current decline and some preliminary speculations as to the explanations for that decline (“the future”). Finally, I suggest the happy possibility that explanation of the future may be quite limited in this matter.

This chapter analyzes the ways in which jurors use everyday storytelling techniques in their deliberations. It begins by reviewing the literature on how jurors receive and process evidence, emphasizing narrative and storytelling. It then presents some new, qualitative linguistic data drawn from actual jury deliberations, which shed light on jurors' standards of evidence and proof, as well as on the persuasive tactics they use in dealing with each other. Although these data are limited, they provide an interesting basis for assessing existing ideas about jurors evidence-processing and thinking more broadly about the strengths and weaknesses of the jury system.

After considering the material before me, I have formed the opinion that it shall be permitted for the petitioner to examine the file under scrutiny. Deliberation on the case did not take place behind closed doors and there is no lawful prohibition to the examination…in addition I accept the position of the respondent, according to which in spite of the fact that a large portion of the details of the affair were published in the judgment…the file contains material whose revelation can cause unnecessary harm to the central witness…the examination considered will be contingent on an undertaking in writing…according to which the petitioner will not publicize anything that will damage the privacy of the victims and their families beyond the damage that already occurred by the court judgment. (Decision of magistrate Yigaal Marzel, 2006 in the matter of C.A 125/50 Yaakobowitz v. Attorney General)

Trials provide social movements with a public arena that can advance social movement goals. The adversarial structure of a trial gives social movements an opportunity to articulate their grievances and to subject their opponents to cross-examination. The drama associated with trials often attracts media attention, thus creating a broad audience for the movement's message. Moreover, trials can sometimes provide opportunities for collective experiences, bringing together activists, lawyers, experts, and other actors whose combined efforts can both strengthen the movement and promote its goals.

Beginning with Rawls's claim that the Supreme Court is the exemplar of public reason, we develop a theory of how reasoned arguments are used in political disputes. We argue that justices often make piecemeal arguments and that this fragmented style of argumentation extends beyond the bench. The result is that many political disputes are “legalized” – not because public arguments are necessarily about laws, but because public arguments often unfold in the same ambiguous way that they do on the Court. We illustrate our argument by examining the use of American Dream talk in the dispute over same-sex marriage (SSM).

Scholars increasingly recognize the centrality of legal ideas and language to the political vision that inspires American conservatism. However, relevant studies have been limited to the discursive practices that motivate conservative activism at the grass-root level. Exploration of the legal discourses employed by prominent public officials thus carries significant scholarly potential. For example, this chapter's investigation of President Ronald Reagan reveals that his political vision was suffused with legal discourse. Reagan's legal discourse, moreover, has exerted constitutive effects both on American conservatism and on the form and substance of a great deal of contemporary American public policy.