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Abstract:
A progressively larger portion of social ordering occurs through mediation. Lawyers are often involved in mediation. From one perspective, mediation is simply facilitated negotiation. Thus the issues that pervade the ethics of negotiation reappear in the context of mediation without much change.

Mediation, however, promises much more than facilitated negotiation. "Transformative mediation", now widely practiced, aims not primarily at maximizing outcomes, but at the moral transformation of the parties. This form of mediation poses much more fundamental questions about legal ethics and the lawyer's role. These questions implicate the general morality of legal and political discourse and the interrelationships of the moral, legal, and political spheres.

Abstract:
This short essay was written for a symposium marking the fiftieth anniversary of the classic film's appearance. With a great cast, it remains perhaps the most compelling portrayal of an American jury in action. I begin by noting eight details in Twelve Angry Men which are so obvious that their significance may be difficult to discern. I then discuss the significance of the film's being a drama, indeed, a drama about a drama. I discuss the kind of truth that a dramatic portrayal of the jury can aspire to and what it can add to social scientific accounts. Finally, I identify the six dramatic tensions that define the film's meaning.

Law & the Humanities, Litigation & Procedure, Legal History, Jurisprudence & Legal Philosophy

Abstract:
This short programmatic essay, written for a collection celebrating the seventy-fifth anniversary of Karl Llewellyn's paper "On Philosophy in American Law," sketches the elements of an adequate philosophy of law today. It argues that an adequate philosophy of law must be empirical, interpretive, and critical. It suggests that the lines between philosophy and both anthropology and rhetorical studies will blur. Llewellyn was right in stressing the relative importance of legal practices in understanding what law is, but the early realists were without the relatively more adequate philosophies of human practice since developed and relatively greater range of social scientific findings on those practices since made. Because of its interpretive and normative aspects, jurisprudence will remain one of the humanities and will never be fully naturalized, but it may come to be better informed.

Abstract:
Scholars have drawn on the rich literature on narrative in their research into the American trial, a perspective at least implicitly endorsed by the United States Supreme Court in the Old Chief case. This is all to the good. However, the real power of the "narrative approach" emerges when one thinks concretely about what is distinctive to the different kinds of narrative employed at trial. This article explores the rhetorical and epistemological significance of trial narrative in the full context of the "consciously structured hybrid" of language practices that make up the American trial. Such a perspective enables us to admire a well-tried case as realizing practical truths beyond story-telling.

Abstract:
This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social significance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

trials, procedure, justice, bureaucracy

Abstract:
This essay confronts claims that the American trial court poses a threat to the rule of law. I argue that the American trial court is a forum within which a rule of law distinctively appropriate to our society may be realized. The narrative and critical devices of the trial court embody norms that are intrinsic to law as we practice it in a manner analogous to Dworkin's claim that "principles" are intrinsic to law. There is no reason to identify law with bureaucratic-formalist modes of adjudication, which, I argue, have a higher level of arbitrariness than do the methods employed at trial. I then provide a short summary of those methods and their import. Finally, I address the work of two authors who argue that the integrity of the American trial is threatened by its too frequent failures to achieve factual accuracy. Though disputing some of their prescriptions, I agree that the rule of law, under either understanding, cannot be realized without a serious attention to issues of factual accuracy and I argue that our most serious weaknesses here stem from different sorts of failures at the pretrial stage.

Jurisprudence, Legal Philosophy, Litigation, Procedure

Abstract:
The word "know" has an inevitably normative bite. I can believe that the moon is made of green cheese, but I cannot know it. So the question that forms the title of this essay really contains two questions: (1) What do we do in the trial court? and (2) Does that amount to knowledge? The first question calls for linguistic phenomenology, as Hannah Arendt put it, and the second question for a kind of theorizing that has a long and important history. This essay summarizes that history and then identifies some of the philosophical commitments that would allow us to say that the practical understandings that emerge at trial may fairly be called knowledge.

Abstract:
Milner Ball occupies a unique place in American legal thought. Over the decades, in many articles and four books, he has developed a coherent and critical theology of American law. He combines philosophical sophistication with a suspicion of the natural law tradition often invoked by philosophers and theologians in their understandings of law. This essay shows how Ball's contributions in three areas are animated by an underlying vision. The first section focuses on his conversations with Hannah Arendt. He generally agrees with Arendt in her skepticism about natural law and the importance of narrative and, in particular, the narrative of beginnings. On the other hand, he criticizes her account of the American beginning and her conviction that the Biblical tradition is politically irrelevant. The second section discusses Ball's account of the importance of story and theatre in American law, the centrality of finding the right metaphors for understanding law, his emphasis on legal rhetoric and legal practices, and his sharp criticism of the rule of law as the law of rules. The final section of the essay links both his narrative understanding of foundations and his theatrical account of legal procedures to the form of "religionless Christianity" he developed from two of his primary theological sources, Karl Barth and Dietrich Bonhoeffer.

Jurisprudence, Legal Philosophy, Humanities

Abstract:
This Symposium addresses issues raised by Robert Burns's A Theory of the Trial and includes short essays by scholars in a range of disciplines such as rhetoric, social theory, social psychology, law, legal history, and comparative law. The book provides an example of "the interpretive turn" in the social sciences. Several of the contributions explore and challenge the ways in which the book presents an idealized picture of the American trial that still claims to be an accurate interpretation of the what the trial is. Several question the significance of the highly contextual form of decision-making explored in the book to the rule of law. Another questions the extent to which the work is an interpretation specifically of the American trial as opposed to trials in other common law countries. Burns provides a response to the essays.

rhetoric, social theory, social psychology, law, legal history, comparative law

Abstract:
The article begins with a description of the ways in which some of the most striking internal features of the trial are consistent with a normative model which the author calls "The Received View". The Received View understands the trial, with is supporting constitutive evidentiary rules and principles, to be the institutional device to make the Rule of Law operational. In particular, the most basic of those rules and principles are designed to provide to the jury reliable facts plastic solely to the authoritative norms that embedded in the jury instructions.

The article then describes a series of anomalies in the legal structure of the trial that the Received View, however powerful, fails to explain. Together, they suggest that something else is afoot in the trial, that it is not simply a device for placing the stamp of legal norms on value-free accounts of "what is the case". These anomalies describe aspects of the trial that, arguably, reflect our "considered judgments of justice," those convictions in which we often "make intuitively and in which we have the greatest confidence." [Rawls] This suspicion is confirmed by a review of the social science literature on the trial. The most reliable findings portray the jury as competent, deeply engaged with the evidence, focused on doing substantive justice, dependent on the trial's different narratives, and consciously exercising "political" judgement. That portrayal is inconsistent with the Received View.

The article then argues that the Received View cannot adequately describe the cognitive processes at work at trial, that it literally cannot be followed. An alternative, much richer and more complex model of decision-making, more consistent with the legal structure and social science literature, is proposed and explained. For us, the trial provides a forum within which to resolve the issues of relative importance among the competing principles that structure the sharply competing spheres of modern life.