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Writing Better Jury Instructions: Antitrust as an Example

63 Pages Posted: 6 Apr 2016 Last revised: 7 Jan 2018

Joshua P. Davis

University of San Francisco - School of Law

Shannon Wheatman

Kinsella Media LLC

Cristen Stephansky

Kinsella Media LLC

Date Written: April 1, 2016

Abstract

Understanding the law is difficult. Getting juries to understand the law is more difficult. Yet we provide evidence that it can be done, even in complex areas such as antitrust. This Article tests whether jury instructions can be written in a way that maintains fidelity to the law - indeed, improves on fidelity to the law compared to standard jury instructions - while also permitting jurors to understand the relevant legal standards. But it goes further than that. It proposes making empirical testing an integral part of drafting model jury instructions. It also shows that such empirical testing is feasible by harnessing the power of the Internet. It undertakes those efforts by drafting and testing jury instructions in two challenging areas of antitrust law. The results of the empirical testing provide reason for optimism about the prospects of juries understanding the law, if those who draft jury instructions test whether they are comprehensible and modify draft jury instructions in light of empirical results.

Keywords: jury instructions, antitrust law, empirical testing, juries

Suggested Citation

Davis, Joshua P. and Wheatman, Shannon and Stephansky, Cristen, Writing Better Jury Instructions: Antitrust as an Example (April 1, 2016). 119 W. Va. L. Rev. 235 (2016-2017); Univ. of San Francisco Law Research Paper No. 2016-12. Available at SSRN: https://ssrn.com/abstract=2759634

Josh Paul Davis (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

Shannon Wheatman

Kinsella Media LLC ( email )

2120 L St
Washington, DC 20037
United States

HOME PAGE: http://www.kinsellamedia.com

Cristen Stephansky

Kinsella Media LLC ( email )

2120 L St
Washington, DC 20037
United States

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