The special verdict is plagued by two philosophical paradoxes: the discursive dilemma and the lottery paradox. Although widely discussed in the philosophical literature, these paradoxes have never been applied to jury decision making. In this Essay, I use the paradoxes to show that the special verdict’s vote-reporting procedures can lead judges to render verdicts that the jurors themselves would reject. This outcome constitutes a systemic breakdown that should not be tolerated in a legal system that prides itself on the fairness of its jury decision-making process. Ultimately, I argue that, because the general verdict with answers to written questions does not suffer from these paradoxes, it should be adopted in place of the special verdict.
Jury Voting Paradoxes,
Mich. L. Rev.
Available at: http://repository.law.umich.edu/mlr/vol113/iss3/2