f/k/a archives . . . real opinions & real haiku

August 1, 2005

Frank Easterbrook calls juries “twelve high school dropouts”

Filed under: pre-06-2006 — David Giacalone @ 1:46 am

Frank H. Easterbrook (famous for his surly-burly manner on the 7th Circuit and his

Art. III “Hottie Bear” status over at Under Their Robes), must have hibernated through

Law Day ceremonies last May.  The 2005 Law Day theme was “The American Jury:

We the People in Action.”   In our May 1st post we noted:

LawDayJury  The ABA’s Law Day theme page got it right about juries:

“The jury is the embodiment of democracy. We entrust juries—small

bodies of ordinary men and women—with decisions that involve the

liberties and property of defendants. In doing so, we confirm our faith

in the ability of people to make just and wise decisions, and that is the

very definition of democracy. We also see the jury system as an opportunity

to educate Americans in law, legal processes, and decision-making in a


Like the ABA (which is rarely praised at this website), we quoted from Alexis de Tocqueville

in his Democracy in America (free download from Project Gutenberg):

The jury, which is the most energetic means of making the people rule,

is also the most efficacious means of teaching it how to rule well… The jury …

may be regarded as a … public school, ever open, in which every juror learns

his rights.


EasterbrookMug  Frank Easterbrook apparently has quite a different view of juries.  On July 28,

the Antitrust Modernization Commission held hearings on Civil Remedies Issues.  Judge

Easterbrook was a witness on the issue of Contribution, and submitted his 1980 article

(with Landes and Posner) “Contribution Among Antitrust Defendants: A Legal & Economic

Analysis,” 23 Journal of Law & Economics 331, as his Statement to the Commission. 


Easterbrook continues to argue that those who want to change the No-Contribution rule have

not made their case, and that the current rule leads to better deterrence and stronger

antitrust enforcement.  A very reliable audience member tells me (as confirmed by another

witness) that Judge Easterbrook referred to juries during his testimony as “twelve high school dropouts.”   His point, I suppose, is that non-expert juries can make mistakes when applying

the antitrust laws or assigning levels of culpability to defendants, as would be required under a Contribution Rule. 


Twelve high school dropouts.”  Isn’t that charming?  It will be interesting to see whether the good

judge’s (frankly undiplomatic) phrase shows up in the official transcript of the hearing.  This post

is my effort to  make sure it’s on the public record.

tiny check Perhaps Judge E. should do a little remedial study on the American jury system. crayon box 

He could start with this page to color from the Michigan State Bar’s Law Day Contest.

As our post noted in May, the picture (with jury, lawyer, judge and witness) and the

included questions make a fun learning experience.  Next. Charm School.

tiny check  By coincidence, Texas lawyer Clay Conrad wrote an excellent piece yesterday

at jurygeek, where he asserted “We do not need better jurors: we need better lawyers,

better experts, and – perhaps – better judges.”  (via Mike Cernovich)




sumo  Master Issa saw a little pomposity in his day, too:


foolish cat–
yet he knows which futon
is his




vain man…
the autumn moon




he’s become a
sumo wrestler! the proud






short summer night–
foolish flowers, clever flowers




translated by David G. Lanoue


tiny check  Tangential aside:  Writing this post caused a pleasant little flashback for your Editor

— reminding me of one of my brightest episodes as an antitrust advocate at the FTC, 

twenty-one years ago.  Through an enormous quirk in the federal antitrust caste system,

I ended up drafting the legal analysis of the antitrust per se rule and rule of reason that

appeared in the Amicus Curiae brief of the United Staes in NCAA v. Bd. of Regents,

468 U.S. 85 (1984).  The brief opposed the position of the NCAA, which was repesented

at the Supreme Court by then-professor Frank H. Easterbrook.  The Court adopted the

groundbreaking reasoning of the U.S. [smile], finding that the Association’s attempt to act

as the sole agent selling television rights for in-season football games for all of its members

violated the rule of reason, without having to do a “fullblown” analysis of market power.  

For the first time this evening, I noticed that the caste system — SG over Antitrust Division 

over  FTC — did still exist when it came to the Court’s opinion.   Although the Commission’s

General Counsel and I were listed on the cover and inside the amicus brief, our FTC employment

status apparently warranted exclusion from the list of lawyers “on brief” with the Solicitor

General.     Like juries, lowly FTC lawyers sometimes get no respect from the judiciary. 


                                                                                  sumo neg

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