I agree with you, Christine. Earlier today, Brett McDonnell commented: "There are some buried assumptions about class and what the criminal justice system is for that I think underly a lot of the commentary." My sense is that the issues of class are not so much about "what the criminal justice system is for" but about what kind of people Ken Lay and Jeff Skilling are. The jurors cannot walk in their shoes, but perhaps some of our participants can.

I would agree that the verdict revealed some issues about class, particularly the widening gap between the upper class and the working class. Given the broader issues Tom Joo has pointed out about the defects in our retirement plans, the gap promises to get wider. The truth of the matter is that a very small percentage of American people can relate to the Lays of the world, which had me wondering if such executives can really find a "jury of their peers." While the rest of society may be okay with their wealth in the abstract (after all, it symbolizes reaching the American dream), it is more problematic up close--particularly if we believe they achieved the wealth and the dream through foul means.

"The jurors cannot walk in their shoes, but perhaps some of our participants can."

I find this post condescending against American jurors. True only of white collar crimes?

They had the chance to defend themselves well. Jury consultants, etc. Play by the rules -- if you can't handle the loss in risky business, don't risk it. Your guys lost, final score.

As a law student, I spent a semester interviewing jurors in death penalty cases . .

the reason why you have 12 jurors is that while one juror may miss a point or misunderstand, someone else will get such

like #3 i find your posts . . .

Indeed, what kind of person is it that doesn't think to declare an investment in a business that trades with a company they run. Or thinks they are a net purchaser of shares because their sales don't count?

It's not the ordinary jurors that don't understand the reality...

Christine: I agree that jurors use the kind of heuristics you're talking about, but I'm not sure that to do so is always wrong. [The example of the guy in the construction uniform is blackly funny, but kinda unfair.] We lawyers can talk about the black letter 'til we're blue in the face, but to some extent the black letter operates as a proxy for fuzzier questions of Right and Wrong, and isn't this the theory behind the lay (whoops) jury? Of course whether that's a good theory is a horse that has been, and will continue to be, pretty well beaten...

Christine, I thought this was a really good and important post, and I'm surprised by the tenor of comments #3, 4 and 5. The bottom line is that we ask jurors to try to imagine how they would make decisions in a world that, to them, is often grossly counterfactual. This is true in all types of cases, not just white collar or death penalty, but some counterfactuals surely must be more opaque to jurors than others.

This doesn't excuse Lay or Skilling or mean that the jury got it wrong. But I think Christine was onto something about the difficulties jurors may face when trying to grade decision-making in situations that are very foreign to them.

"This is true in all types of cases, not just white collar or death penalty, but some counterfactuals surely must be more opaque to jurors than others."

C-O-N-D-E-S-C-E-N-D-I-N-G

This doesn't excuse Lay or Skilling or mean that the jury got it wrong. But I think Christine was onto something about the difficulties jurors may face when trying to grade decision-making in situations that are very foreign to them.

S-U-C-K-U-P

I can understand why you don't get it.
They fed your firm.

Attorneys paid to represent corporate interests may be unable to think beyond that lens. You might lose perks. Luckily, American jurors and voters come from a bigger pool.