Know Your Rights-Saving Person, Biz, Group or America Could Depend on a Dozen Citizens-Including You–Makan Delrahim and Fully Informed Jury Association on Jury Nullification Power and Monopoly
Part I will touch briefly (#1) on President’s Day, but the bulk of it will focus on prior antitrust enforcer Delrahim on the lawful ways and proven U.S. history of battling monopoly power with antitrust law.
Several of Delrahim’s points below will have the added bonus of including specific items involving manufactured housing in the 21st century. Meaning, industry readers and outsiders looking in will have the dots connected to his address of competition law and antitrust issues in a meaningful manner.
Those who doubt or question if current antitrust laws are sufficient will discover in the presentation by an expert (Delrahim) laced with examples of how they can apply in MHVille. They will also see evidence of how Delrahim’s points are developing in the world of more affordable manufactured housing.
Part II will be a look at jury power, with references coming in part from the Fully Informed Jury Association (FIJA), but other sources too. Juries and a juror’s power, like manufactured housing or the monopoly related issues, are often misunderstood. Once people of good will better understand their rights and powers under our jury system, perhaps more will recognize the ability of the jury to be a check against an abuse of governmental power. Knowing more about both of these issues are practically useful to pros and advocates alike.
Sharing that knowledge and understanding is as American as apple pie.
Part I
1). Today happens to be Presidents Day. Thomas Jefferson became the third U.S. President. Before diving into the headline topics of Jury Rights, Jury Power, Quotable Quotes and Personal Reflections on Jury Nullification, a few sentences on Presidents Day are warranted. “Washington’s Birthday is a U.S. federal holiday celebrated on the third Monday of February in honor of George Washington, the first president of the United States. Increasingly, the holiday has become an occasion to celebrate the birthdays of both President George Washington and President Abraham Lincoln. Many Americans call the holiday Presidents’ Day.” That is according to the U.S. Embassy to Switzerland website. According to Britannica: “Presidents’ Day, in the United States, holiday (third Monday in February) popularly recognized as honouring George Washington and Abraham Lincoln. The day is sometimes understood as a celebration of the birthdays and lives of all U.S. presidents.” It is worth noting that several of the founding fathers expressed strongly held beliefs on the power of individual jurors to nullify enforcement of a law.
2). That said, let’s focus on Trump-era DOJ Assistant Attorney General Makan Delrahim’s address on the importance of enforcing restrictions on monopolies, a.k.a. antitrust laws. Per the DOJ website at this link here, Delrahim said the following.
The digital economy is a fact of life, but it is not all things to all people. There has been robust public discussion about whether the broader economy, undoubtedly transformed by digital technologies, is working well for everyone. While some commenters have tried to dispatch the antitrust laws to address these problems, I do not believe the antitrust laws are bent towards values other than competition. As Justice Black explained in Northern Pacific Railway v. United States, the Sherman Act, our first U.S. antitrust law, is “aimed at preserving free and unfettered competition as the rule of trade” and “the policy unequivocally laid down by the Act is competition.”
Therefore, the right question is whether a defined market is competitive. That is the province of the antitrust laws.”
Note carefully what Ast. AG Delrahim said. The “right question is whether a defined market is competitive.”
If someone looks at the following from earlier in the same talk, Delrahim stated: “Sound policy, buoyed by the rule of law, and markets that are governed by competition have allowed the United States to become a “cradle of innovation.” “All the world over benefits from creativity and ingenuity.”
While the context for Delrahim was digital technologies, his statement make it clear that the principles could be applied to any “defined market,” thus including manufactured housing or the broader U.S. housing market.
Once more for emphasis, as Delrahim put it: “whether a defined market [i.e.: any defined market] is competitive.”
That noted, let’s return to his remarks per the DOJ, and then consider monopolies and jury rights, in that sequence.
As we think about antitrust enforcement in the digital economy, the key issues that antitrust enforcers must untangle are whether a company is growing due to superior price, quality, and innovation, or whether some transaction or business practice is, on balance, anticompetitive in purpose and effect.” …
I would like to describe some historical analogs and set out a few scenarios that might attract the Antitrust Division’s attention.
The United States has a long history of trustbusting. Early cases against titans of industry offer valuable lessons for today’s antitrust enforcers. I will briefly discuss three of them.
The first is Standard Oil v. United States. Let me acknowledge at the outset that Standard Oil is about a decidedly non-digital world. The Standard Oil Company was an industrial giant, however, and it was revered for its patented technologies and commercial prowess. It rose in prominence during a period of rapid change that coincided with the Second Industrial Revolution. It also amplified the value of kerosene and petroleum to consumers in transformative and unforeseen ways. One can draw interesting parallels between those circumstances and the present day.” …
Standard Oil acquired many refineries in the late 19th century. Refiners that would not sell were underpriced and driven out of the market. Price-cutting is the essence of competition, of course, but the Standard Oil case and later Supreme Court cases helped establish what would become settled law: there are some things that a monopolist cannot do. A company does not ordinarily violate the antitrust laws for merely exercising legitimately gained market power. But even if a company achieves monopoly position through legitimate means, it cannot take actions that do not advance plausible business goals but rather are designed to make it harder for competitors to catch up. In some other contexts, we have referred to this concept as the “no economic sense test.” That test inquires into whether a monopolist’s conduct would make no economic sense but for its tendency to eliminate or lessen competition.”
3). Let’s pause from Delrahim’s narrative and explore some of what he said as it could be applied to developments in the diminished manufactured housing industry (i.e.: MHVille).
“But even if a company achieves monopoly position through legitimate means, it cannot take actions that do not advance plausible business goals but rather are designed to make it harder for competitors to catch up.”
“In some other contexts, we have referred to this concept as the “no economic sense test.” That test inquires into whether a monopolist’s conduct would make no economic sense but for its tendency to eliminate or lessen competition.””
More recently, in the wake of the antitrust and consumer rights concerns examined in a detailed legal analysis by Samuel Strommen at Knudson Law, the question has been broadened to which other actors in manufactured housing appear to be colluding based on evidence found from the respective firms own documents, remarks, and behaviors. Strommen pointed to the manufactured home communities’ segment of the industry, as well as to the production-retail-finance aspect of manufactured housing. Our trade media platforms have done similarly.
5). Then consider what Delrahim said above. Keep in mind that per two sources to MHProNews, Ast DOJ AG Delrahim met with a team of attorneys to consider a probe into possible antitrust violations in manufactured housing. Our knowledge of that meeting is frankly limited to two distinct tips. For example. Was the process of probing the manufactured housing industry continued when Biden Administration officials, specifically the current Ast AG over the antitrust division, Jonathan Kanter, moved in? That is not known. Was the probe of manufactured housing being taken seriously by DOJ enforcers during the Trump era under Delrahim? Beyond knowledge of that meeting, that too is unclear.
6). But the fact that each tipster which asserted the claim that Delrahim and a team of attorneys met to discuss antitrust issues is itself a serious point. That alone may be sufficient for some state antitrust assistant AGs to wonder, ‘is part of the affordable housing crisis in my state, or the U.S. more broadly, caused by a lack of competition among or from producers, retailers, communities, and developers of HUD Code manufactured homes?’ ‘Is there evidence of collusion occurring, as Strommen, Doug Ryan at Prosperity Now, former MHI award winner Marty Lavin, MHARR, and others have asserted?
7). With respect to the concerns raised by Delrahim in his address exploring antitrust enforcement bullets cited above, consider the following statements by individuals involved in manufactured housing and the Manufactured Housing Institute (MHI).
Public officials and private attorneys should know that there are reasons to think that the purported violations in the manufactured housing industry of U.S. antitrust (i.e.: anti-monopoly, competition fostering) laws are apparently ongoing. What follows are not ‘one and done’ violations but of the law, but rather appear to be part of broader pattern of violations by interconnected actors that will be evidence herein. One aspect of the significance is that topic of an ongoing conspiracy is this. As the DOJ has said in the case of an ongoing conspiracy, the statues of limitations on certain behaviors do not start until the final conspiratorial act has occurred.
That said, consider these remarks. Two distinctive sources. Both connected to the Manufactured Housing Institute (MHI), and each a ‘loyal’ member of MHI. The irony in the remarks quoted below by Andy Gedo is that he was supposedly defending against claims of apparent antitrust violations in a rather public forum.
“Deepen and widen your moat and keep out the competition.” That is what Kevin Clayton claimed Warren Buffett has taught his corporate leaders, and which Kevin asserted they in turn teach to their team members. With Ast. AG Delrahim’s quoted thoughts in mind, look carefully at the report linked below.
8). Delrahim was a Trump (R) official. To keep this report more nonpartisan (or bipartisan), consider the following thoughts from the Biden (D) White House Fact Sheet on Competition (JULY 09, 2021).
…For decades, corporate consolidation has been accelerating. In over 75% of U.S. industries, a smaller number of large companies now control more of the business than they did twenty years ago. This is true across healthcare, financial services, agriculture and more.
That lack of competition drives up prices for consumers. As fewer large players have controlled more of the market, mark-ups (charges over cost) have tripled. Families are paying higher prices for necessities—things like prescription drugs, hearing aids, and internet service.
Barriers to competition are also driving down wages for workers. When there are only a few employers in town, workers have less opportunity to bargain for a higher wage and to demand dignity and respect in the workplace. In fact, research shows that industry consolidation is decreasing advertised wages by as much as 17%. Tens of millions of Americans—including those working in construction and retail—are required to sign non-compete agreements as a condition of getting a job, which makes it harder for them to switch to better-paying options.
In total, higher prices and lower wages caused by lack of competition are now estimated to cost the median American household $5,000 per year.
9). Like Biden, Trump, their respective political parties or not, the remarks above are correctly quoted and are arguably broadly accurate in their respective descriptions. In this instance, possible paltering or posturing by the respective sources is not being considered.
10). With respect to manufactured housing more specifically, the observation from the Biden White House Fact Sheet on Competition that: “In over 75% of U.S. industries, a smaller number of large companies now control more of the business than they did twenty years ago” holds true for MHVille.
According to some sources, three U.S. firms have about 80 percent of the market share of manufactured home production. Clayton Homes controls about half of the market. Another roughly 30 percent are controlled by Skyline Champion (SKY) and Cavco Industries (CVCO). That noted, for historical context, the following copy of an industry overview article was published in June 20o4 about 2003 manufactured housing industry data. Some 20+ years ago, the following where the yearend results per the now defunct Manufactured Home Merchandiser Magazine. That publication in turn cited official sources.
Several of those top 25 firms in 2004 are now history. Some have been absorbed into one of the so-called Big Three. Others are shuttered and were forced out of business, some perhaps by forces that they did not completely understand at the time. Note that in 2002, Berkshire Hathaway acquired a sizable stake in Oakwood Homes Corporation. In 2003, after a legal battle that Kevin Clayton called “ugly” during a video interview posted in a report linked here, Berkshire bought Clayton Homes outright. See linked reports in this article to learn more about those events.
11). The story of Buffett’s buyout of Clayton Homes is told in a report by Fast Company, reviewed in detail below.
a) Among the remarks that follow from his linked address on the problems associated with monopolization is this one: “First, as the Microsoft case and other enforcement actions involving digital technologies show, we already have in our possession the tools we need to enforce the antitrust laws in cases involving digital technologies. U.S. antitrust law is flexible enough to be applied to markets old and new.”
That ought to be kept in mind for those who claim that new legislation is needed. Per Delrahim, that posture is nonsense.
b) Quoting Jefferson’s letter to James Madison on the draft of the U.S. Constitution “I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal & unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land & not by the law of Nations.” Restrictions against monopolies was no small item. There is a case to be made that the Boston Tea Party was as much a protest against the tea monopoly as it was against the tea tax. The founders and numbers of colonists understood that corporate power – monopoly power held by a company or small group of companies – often went hand in glove with abusive government that failed to represent the interests of the people over the connected.
In and beyond manufactured housing, both one market dominant monopoly power and oligopoly style monopoly power are to be avoided. Again, while Delrahim’s address was on the digital space, where there is a verbalized widespread bipartisan consensus that a handful of Big Tech/social media platforms hold oversized power, something similar has developed in manufactured housing. Several national antitrust suits have been launched in the last half of 2023 against some higher profile members of the Manufactured Housing Institute (MHI), and the complaints are often about abuses or “predatory” behavior of those firms precisely because they have seemingly colluded and exercise market power.
c) Delrahim said: “…clever positioning should not obscure what is otherwise ordinary evidence of an antitrust violation. Where a company has market power, enforcers should be circumspect about conduct that does not plausibly advance a legitimate business objective and transactions that eliminate competition.” He also spoke about “restraint of trade and monopolies,” the need “to understand what conduct is anticompetitive and thus unlawful,” as well as “effects to create or heighten barriers to entry.” The topic of barriers of entry, persistence, and exit has been explored by MHProNews and our MHLivingNews sister site several times, including in the article linked below.
As time has ticked on, more evidence for how those barriers are operating in MHVille have been explored numbers of times in our reports with analysis.
13). Those points noted, here are the balance of the remarks after the pull quotes above in Part 1 #2) by Delrahim in context.
…The second case I will discuss is United States v. AT&T, which was filed in 1974.
The American Telephone & Telegraph Company (“AT&T”) largely grew out of the invention of the telephone. Alexander Graham Bell filed his first telephone patent application on Valentine’s Day in 1876. AT&T began installing telephone networks, which would eventually become interconnected, and acquiring local competitors over the ensuing decades.
It was also an early example of network effects. As it bought local competitors and refused to connect independent companies to its long distance lines, customers obtained more value by working with AT&T.
In 1913, AT&T made commitments to the government that it would divest Western Union, allow independent telephone companies to use its telephone network, and refrain from acquiring independent phone companies without the government’s approval. It maintained its monopoly for decades after that.
Interestingly, independent companies complained that the commitment prevented them from selling out on advantageous terms with AT&T. Indeed, this complaint is evocative of start-ups for whom a popular exit strategy is acquisition by a large firm in the same or an adjacent market.
AT&T held near-monopoly positions in its telephone equipment and its telecommunications service businesses. Its maintenance of those monopolies triggered a series of antitrust complaints. In 1974, the United States sued AT&T for monopolization and alleged a long list of restrictive practices. The company defended its practices and its “integrated” structure by arguing that it offered the public superior price, performance, and innovation. This argument was not successful. After years of litigation, the company agreed to be broken up into separate local and long-distance companies – the “baby Bells” – in 1982 by the Reagan Administration.
Lastly, I’d like to discuss United States v. Microsoft. In 1998, the United States filed a lawsuit alleging Microsoft of illegally maintaining its monopoly position in the Intel-based personal computing operating systems market by, among other things, imposing restrictions on the ability of original equipment manufacturers (or OEMs) and consumers to uninstall Internet Explorer and use alternative programs such as Netscape.
Internet Explorer and the competing browsers were free to consumers. Microsoft argued that combining Windows and Internet Explorer was the result of innovation and competition – that the products were inextricably linked and consumers benefited from getting Internet Explorer free.
The court held that Microsoft had a monopoly in the market for certain personal computer operating systems and that it had taken actions to maintain that monopoly from middleware competitors like Netscape that threatened that market power, in violation of Section 2 of the Sherman Act.
Although Microsoft was not broken up into smaller companies, the government’s successful monopolization case against Microsoft may very well have paved the way for companies like Google, Yahoo, and Apple to enter with their own desktop and mobile products.
The United States has a long history of trust-busting in emerging and technologically-advanced markets. The cases I just described offer a handful of important lessons for antitrust enforcers and practitioners alike.
First, as the Microsoft case and other enforcement actions involving digital technologies show, we already have in our possession the tools we need to enforce the antitrust laws in cases involving digital technologies. U.S. antitrust law is flexible enough to be applied to markets old and new.
Those who say we need new or amended antitrust laws to address monopoly concerns should look to history and take heart. It turns out American concerns about monopoly are older than the Constitution itself.
In the spring of 1787, a quorum of U.S. state delegates met in Philadelphia to revise the Articles of Confederation. By the fall, the delegates had voted to replace the Articles with a Constitution, although it wouldn’t be ratified until 1789.
Trump-era Ast A.G. of DOJ Antitrust Division, Makan Delrahim, official photo.
Good students of history – and devoted fans of the Broadway hit musical Hamilton – will remember that Thomas Jefferson was serving as U.S. Ambassador to France at this time. On December 20, 1787, Jefferson wrote to his friend James Madison with his views about the draft Constitution. He complimented a number of aspects of the Constitution, including “the organization of government into Legislative, Judiciary and Executive.” He was not pleased with the entire document, however. He wrote: “I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal & unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land & not by the law of Nations.”
We never got our constitutional amendment against monopoly. Although agreements in restraint of trade and monopolies were prohibited at common law, Congress nevertheless passed our first antitrust statute, the Sherman Act, in 1890.
Through their general wording, and their focus on competitive process and consumer welfare, the antitrust laws allow U.S. courts to continue to apply legal principles and sound economic reasoning to identify harmful practices that the antitrust laws should prevent.
Second, in order to understand what conduct is anticompetitive and thus unlawful, the Antitrust Division works hard to become expert on the commercial realities of the digital economy.
Broadly speaking, in some digital markets, the competition is for user attention or clicks. If we see the commercial dynamics of internet search, for example, in terms of the Yellow Pages that were delivered to our doors a generation ago, we cannot properly assess practices and transactions that create, enhance, or entrench market power – and in some cases monopoly power.
Like the old monopolies, firms operating in digital markets are typically built on proprietary technology. The most successful ones seek to build and leverage networks that drive down costs while amassing a large number of customers. Eventually, the more customers a platform has, the more valuable it may be for each individual user. Economists would refer to this phenomenon as an example of network effects. In many ways, AT&T and Microsoft leveraged network effects to create or heighten barriers to entry.
Third, clever positioning should not obscure what is otherwise ordinary evidence of an antitrust violation. Where a company has market power, enforcers should be circumspect about conduct that does not plausibly advance a legitimate business objective and transactions that eliminate competition. Depending on the commercial realities of a given market, enforcers may uncover facts that support taking a longer-than-usual view of entry.
Finally, the Antitrust Division does not take a myopic view of competition. Many recent calls for antitrust reform, or more radical change, are premised on the incorrect notion that antitrust policy is only concerned with keeping prices low. It is well-settled, however, that competition has price and non-price dimensions.
Price effects alone do not provide a complete picture of market dynamics, especially in digital markets in which the profit-maximizing price is zero. As the journalist Franklin Foer recently said, “Who can complain about the price that Google is charging you? Or who can complain about Amazon’s prices; they are simply lower than the competition’s.” Harm to innovation is also an important dimension of competition that can have far-reaching effects. Consider, for example, a product that never reaches the market or is withdrawn from the market due to an unlawful acquisition. The antitrust laws should protect the competition that would be lost in that scenario as well.
In addition, diminished quality is also a type of harm to competition. As an example, privacy can be an important dimension of quality. By protecting competition, we can have an impact on privacy and data protection. Moreover, two companies can compete to expand privacy protections for products or services, or for greater openness and free speech on platforms. Where competition pushes companies to develop quality elements that better satisfy consumer preferences, our enforcement can protect that sort of competition too.
Let me now offer some generalized and non-exhaustive observations about anticompetitive conduct and types of transactions in digital markets that could trigger closer scrutiny by the Antitrust Division in some circumstances.
As in any industry, broad categories of potential anticompetitive conduct might include monopolization, as well as coordinated, predatory, and exclusionary conduct that harms competition.
The Antitrust Division may look askance at coordinated conduct that creates or enhances market power. Consider, for example, the Antitrust Division’s investigation of Yahoo! and Google’s advertising agreement in 2008. The companies entered into an agreement that would have enabled Yahoo! to replace a significant portion of its own internet search advertisements with advertisements sold by Google. The Antitrust Division’s investigation determined that the agreement, if implemented, would have harmed the markets for internet search advertising and internet search syndication where the companies accounted for over 90 percent of each market, respectively. The agreement was abandoned after the Antitrust Division informed the companies that it intended to file a lawsuit to block the implementation of the agreement.
Collusion is sometimes the easiest type of anticompetitive conduct to identify, especially per se offenses like price-fixing, bid-rigging, and market allocations. Notably, these categories of conduct are criminal violations of the Sherman Act. Between 2010 and 2012, the United States filed complaints against Adobe, Apple, eBay, Google, Lucasfilm, Intel, Intuit, and Pixar alleging that the companies had entered into unlawful agreements not to poach each other’s employees, which constituted per se violations of Section 1 of the Sherman Act.
Exclusivity is another important category of potentially anticompetitive conduct. The Antitrust Division has had a long history of analyzing exclusive conduct in traditional industries under both Sections 1 and 2 of the Sherman Act. Generally speaking, an exclusivity agreement is an agreement in which a firm requires its customers to buy exclusively from it, or its suppliers to sell exclusively to it. There are variations of this restraint, such as requirements contracts or volume discounts.
To be sure, in some circumstances, these can be procompetitive, especially where they enable OEMs and retailers to maximize output and overcome free-riding by contractual partners. In digital markets, they can be beneficial to new entrants, particularly in markets characterized by network effects and a dominant incumbent.
They also can be anticompetitive, however, where a dominant firm uses exclusive dealing to prevent entry or diminish the ability of rivals to achieve necessary scale, thereby substantially foreclosing competition. This is true in digital markets as well.
The line between when exclusivity agreements are procompetitive and when they substantially foreclose competition may not always be easy to determine, but cases like United States v. Dentsply give us a framework to analyze them. In that case, the Antitrust Division alleged that Dentsply, which held approximately 70 to 80 percent of the market for the manufacture of artificial teeth, entered into exclusive dealing arrangements with 30 independent dealers. The U.S. Court of Appeals for the Third Circuit held that the contracts violate Section 2 of the Sherman Act because Dentsply was the dominant or exclusive choice of key distributors. Thus, the contracts helped Dentsply preserve its monopoly and harmed competition by keeping sales of competing teeth manufacturers below the critical level necessary to pose a real threat to Dentsply’s market share.
The Microsoft case, which I described earlier, is a useful illustration of how problematic exclusive tying arrangements may occur in technology markets. Microsoft tied its Windows operating system to internet explorer by taking action to discourage OEMS and users from uninstalling to the detriment of competition. This theory is broadly applicable to other technology markets.
The last topic I will discuss today is anticompetitive transactions in the digital economy, particularly acquisitions of early stage companies. Section 7 of the Clayton Act prohibits mergers and acquisitions “where the effect may be substantially to lessen competition, or to tend to create a monopoly.”
Acquisitions of nascent competitors can be procompetitive in certain instances and anticompetitive in others. They can be beneficial to the extent they combine complementary technologies or bring products and services to market that would not have been made available to consumers otherwise. It is not possible to describe here each way that a transaction may harm competition in a digital market, but I will note the potential for mischief if the purpose and effect of an acquisition is to block potential competitors, protect a monopoly, or otherwise harm competition by reducing consumer choice, increasing prices, diminishing or slowing innovation, or reducing quality. Such circumstances may raise the Antitrust Division’s suspicions.
While antitrust is not a panacea for every policy challenge presented by the digital market, the Antitrust Division will not shrink from the critical work of investigating and challenging anticompetitive conduct and transactions where justified.
That is because where competition is harmed, consumers and markets lose with higher prices, lower quality, lower rate of innovation, less free speech, and even lower privacy protections. Protecting competition means protecting all of those dimensions of competition.
In supporting the passage of the law that came to bear his name, Senator Sherman said: “If we will not endure a king as a political power, we should not endure a king over the production, transportation, and sale of any of the necessaries of life. If we would not submit to an emperor, we should not submit to an autocrat of trade . . . .”
The Antitrust Division is working hard to stay true to this vision today.
Thank you.”
14). MHProNews has cited that same quotation by Senator John Sherman (OH-R), which aptly points back to the feudalistic-style power of kings, emperors, and other feudal lords.
15). MHProNews more recently reported on the growing bipartisan opposition to monopoly power. One reason that employees should be keen to see antitrust and pro-competition laws enforced is because research indicates that greater competition commonly results in higher pay.
16). MHProNewsand/or MHLivingNews is planning a more comprehensive look at apparent antitrust violations in manufactured housing which can be used by industry pros, consumers, researchers, public officials, attorneys and others as a reference to launch more antitrust litigation. Until then, this report and the linked reports herein offer the best-known group of articles in all of manufactured housing on the subject and its importance.
Part II – Jury Rights, Jury Nullification and the Fully Informed Jury Association (FIJA) Insights
Note that in the preface and Part I, several mentions of the jury system occurred. Apparently, all too many civics, human geography, and U.S. history classes in junior high schools, middle schools, or high schools have failed to convey to their students the significant – some might say enormous – power that even a single juror can wield in our system of justice. So before going into thoughts from the FIJA, this Q&A with Copilot tees up some quotes from founding father Thomas Jefferson. The blue or balanced setting for Copilot’s responses are used herein, as is common in most of our references to that AI tool.
> “Provide some quotes from Thomas Jefferson on jury rights, authority and power including the importance of the jury system as a safeguard against governmental abuses of power.”
Certainly! Here are some insightful quotes from Thomas Jefferson regarding jury rights, authority, and the crucial role of the jury system in safeguarding against governmental abuses of power:
Thomas Jefferson’s emphasis on the role of juries as guardians of liberty underscores their significance in upholding justice and preventing governmental overreach. 🗳️🏛️
Notice that Jefferson said: “The juries are our judges of all fact, and of law when they choose it.” 1 That means that in a specific case, one or more juror(s) can reject the government’s view as presented by a prosecutor. In civil trials in volving juries, there too a juror’s power can be significant.
That noted, per the FIJA website are the following.
Mission
FIJA empowers jurors to uphold individual rights and liberty by instilling in them a rich understanding of their protective role, including jurors’ right to refuse to enforce unjust law.
…
What is jury nullification?
In its strictest sense, jury nullification occurs when a jury returns a Not Guilty verdict even though jurors believe beyond reasonable doubt that the defendant has broken the law. Because the Not Guilty verdict cannot be overturned, and because the jurors cannot be punished for their verdict, the law is said to be nullified in that particular case.
In what can be said to be a milder form of jury nullification, some of the jurors, or even just one in most cases, can hang the jury by maintaining a Not Guilty verdict even though they believe the defendant broke the law. There is no requirement that jurors must come to a unanimous verdict. If the jury cannot unanimously agree on a verdict of either Guilty or Not Guilty, this is known as a hung jury. When further deliberation clearly will be unproductive, the judge will declare a mistrial. The prosecution may or may not retry the case in the future, but the law has at least been nullified in the trial at hand.
…
1. Be Fully Informed
As a juror, you have the right to vote your conscience, even if it means setting aside the law to conscientiously acquit someone who has technically broken the law.
You cannot legally be punished for or required to change your verdict. In fact, there is no requirement for jurors to deliver a verdict. If jurors cannot agree on a verdict, judges may issue additional instructions known as “Allen” or “dynamite” charges. These additional instructions may strongly imply to jurors that they are somehow remiss in their duty if they do not reach a verdict. This is simply not true.
Jurors should not give up their conscientiously held beliefs under such pressure just for the sake of consensus. If they cannot reach a verdict, the judge will at some point declare a mistrial.
Judges and prosecutors may try to conceal this right from you. They may even openly deny that jurors have the ability to do this or falsely suggest that they may be punished for conscientiously acquitting a defendant who has technically broken a law. …”
2. Get on the Jury
Answer Your Summons
You cannot save someone’s life through jury nullification unless you get on a jury. The first step in getting on a jury is to answer your summons.
You may be asked to fill out and return paperwork, call a number, or simply report to a courthouse on a certain date. Follow the instructions on your jury summons to the best of your ability. Appear when and where you are scheduled to do so.
Especially in high profile cases, you may be asked to fill out a prospective juror questionnaire and return it before you are scheduled to report for jury duty. You may find the information you are asked to provide to be surprisingly or objectionably intrusive. This in-depth pre-screening was not part of the originally intended jury selection process, but the system has evolved over the years far from its origins.
If you object to providing the information requested, you may contact your own attorney or the court for information on whether or not you are legally required to answer. However, keep in mind that if you stand out in any way during jury selection, such as by objecting to the questionnaire, you will most likely be removing yourself from the possibility of serving on that jury. This may leave the defendant with no fully informed jurors.
Consider how you can answer the questions without unnecessarily providing too much detail. You may find the two resources listed below helpful to review before you start the questionnaire. FIJA has developed these through extensive research of actual cases so we can provide you with current examples of what is going on in the courts today and how you can respond truthfully but neutrally so that you are less likely to be deselected from a jury. …”
Wear an outfit that is clean and neat, but not overly formal. Aim for a business casual look. Avoid camo, message t-shirts, revealing clothes, etc. Be sure your attire conforms to the court’s dress code as well. Many courts do not allow t-shirts, sleeveless shirts, torn clothing, etc., so check your summons for details.
Body art or unusual jewelry should be concealed or removed if possible. Other accessories should be also neutral and non-offensive.
Hair (including facial hair) should be neatly groomed and look typical for the community. Avoid flamboyant colors and styles if you can.
Reading material and other things you bring to stay occupied while you wait to be called should be non-political, not overly intellectual, and neutral. No High Times, Guns & Ammo, The Economist, Utne Reader, etc. Try the local daily paper, a novel, your electronic reader, or People magazine instead.
Do not appear happy, eager, or excited to serve. Go for an attitude of boredom.
If you decide to chat, stick to neutral topics. Sports, television, children and grandchildren, pets, etc. are good choices. Avoid chatting about hobbies that are politically charged. …”
Regarding ‘Voir Dire’
Jury Selection
If you are called to a courtroom as a potential juror in a case, your odds of being selected as a juror have improved substantially. Here is where the verbal process of voir dire begins. In voir dire, prospective jurors are questioned either by the judge or by the attorneys in order to determine who will be selected as jurors and alternate jurors. At this stage, your best bet is to blend in with the crowd and disclose as little information as possible.
You cannot legally lie when answering questions. With a little advance preparation, though, you can craft some ways to truthfully answer questions you may be asked without unnecessarily disclosing information that will result in you being eliminated from the jury. Questions you may be asked during jury selection and how to answer them truthfully but neutrally are covered in more detail in the resources linked below. …”
What are three words or phrases you would use to describe yourself?
Instead of this:
“I’m independent, skeptical, and have a heart for justice.”
Could you truthfully say:
“I’m family-oriented, hard-working, and I’m a gardener.”
Questions about Jury Nullification
You understand that you are to follow the law as the judge explains it to you. Correct?
Instead of this:
“That is not true. Jurors have the right to judge the law for ourselves in addition to the facts of the case.”
Can you truthfully say:
“Yes.” (Keeping silently in mind that you are answering under the good faith assumption that the judge will explain the law accurately and completely and that your answer might change in the future if it turns out the judge is not acting in good faith or competently in this regard.)
“I think that’s what the judge told us earlier, wasn’t it?”
From https://friesian.com/jury.htm are the following quotations on the history and authority of a juror’s right to vote as a member of a jury to effectively nullify the law by voting to acquit (vote not guilty). Note that the opposite can also occur. This writer has personally sat on a jury panel where I was the only person who voted ‘guilty.’ Briefly, the case was being prosecuted by a new attorney. That attorney apparently missed a remark in which the defendant all but admitted he planned to violate the law in question, and the matter was serious. Somehow, that new prosecutor missed that, failed to hammer that statement home, and failed to use it in closing arguments. By voting guilty, and calling the prosecutor’s office the next day to explain why, they had the opportunity to use the court’s transcript of that trail and the defendant’s admission in a subsequent case. So, a juror’s ability to judge both law and fact can work for or against a prosecutor. That said, consider the following quotations about jury power from the source shown.
It is not only [the juror’s] right, but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.
– John Adams, 1771
…it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact.
– Chief Justice John Jay, Georgia v. Brailsford, 1794
Jurors should acquit, even against the judge’s instruction…if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong.
– Alexander Hamilton, 1804
Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions. The decision of a petty jury is called a verdict.
– Noah Webster, Dictionary of the English Language, 1828
In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction
– Article XXIII, Constitution of the State of Maryland
In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts.
– Article I, §19, Constitution of the State of Indiana
It is universally conceded that a verdict of acquittal, although rendered against the instructions of the judge, is final, and cannot be set aside; and consequently that the jury have the legal power to decide for themselves the law involved in the general issues of guilty or not guilty.
– Justices Gray and Shiras, Sparf and Hansen v. United States, 1894, dissent
The jury has the power to bring a verdict in the teeth of both the law and the facts.
– Justice Oliver Wendell Holmes, Horning v. District of Columbia, 1920
If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence…If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.
– 4th Circuit Court of Appeals, United States v. Moylan, 1969
[The jury has an] unreviewable and irreversible power…to acquit in disregard of the instructions on the law given by the trial judge…The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.
– D.C. Circuit Court of Appeals, Unites States v. Dougherty, 1972
To sum up, in the U.S., the jury has the right and the power to examine both the law and the facts in a case before it. This is true regardless of what the trial judge or the prosecutor may say, per the sources cited above. That was the intention of the founders of the American Republic.
So, why is it that today knowledge of jury rights and jury power are often sidelined, suppressed, shadow banned, or are otherwise limited? An ironic example of that occurred in the preparing this article.
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MHProNews and MHLivingNews have provided previous reports on this topic. See the linked and related reports that follow to learn more.
The combination of censorship by private corporations, working at times in conjunction with taxpayer funded entities, means that independent alternative media platforms like this one become all the more important. To learn more about the topics explored in this report with fact checks and analysis, see the related articles. Happy Presidents Day, or whatever day you happen to read this. ###
PS: the effects of information dominance, manipulation of capital access, and failure to properly implement good existing laws is starkly illustrated in this reply from Copilot.
“the U.S. population has grown by approximately 23.92% from 1998 to 2024.”
HUD Code manufactured home production in 1998 was 373,143 dwellings.
HUD Code manufactured home production in 2023 was 89,169 dwellings.
Doing the math (see the report for details) “if manufactured housing production had grown at the same rate as the population, it would be approximately 446,117 dwellings today.
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Our son has grown quite a bit since this 12.2019 photo. All on Capitol Hill were welcoming and interested in our manufactured housing industry related concerns. But Congressman Al Green’s office was tremendous in their hospitality. Our son’s hand is on a package that included the Constitution of the United States, bottled water, and other goodies.
Tony earned a journalism scholarship and earned numerous awards in history and in manufactured housing.
For example, he earned the prestigious Lottinville Award in history from the University of Oklahoma, where he studied history and business management. He’s a managing member and co-founder of LifeStyle Factory Homes, LLC, the parent company to MHProNews, and MHLivingNews.com.
This article reflects the LLC’s and/or the writer’s position and may or may not reflect the views of sponsors or supporters.
