方鯤鵬博主在他的“美國陪審團審判正在消失”一文中大言道“在民事案件方面，雖然憲法修正案第七條規定，‘在引用習慣法的訴訟中，其爭執涉及的價值超過二十美元，則當事人有權要求陪審團審判’，不過最高法院對此解釋道，這條修正案涉及的陪審團審判權利只適合於1791年的習慣法（common law）。因此，民事案的當事人沒有要求陪審團審判的當然權利，但可以提出申請，而法官可以批准申請，也可以拒絕申請…… 不過美國州的司法運作模式基本上是模仿聯邦模式，所以在陪審團問題上應該也是大同小異…… 民事案申請陪審團審判，意味着不信任受理法官的公正性，但是卻要該法官的批准才能獲得陪審團審判。這是很奇怪的邏輯，很少有民事案當事人敢提出陪審團審判的要求，怕法官拒絕後還懷恨在心。”
陪審團裁決的權利取決於法官的恩准嗎？
先看看紐約州的民事訴訟法關於陪審團裁決的規定：
§ 4102. Demand and waiver of trial by jury; specification of issues.
(a) Demand. Any party may demand a trial by jury of any issue of fact
triable of right by a jury, by serving upon all other parties and filing
a note of issue containing a demand for trial by jury. Any party served
with a note of issue not containing such a demand may demand a trial by
jury by serving upon each party a demand for a trial by jury and filing
such demand in the office where the note of issue was filed within
fifteen days after service of the note of issue. A demand shall not be
accepted for filing unless a note of issue is filed in the action. If no
party shall demand a trial by jury as provided herein, the right to
trial by jury shall be deemed waived by all parties. A party may not
withdraw a demand for trial by jury without the consent of the other
parties, regardless of whether another party previously filed a note of
issue without a demand for trial by jury.
(b) Specification of issues. In his demand a party may specify the
issues which he wishes tried by jury; otherwise he shall be deemed to
have demanded trial by jury of all issues so triable. If he has demanded
trial by jury of only some of the issues, any other party within ten
days after service of the demand may serve and file a demand for trial
by jury of any other issues in the action so triable.
(c) Waiver. A party who has demanded the trial of an issue of fact by
a jury under this section waives his right by failing to appear at the
trial, by filing a written waiver with the clerk or by oral waiver in
open court. A waiver does not withdraw a demand for trial by jury
without the consent of the other parties. A party shall not be deemed to
have waived the right to trial by jury of the issues of fact arising
upon a claim, by joining it with another claim with respect to which
there is no right to trial by jury and which is based upon a separate
transaction; or of the issues of fact arising upon a counterclaim,
cross-claim or third party claim, by asserting it in an action in which
there is no right to trial by jury.
(d) Local rules. The chief administrator of the courts may by rule
provide that a party shall be deemed to have demanded trial by jury by
filing a note of issue not containing an express waiver of trial by
jury.
(e) Relief by court. The court may relieve a party from the effect of
failing to comply with this section if no undue prejudice to the rights
of another party would result.
再看看加州的民事訴訟法如何規定的？
Y592.] Section Five Hundred and Ninety-two. In actions for the
recovery of specific, real, or personal property, with or without
damages, or for money claimed as due upon contract, or as damages for
breach of contract, or for injuries, an issue of fact must be tried
by a jury, unless a jury trial is waived, or a reference is ordered,
as provided in this Code. Where in these cases there are issues both
of law and fact, the issue of law must be first disposed of. In other
cases, issues of fact must be tried by the Court, subject to its
power to order any such issue to be tried by a jury, or to be
referred to a referee, as provided in this Code.
類似的論斷在方博主在介紹美國司法體系問題的系列文章中毫不罕見。不再一一例舉。這些偏謬只要稍微做點搜查，就可以發現的。
再比如，“美國是官司泛濫的國家。如果大量民事案也經由陪審團審判，到哪去找足夠的陪審員？所以在很長時期里，當局嚴格限制民事案經由陪審團審判。” 我和我朋友的經歷根本不是這樣。我甚至懷疑該博主根本就沒有在美國擔任陪審員的經歷。我去過幾次，都是打盹。泡了兩天就回去上班了，因為無案可審。
其它紕漏就不列舉了。
莫名其妙的，行文到最後他總愛來這麼一句 ＂中國鼓吹模仿美國司法模式的人，不知是否知道，他們心目中的美國模式，已蛻變得連其本國專家學者都不認識為何物了。＂ 該博主一定是不鼓吹模範美國司法模式的，不知道自己是否真研究到位了？他一定是希望中國的司法比美國更獨立、更專業、權力更平衡、更公開、更多接受監督？
能趕上美國也不錯呀，趕上了再超越人家吧。
