方鲲鹏博主在他的“美国陪审团审判正在消失”一文中大言道“在民事案件方面，虽然宪法修正案第七条规定，‘在引用习惯法的诉讼中，其争执涉及的价值超过二十美元，则当事人有权要求陪审团审判’，不过最高法院对此解释道，这条修正案涉及的陪审团审判权利只适合于1791年的习惯法（common law）。因此，民事案的当事人没有要求陪审团审判的当然权利，但可以提出申请，而法官可以批准申请，也可以拒绝申请…… 不过美国州的司法运作模式基本上是模仿联邦模式，所以在陪审团问题上应该也是大同小异…… 民事案申请陪审团审判，意味着不信任受理法官的公正性，但是却要该法官的批准才能获得陪审团审判。这是很奇怪的逻辑，很少有民事案当事人敢提出陪审团审判的要求，怕法官拒绝后还怀恨在心。”
陪审团裁决的权利取决于法官的恩准吗？
先看看纽约州的民事诉讼法关于陪审团裁决的规定：
§ 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.
再看看加州的民事诉讼法如何规定的？
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.
类似的论断在方博主在介绍美国司法体系问题的系列文章中毫不罕见。不再一一例举。这些偏谬只要稍微做点搜查，就可以发现的。
再比如，“美国是官司泛滥的国家。如果大量民事案也经由陪审团审判，到哪去找足够的陪审员？所以在很长时期里，当局严格限制民事案经由陪审团审判。” 我和我朋友的经历根本不是这样。我甚至怀疑该博主根本就没有在美国担任陪审员的经历。我去过几次，都是打盹。泡了两天就回去上班了，因为无案可审。
其它纰漏就不列举了。
莫名其妙的，行文到最后他总爱来这么一句 ＂中国鼓吹模仿美国司法模式的人，不知是否知道，他们心目中的美国模式，已蜕变得连其本国专家学者都不认识为何物了。＂ 该博主一定是不鼓吹模范美国司法模式的，不知道自己是否真研究到位了？他一定是希望中国的司法比美国更独立、更专业、权力更平衡、更公开、更多接受监督？
能赶上美国也不错呀，赶上了再超越人家吧。
