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The Missing Branch of the Jury

62 Pages Posted: 2 Jun 2016 Last revised: 5 Apr 2017

Suja A. Thomas

University of Illinois College of Law

Date Written: May 31, 2016

Abstract

Over time, the criminal, civil, and grand juries have declined in power. Cost, incompetence, inaccuracy, and inefficiency are often cited as the reasons for this fall. Recognizing that authority that formerly resided in the jury has shifted to the traditional constitutional actors of the executive, the legislature, the judiciary, and the states, this article explores a new theory for the decline of the jury. In the past, the Supreme Court has used the doctrines of the separation of powers and federalism to protect the power of the traditional actors including the branches, while it has not used any similar doctrine to preserve jury authority. At the same time, the power of the jury has eroded. This article argues that the jury is effectively a “branch” of government — similar to the executive, the legislature, and the judiciary — that has not been recognized and protected. In many instances the Court originally found authority in the jury to later take the same authority and give it to a traditional actor. A novel study helps explain why the status of the jury has changed. It shows that legal elites and corporations appear to have influenced this shift against jury authority.

Keywords: seventh amendment, article III, fifth amendment, tenth amendment, executive, legislature, judiciary, civil jury, grand jury, criminal jury, branch, separation of powers, federalism

Suggested Citation

Thomas, Suja A., The Missing Branch of the Jury (May 31, 2016). Ohio State Law Journal, Forthcoming; University of Illinois College of Law Legal Studies Research Paper No. 16-24. Available at SSRN: https://ssrn.com/abstract=2787426

Suja A. Thomas (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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