Upside-Down Juries

22 Pages Posted: 12 Apr 2017 Last revised: 3 Aug 2021

See all articles by Josh Bowers

Josh Bowers

University of Virginia School of Law

Date Written: April 12, 2017


The practical disappearance of the jury trial ranks among the most widely examined topics in American criminal justice. But, by focusing on trial scarcity, scholars have managed to tell only part of the story. The unexplored first-order question is whether juries even do their work well. And the answer to that question turns on the kinds of work jury members are typically required to do. Once upon a time, trials turned upon practical reasoning and general moral blameworthiness. Modern trials have come to focus upon legal reasoning and technical guilt accuracy. In turn, the jury has evolved from a flexible body to a rule-bound institution. But, of course, even as trials have changed, laypeople’s capacities have stayed largely the same. Laypeople remain more skilled at the art of equitable evaluation than the science of legal analysis.

It does not follow, however, that the criminal justice system should revert to equitable trial practices. The modern trial is professional and legalistic for good reason. The rule of law commands that criminal convictions be products of precisely drawn criminal codes and formal processes. Nevertheless, there are other procedural stages - arrest, charge, bail, bargain, and sentence - where equitable discretion is more appropriate. These are the stages at which criminal justice should concentrate lay efforts.

In this conference essay, I describe the historical and constitutional trends that have entrenched popular participation in all the wrong places. And I propose redirecting jury practice from criminal trials to other adjudicatory sites. Finally, I make the case that my reforms are consistent with (and perhaps even integral to) the legality principle, properly considered.

Keywords: Juries, Sixth Amendment, Democratic Experimentalism, Popular Participation, Particularism

Suggested Citation

Bowers, Josh, Upside-Down Juries (April 12, 2017). Northwestern University Law Review, Forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2017-17, Available at SSRN:

Josh Bowers (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics