47 Pages Posted: 5 Sep 2005
The judiciary sometimes competes for power with another constitutional actor, including the legislature, the executive, the states and the jury. This article addresses the issue of how the judiciary should interpret its own power in relationship to the competing power of other constitutional actors. The article describes how the judiciary has sometimes limited its own power in relationship to the competing power of the legislature, the executive and the states under the doctrines of separation of powers and federalism. A similar doctrine has not been developed, however, under which the judiciary has limited its own power in relationship to the competing power of another constitutional actor - the jury. Upon an examination of the special characteristics of the relationship between the judiciary and the jury under the Sixth and Seventh Amendments and a comparison of these characteristics to principles underlying the separation of powers and federalism, it is argued that the judiciary should act "modestly" in the interpretation of the jury's power as its relates to the judiciary's own power. Under this proposed new model of judicial behavior - that of judicial modesty - the judiciary should narrowly construe its own power in the review of its power versus that of the jury's power. Upon an examination of the jurisprudence of the Supreme Court under the Sixth Amendment, it is found that the judiciary has acted somewhat modestly in the interpretation of its own power versus that of the criminal jury. On the other hand, an examination of the Court's Seventh Amendment jurisprudence shows that the Court has not been sufficiently deferential in the examination of its power versus the jury's power. The article argues that the exercise of modesty in the interpretation of the power of the civil jury may require a re-examination of the constitutionality of certain procedural devices employed by judges that affect the jury trial right. Finally, the article states that in the future this model for judicial behavior - that of judicial modesty - may be found to apply to the judiciary's interpretation of its own power versus the competing power of other constitutional actors.
Keywords: Judiciary, Jury, Sixth Amendment, Seventh Amendment
JEL Classification: K10, K41
Suggested Citation: Suggested Citation
Thomas, Suja A., Judicial Modesty and the Jury. University of Colorado Law Review, Vol. 76, p. 767, 2005; U of Cincinnati Public Law Research Paper No. 05-17. Available at SSRN: https://ssrn.com/abstract=796774