Suja A. Thomas (University of Illinois College of Law) has posted Blackstone's Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States (William & Mary Law Review, Vol. 55, No. 3, 2014) on SSRN. Here is the abstract:
When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government. It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today. When America was founded, juries functioned differently — as an integral part of government in both England and the colonies. This Symposium Article, a chapter in my forthcoming book, tells a story about this change in the power of the jury. Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government — to institutions that juries were to check. So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority. Of course, the jury has arguably not fallen or has risen through other changes. This topic will be introduced later in this chapter and developed in a future chapter. As will be argued subsequently, however, the substance of the jury's power under the Constitution has fallen.