Suja A. Thomas (University of Illinois College of Law) has posted The Missing Branch of the Jury (Ohio State Law Journal, Forthcoming) on SSRN. Here is the 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.