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First Page

341

Last Page

412

Document Type

Article

Abstract

Jury nullification traditionally refers to the jury’s power to deliver a verdict that is deliberately contrary to the law’s clearly dictated outcome. A spirited scholarship is built around this conception, with some painting nullification as democratic and others as anarchic. But this debate is largely unmoored from experience. In practice, courts have formally eliminated the jury’s authority to review the law and have established procedures that make it easier to prevent and overturn seemingly nullificatory verdicts. Thus, outside of a jury’s verdict acquitting a criminal defendant, jury nullification as traditionally understood does not exist. In no other context is a jury’s verdict inviolate. Jury nullification, then, describes a largely antiquated institutional power; and it is a concept (over)ripe for reassessment. This Article proposes a more capacious understanding of jury nullification, conceptualizing it as the routine injection of extralegal considerations into the jury’s decision-making. It contends that all jury verdicts—criminal and civil—fall upon a nullification spectrum in which such considerations exert greater or lesser influence regardless of the jurors’ intentions or whether the verdict appears reasonable on its face. This spectrum is apparent in the rules and case law but has remained underarticulated in the literature. Making it explicit allows us to reconsider the ways juries exercise their institutional power both to under- mine—and bolster—black letter law within the confines of modern procedures. And it exposes the continued vitality of the modern jury even as an increasingly sidelined constitutional actor.

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