Jury Nullification and the Rule of Law

25 Pages Posted: 14 Jul 2013 Last revised: 9 Aug 2016

See all articles by Brenner Fissell

Brenner Fissell

Villanova University; Villanova University, Law School

Date Written: July 13, 2013

Abstract

Despite an intractable judiciary, there is widespread consensus within the legal academy that jury nullification is compatible with the Rule of Law. This proposition is most strongly tested by “substantive nullifications,” where a jury nullifies simply because it disagrees with the law itself. While some substantive nullifications can comport with the Rule of Law, most commentators’ wholesale acceptance of the practice is not justified. They have erred by ignoring the non-substantive, procedural nature of the Rule of Law in favor of one determined by substantive “justice,” and also by taking a naively undifferentiated view of a “community’s” morality (even though jurisdictional and vicinage morality can diverge). In doing so, a healthy vision of anti-tyrannical nullifications emerges, but this leaves out many problematic cases. Once these errors are rectified a more nuanced picture emerges, and it becomes apparent that localism will often disrupt the congruence feature of the Rule of Law.

Note: Copyright Notice: Copyright held by Cambridge University Press.

Keywords: jury nullification, rule of law, jurisprudence, criminal law

Suggested Citation

Fissell, Brenner, Jury Nullification and the Rule of Law (July 13, 2013). 19 Legal Theory 217 (2013) , Available at SSRN: https://ssrn.com/abstract=2293387

Brenner Fissell (Contact Author)

Villanova University ( email )

Villanova, PA 19085
United States

HOME PAGE: http://www.brennerfissell.com

Villanova University, Law School ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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