Stacey P. Eilbaum, The Dual Face of the American Jury: The Antiauthoritarian and Antimajoritarian Hero and Villain in American Law and Legal Scholarship, 98 Cornell L. Rev. 711 (2013).
Introduction: Over the past fifty years, the Supreme Court has extended and elucidated the right to trial by jury. A handful of commentators have argued that modern Supreme Court decisions signal a shift in the Court’s jurisprudence on the jury toward a more functionalist approach that is sensitive to the competencies of juries and their historic role as protectors of liberty in American democracy. Consequently, some commentators have argued that circuit courts should follow the Supreme Court’s lead by leaving behind the formalist distinction between the judge’s law-finding and jury’s fact-finding authority that courts have made since the late nineteenth century. This shift, some commentators argue, would give the jury more authority to decide questions of law and may even pave the way for the jury’s right to nullify the law as instructed by the judge.