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Fall 2023 Course

Trial by Jury

Prerequisites: None

Exam Type: No Exam

Our class will begin by articulating the original role of the American jury in our system of criminal adjudication: a sovereign body which stands between the government and a defendant whose life or liberty the government seeks to take by force. At the Founding, the protection of, and participation on, this revolutionary political body was afforded to all members of We the People – an invidiously exclusionary conception of who was afforded the full privileges and protections of American law.

As time has marched on, the American conception of who is afforded which legal protections slowly expanded. Commensurate with this expansion of who is afforded full protections was the countervailing constriction of what it means to have the protection of trial by a jury of one’s peers whenever one is accused by the government of a criminal offense. Today, juries are disempowered to the role of mere factfinders – a far fall from their sovereign embodiment as the conscience of the community.

This class traces the history of jury power constriction as a complicit response to the enlargement of legal rights for marginalized peoples – African Americans in particular. The history begins with doctrinal reactions by the judiciary to juries in the antebellum North refusing to enforce fugitive slave laws, through Reconstruction-era compromise, on to the systemic exclusion of African Americans from juries through peremptory challenge, and then reaching discussion of mass incarceration & plea bargaining.

We will conclude with a discussion of the ways in which the ideal of American jury might be reimagined and rejuvenated with a justly inclusive conception of who it protects – We the People, properly construed.

By the end of the course, students will have a thorough understanding of the evolution of the American jury system and a basis for thinking about its future.

There will be no final exam. Assessment for the course will be based on two papers