Sunday, December 30, 2012
Jenny Carroll (Seton Hall University - School of Law) has posted Nullification as Law on SSRN. Here is the abstract:
The Rule of Law is central to our notion of governance and our legal system. The ideal of a knowable, settled, public law shimmers in the discourse of our democracy. It stands in sharp contrast to the arbitrary and often anarchic law of men, in which those with absolute power rule absolutely. But the devil is always in the details. To move past the idealism is to enter a contested realm in which competing theories seek to claim the mantle of the Rule of Law. While this article cannot claim to resolve the dispute over the precise meaning or construct of the Rule of Law, it does seek to consider the questions that jury nullification raises in the context of our republican democracy. In so doing a more nuanced conception of the Rule of Law emerges – one grounded in the daily realities of the lives the law would govern.
On some most basic level, nullification would seem to raise the question of what role can a citizen play in directly making law? The audacity of a juror defining law speaks of some small space in which law is constructed and later given meaning outside the halls of formal government. It suggests a law that is broader, dependent on citizen interpretation and/or construction. In its very nature, nullification points to a juror as a source of the law itself. But to what end? Will the law carry any meaning beyond the verdict it creates? Does such direct citizen action have a place in the democracy so dependent on process and representation for law making? Will a juror’s act of nullification tear the Rule of Law asunder? Or is the concept more enduring, with the nullifying juror a part of its constant development of recognition and acceptance?
In trying to answer these questions, I consider the development of the citizen’s relationship with the government reflected in changing notions about the criminal jury’s role in the construction and interpretation of the law. In the end, it seems that any meaningful discussion of the Rule of Law should include an acknowledgement of the role the citizen plays in the construction and deconstruction of the law itself.