Hastings Law Journal


Darryl K. Brown


Historically, the American legal system has accorded juries wide discretion to impose sentences in the criminal context and to award damages in civil litigation. These jury decisions were all but unreviewable at the appellate level as juries were regarded as representing the citizens' determination of a just and proper resolution of a case, and the courts were reluctant to disturb its conclusions. Recent years, however, have seen a systematic erosion of jury authority as the courts now review many jury decisions under the Due Process Clauses of the Constitution. The Supreme Court first imposed constraints on the jury in the criminal context, particularly in death penalty cases. Then in 1996, in BMW v. Gore, the Court for the first time struck down a jury's civil damages award as a violation of due process rights. This new oversight of jury authority represents a major shift in the balance of powers among the institutions responsible for making, enforcing, and interpreting the law.

Professor Brown begins by exploring the history of the structural role of the jury as it relates to other institutions such as the legislature and the judiciary. The author then describes and analyzes the changing role of the jury, observing that this change reflects modem ideas of deliberative decision-making among the various governmental institutions as explained by legal process theory. The author illustrates this evolving role of the jury by exploring the Court's jurisprudence first in the capital sentencing context and then in the area of punitive damages. He describes a jury being transformed from a nearly autonomous body with great authority to determine facts and law to an institution currently operating at least formally under constraints from judges and legislatures. Finally, the author analyzes this changed role and concludes that the new procedural regime into which the jury has been integrated may actually improve the jury's competency.

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