SPECIAL ISSUE THE AMERICAN JURY   ARTICLE: THE LAW-FINDING FUNCTION OF THE AMERICAN JURY Skip over navigation
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Copyright (c) 1999 University of Wisconsin Law School
Wisconsin Law Review

SPECIAL ISSUE
THE AMERICAN JURY
 
ARTICLE: THE LAW-FINDING FUNCTION OF THE AMERICAN JURY

1999

1999 Wis. L. Rev. 377

Author

Matthew P. Harrington *

Excerpt



It has become something of an article of faith in the legal community that it is "the duty of the court to expound the law and that of the jury to apply the law as thus declared." 1 In practice, this is often interpreted to mean that the judge alone has the power to determine the law and the jury is limited to applying the law to the facts. The standard allocation of power between judge and jury is thought to be as old as the common law itself. 2

In truth, however, this division of labor is of relatively recent origin. Until the early years of this century, many American lawyers and judges believed that juries had the power to declare both the law and the fact. The jury thus had the ability to take upon itself the right to determine the entire controversy. As late as 1895, Supreme Court Justice Shiras asserted:


 
The jury ... are intrusted with the decision of both the law and the facts involved in [the] issue. To assist them in the decision of the facts, they hear the testimony of witnesses; but they are not bound to believe the testimony. To assist them in the decision of the law, they receive the instructions of the judge; but they are not obliged to follow his instructions. 3


 
This ability to determine the law was something more than the power to bring in a general verdict, however. American judges actually asserted an almost plenary ...
 
 
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