Jason Mazzone (Brooklyn Law School) has posted The Justice and the Jury (Brooklyn Law Review, Vol. 72, No. 35, 2006) on SSRN. Here is the abstract:
This essay was prepared for a symposium to celebrate the publication of Linda Greenhouse’s book, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (2005).
The essay examines Justice Blackmun’s view of juries. Conventional accounts of juries emphasize their value as fact-finders, guardians of liberty, and a source of legitimacy. By contrast, Blackmun thought juries were important principally as a component of democracy – juries represent an opportunity for citizens to participate in the workings of government. On this account, the task of the Supreme Court is to ensure juries are open for and conducive to participation, just as the Court safeguards the ability of citizens to vote.
Blackmun’s perspective has important implications for the recent phenomenon of the vanishing jury and helps identify how the democratic benefits of juries might be recaptured today.