Despite an intractable judiciary, there is widespread consensus within the legal academy that jury nullification is compatible with the Rule of Law. This proposition is most strongly tested by “substantive nullifications,” where a jury nullifies simply because it disagrees with the law itself. While some substantive nullifications can comport with the Rule of Law, most commentators’ wholesale acceptance of the practice is not justified. They have erred by ignoring the non-substantive, procedural nature of the Rule of Law in favor of one determined by substantive “justice,” and also by taking a naively undifferentiated view of a “community’s” morality (even though jurisdictional and vicinage morality can diverge). In doing so, a healthy vision of anti-tyrannical nullifications emerges, but this leaves out many problematic cases. Once these errors are rectified a more nuanced picture emerges, and it becomes apparent that localism will often disrupt the congruence feature of the Rule of Law.
Brenner M. Fissell,
Jury Nullification and the Rule of Law, 19 217
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