This paper proceeds in two parts. The first part is devoted to an historical argument that juries in early American legal systems possessed a broad power to decide questions of law, which corresponded to a conception of the law as emerging from, and intimately bound up with, the experiences and beliefs of the members of a given community--a power that was taken from them in a relatively short period of time due to a variety of social pressures, none of which would have been sufficient to cause the change absent the emergence of a new ideology of law as an apolitical science. The second part moves to the present day and argues that, given the untenability of the view of law as science upon which the now-conventional division of powers between judge and jury depends, the current system must find new justification or be abandoned.
The Demise of the Law-Finding Jury in America and the Birth of American Legal Science: History and Its Challenge for Contemporary Society,
57 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol57/iss3/6