William & Mary Law Review


Robert P. Burns


In this Essay, I will briefly describe some of the more obvious ways in which the jury has been considered a political institution. I will then discuss the senses in which we can understand the term “political” in the context of the American jury trial. I will describe the senses in which Hannah Arendt, perhaps the most important political philosopher of the twentieth century, tried to distinguish between “the political” and the “the legal” and the limitations of any such distinction. I will then turn to the heart of this Essay, a description of the ways in which the American trial, as we actually have it, is a political institution. I argue that attention to our actual linguistic practices at trial reveals the jury trial to be a hybrid institution, with aspects of traditional legal formalism, but one in which the jury is finally asked to make what we may fairly call a political judgment about what is most important in the case. Finally, I will describe two recent important attempts to revive the political dimension of the work of the jury in the context of criminal law.