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Today we take for granted the division of labor in the courtroom whereby judges have the exclusive authority to determine the law applicable to a given case, while juries decide questions of fact. Yet this strict separation of powers did not become a fact of American legal life until the mid-19th Century, and was not recognized by the United States Supreme Court as a constitutional principle until the 1890s. Legal historians, while certainly aware of the tradition of the law-finding jury in early American legal practice, have thus far failed to fully explore its significance as a reflection of early American legal thought or the changes in American legal thought that brought about its end. This paper explores the demise of the law-finding jury and the historiography surrounding it in order to make two arguments. First, looking to history, it argues that the establishment of a strict separation of powers in the courtroom was not merely a product of political conflicts or increasing complexity in American society, but was in fact a reflection of a fundamental shift in the mainstream American ideology of the law, away from the colonial ideal of law as organic and innate to the citizen and towards an ideology of law as science. Next, looking to the present, this paper argues that, since a century of legal scholarship has obliterated the law-as-science ideology that justified relegating the jury the role of fact finder in the first place, we must reconsider our commitment to the current division of labor in the courtroom if it is to have any justification other than adherence to tradition.

The Demise of the Law-Finding Jury in America and the Birth of American Legal Science: History and its Challenge for Contemporary Society