Juries, Judges, and Democracy

David Millon

doi:10.1111/j.1747-4469.1993.tb00650.x

1 Alexis de Tocqueville, 1 Democracy in America 294 (New York: Vintage Books, 1945).Google Scholar

2 One or the other seems to have occurred in the recent Rodney King case, though it is very difficult to tell which. Did the jurors really believe that King somehow asked for what he got, or were such postverdict statements excuses for a verdict based on disapproval of the law?.Google Scholar

3 As a practical matter, a jury's verdict can often be based on a belief that the conduct in question does not merit a civil or criminal sanction, even though the jury is satisfied that the plaintiff or prosecutor has proved his or her case in accordance with the law's requirements. If the verdict is general, in the form of a blank conclusion rejecting liability or guilt without a statement of reasons, it may be impossible to tell whether the verdict is based on disapproval of the law rather than on factual considerations. In civil cases, judges enjoy the authority to set aside verdicts that appear manifestly against the weight of the evidence presented in court, but even so, juries always retain a certain amount of discretion to disregard governing legal doctrine in favor of their own moral or political preferences. In this sense, the jury's inscrutability often confers the power to nullify the law. In effect, this power to choose the normative basis for its verdict amounts to the power to decide what the law will be.Google Scholar

4 In Massachusetts at least, it is not clear that judges regularly instructed juries on the law. William E. Nelson, The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 at 26 (Cambridge, Mass.: Harvard University Press, 1975) (“Nelson, Americanization of the Common Law”.).Google Scholar

5 Nelson, William E., “The Eighteenth-Century Background of John Marshall's Constitutional Jurisprudence,” 76 Mich L Rev. 893, 911–12 (1978).CrossRef Google Scholar

6 See James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger, ed. Stanley N. Katz (Cambridge, Mass.: Belknap Press, 1963).Google Scholar

7 Bruce H. Mann, Neighbors and Strangers: Law and Community in Early Connecticut 79 (Chapel Hill, N.C.: University of North Carolina Press, 1987) (“Mann, Neighbors and Strangers”.) Mann cites these and other cases as examples of cases in which juries, having been charged to resolve these legal questions, preferred instead to render special verdicts and leave the legal question to the bench. Nevertheless, these were “questions that had been submitted to juries and were within their power to decide.”Id.Google Scholar

8 The 18th-century colonial jury's broad law-deciding authority was not due to an inability to conceptualize a law/fact distinction. Sir Edward Coke's well-known Commentarie upon Littleton (1628) had already drawn the distinction clearly, stating that judges were to address questions of law and juries only questions of fact. In 18th-century Connecticut cases involving special verdicts, for example, a functional distinction between the jury's fact-finding competence and the court's law-deciding authority is apparent. See note 7 above. Elsewhere, judicial statements to the effect that jurors ought to pay heed to the court's statement of the law, even though they were not obliged to follow it, indicate a similar awareness.Google Scholar

9 For example, resort to special verdicts, according to which jurors are charged only to answer specific factual questions, would have left decision about their legal significance in the hands of the bench. So, too, would the availability of posttrial judicial review of verdicts on the ground that they were unsupported by the evidence presented in court. A requirement that defendants plead specially, traversing a specific factual allegation rather than denying generally, would have limited the scope of the evidence and narrowed considerably the jury's discretion. Although not entirely unknown during the 18th century (see note 7 above), these sorts of procedural mechanisms were developed primarily during the 19th century and as such are part of the story of the gradual diminution of jury authority.Google Scholar

10 Nelson, , Americanization of the Comma Law 28.Google Scholar

11 Nelson, 76 Mich L Rev. at 904. Bruce Mann has recently argued that, while civil juries in Connecticut enjoyed broad authority during the 17th century, their importance declined during the 18th, as more and more cases were resolved by judges on points of law, and therefore never reached a jury. See Mann, Neighbors and Strangers 69–81.Google Scholar

12 Stimson here seems to be drawing a distinction between arguments for jury power that lay claim only to a sort of interpretive authority, as opposed to those that go further and assert a right to legislative authority. See Simson, Gary J., “Jury Nullification in the American System: A Skeptical View,” 54 Tex. L Rev. 488, 506–7 (1976) (suggesting distinction between “judicial” and “legislative” jury functions). For a much richer account of Leveller arguments on behalf of jury power, which emphasizes an insistence on popular, local control over normative judgment, see Thomas A. Green, Verdict according to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 ch. 5 (Chicago: University of Chicago Press, 1985) (“Green, Verdict”).Google Scholar

13 Nevertheless, periodic critique of the common law's mandarin aspect remained an element of English political culture. Recall, for example, Bentham's blistering critique of legal fictions as rendering the law inaccessible to the lay public. See Gerald J. Postema, Bentham and the Common Law, Tradition 271–74 (Oxford: Oxford University Press, 1986).Google Scholar

14 John Locke, An Essay concerning Human Understanding, ed. P. H. Nidditch (Oxford: Oxford University Press, 1979).Google Scholar

15 See, e.g., Bernard Bailyn, The Ideological Onigins of the American Revolution (Cambridge, Mass.: Belknap Press, 1967); Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969).Google Scholar

16 The key passage is as follows: “And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.” Dr. Bonham's Case, 77 Eng. Rep. 638, 652 (C.P. 1610). In Stimson's view, “[l]egal certainty achieved through tight judicial control over interpretation of law, rather than the clear articulation of fundamental law or any particular theory of the locus of sovereignty, was Coke's paramount pre-occupation” (at 17). The idea that Coke was stating the principle behind the American doctrine of judicial review is associated especially with Edward Corwin. See Edward S. Corwin, The “High Law” Background of American Constitutional Law 43–57 (Ithaca, N.Y.: Cornell University Press, 1955) (reprinting article first published in 42 Harv. L Rev. 149, 365 (1928–29); see also T. F. T. Plucknett, “Dr. Bonham's Case and Judicial Review,” 40 Harv. L Rev. 30, 61–68 (1926). For an argument against the approach exemplified by Corwin, see Samuel E. Thorne, “Dr. Bonham's Case,” 54 L.Q. Rev. 543 (1936).Google Scholar

17 Although perhaps not as well known as Madison or Hamilton, James Wilson, of Pennsylvania, was among the most widely respected and influential delegates to the Constitutional Convention. He was later an Associate Justice of the U.S. Supreme Court and has been described as “the outstanding jurist of his age.” Richard Hofstadter, The American Political Tradition 7 (New York: Vintage Books, 1974). For Wilson's career, see generally Charles Page Smith, James Wilson: Founding Father, 1742–1798 (Chapel Hill: University of North Carolina Press, 1956).Google Scholar

18 In contrast to the colonial jury's broad law-determining authority, judicial review is, of course, limited to judgments about the conformity of statutes to constitutional principle. It may therefore be difficult to see a direct analogy between the jury's power to decide what the law should be and the federal judiciary's narrower authority merely to reject particular legislative acts. Stimson does not address this point explicitly, but implicit in her analysis seems to be a conception of the founders' constitution as embracing more than the cramped, black-letter, Borkian view. Rather, the constitution as an expression of fundamental law embraced the general, traditionally held principles of natural right and justice, irreducible to a positivistic checklist. Accordingly, judicial review involved more than simply “[laying] the article of the Constitution which is invoked beside the statute which is challenged and [deciding] whether the latter squares with the former.” United States v. Butler, 297 U.S. 1, 62 (1936). It required a deeper inquiry into the implications of natural law for the particular question presented. For procedural reasons, the issue before the reviewing court was the acceptability of a statute, rather than the jury's duty to decide a question of guilt or liability. Nevertheless, in both situations, judges or jurors were called on to give concrete meaning to abstract principles of natural justice.Google Scholar

19 Like Wilson, Hamilton was unwilling to defer fully to legislative majorities (see at 106–26). The Supreme Court ought to be able to apply disinterested reason to the political question of law. However, human fallibility rather than special judicial expertise legitimated this authority. In contrast to Hamilton and Wilson, John Adams, the champion of the law-deciding jury, was unwilling to cede that authority to the judiciary, because to do so would amount to denial to the lay public of a crucially important role in government (see ch. 4). Jefferson's opposition to judicial review rested on his commitment to legislative majoritarianism (see ch. 5). However, he conceived of the legislative process as an ongoing dialog in which the constitution itself, as well as particular statutes, would be subject to constant critique and revision by the people's elected representatives.Google Scholar

20 19 U.S. (6 Wheat.) 264 (1821).Google Scholar

21 Robert Ferguson makes a similar point: John Marshall was the perfect model and logical extension of the need to speak a contemporary language that all Americans could understand and heed. The architect of judicial review in the federal courts, Marshall was also dismissive of case law in general. In fact, his five greatest constitutional opinions as chief justice of the Supreme Court failed to cite a single previous court decision as authority. Each argument was grounded instead upon appeals to the principia of American civilization and upon the grand, inclusive style glimpsed in Adams and Blackstone. Robert Ferguson, Law and Letters in American Culture 23 (Cambridge, Mass.: Harvard University Press, 1984) (“Ferguson, Law and Letters”).Google Scholar

22 The topic receives good treatment in Note, “The Changing Role of the Jury in the Nineteenth Century,” 74 Yale LJ. 170 (1964), but this piece is limited in focus to Massachusetts. Mark DeWolfe Howe, “Juries as Judges in Criminal Law,” 52 Harv. L Rev. 582 (1939), also surveys 19th-century developments and is broader in geographical compass, but it is limited to the criminal jury.Google Scholar

23 Morton Horwitz, for example, implies that a decisive shift away from broad jury authority in civil cases occurred early in the nineteenth century. See Morton J. Horwitz, The Transformation of American Law, 1780–1860 at 141–43 (Cambridge, Mass.: Harvard University Press, 1977) (“Horwitz, Transformation 1780–1860”).Google Scholar

24 For a thorough discussion, see Wolfram, Charles W., “The Constitutional History of the Seventh Amendment,” 57 Minn. L Rev. 639 (1973).Google Scholar

25 See Herbert J. Storing, What the Anti-Federalists Were For 18–19 (Chicago: University of Chicago Press, 1981).CrossRef Google Scholar

26 Id at 64. The original draft of the constitution included an express provision guaranteeing trial by jury only in federal criminal cases. U.S. Const. art. III, § 2. The Seventh Amendment later added a guarantee for civil cases.Google Scholar

27 Hamilton endorsed the importance of the civil jury in well-known terms: supporters and critics of the constitution, “if they agree on nothing else, concur at least on the value they place upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.” Clinton Rossiter, ed., The Federalist Papers 499 (New York: New American Library, 1961).Google Scholar

28 See The Federalist Papers 469–71.Google Scholar

29 Georgia v. Brailsford, 3 US. (3 Dall.) 1 (1794).Google Scholar

30 Id at 4. For further examples of courts charging juries on their law-deciding authority, see Howe, 52 Harv. L Rev. at 583–84.Google Scholar

31 3 U.S. (3 Dall.) at 5. After beginning to deliberate but before reaching its verdict, the jury requested that the Court restate its view of the law.Google Scholar

32 United States v. Battiste, 24 F. Cas. 1042 (C.C.D. Mass. 1835) (No. 14,545).Google Scholar

33 Id at 1043.Google Scholar

34 Howe writes that this opinion “seems more effectively than any other decision to have deflected the current of American judicial opinion away from the recognition of the jury's right.” 52 Harv. L Rev. at 592 (cited in note 22).Google Scholar

35 See, e.g., United States v. Lynch, 26 F. Cas. 1033 (C.C.S.D.N.Y. 1843) (No. 15,648) (holding that “counsel for the [defendants] had a strict legal right to call upon the jury to decide the law and the facts in a criminal case, but the court in such a case would fully express their opinion to the jury what the law was”).Google Scholar

36 Sparf and Hansen v. United States, 156 US. 51 (1895).Google Scholar

37 Id at 101.Google Scholar

38 Id at 103.Google Scholar

39 Id at 101–2.Google Scholar

40 Mass. Laws 1807, ch. 139 15 (passed 12 March 1808). The statute seems to have been intended to settle actual controversy over the jury's proper function. In 1803, for example, a trial court sitting in Berkshire County had rendered a verdict contrary to the direction of the court. A critic wrote that the jury's responsibility was “to receive the law from the COUK, and to determine the mixed question of law and fact according as the law is given them by the Court. The form of the Juror's Oath obliges him to give his verdict according to law and the evidence given him; not according to his own opinion of the law but as it shall be stated to him by the Court.” Defenders of the jury responded that, though the jury ought to attend to the court's view of the law, “[t]he jury must do their duty, and their whole duty; they must decide upon the law as well as upon the fact.” See Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic 197–98 (New York: Oxford University Press, 1971). A similar statute, declaring the jury's right to decide law as well as fact in criminal cases, was passed in 1855. Mass. Acts & Resolves 1855, ch. 152. This statute responded to a 1845 judicial opinion that had denied the jury's law-deciding power. See Note, 74 Yale L.J. at 176–83 (cited in note 22).Google Scholar

41 See, e.g., Conn. Laws, 1821 Rev., tit. 22, 112; Ga. Penal Code of 1833, 14th div., S 16; Ill. Crim. Code S 188, adopted in Rev. Laws (1827).Google Scholar

42 See, e.g., State v. Jones, 5 Ala. 666 (1843); Bartholemew v. Clark, 1 Conn. 472 (1816); Townsend v. State, 2 Blackf. 150 (Ind. 1828); Bostwick v. Gasquet, 10 La. 80 (1836); People v. Croswell, 3 Johns Cas. 337 (N.Y. 1804); McGowan v. State, 9 Yerger 184 (Tenn. 1836); State v. Wilkinson, 2 Vt. 480 (1829).Google Scholar

43 71 Mass. (5 Gray) 185 (1855). The opinion effectively nullified the 1855 statute referred to in note 40 above.Google Scholar

44 Duffy v. People, 26 N.Y. 588 (1863).Google Scholar

45 Stare v. Wright, 53 Me. 328 (1865).Google Scholar

46 Dejarnette v. Commonwealth, 75 Va. 867 (1881).Google Scholar

47 State v. Burpee, 65 Vt. 1 (1892).Google Scholar

48 Kane v. Commonwealth, 89 Pa. 522, 527 (1879).Google Scholar

49 Commonwealth v. Bryson, 276 Pa. 566. 570 (1923). Pennsylvania was not the only state in which the criminal jury's law-deciding authority survived into the 20th century. In Illinois, despite a statute ordaining juries in criminal cases to be “judges of law and fact” that had been on the books since 1827, the supreme court in 1931 approved a trial judge's statement to the jury of its duty “to follow the law as it is given to it by the court in his instructions.” People v. Bruner, 343 Ill. 146 (1931). In 1902, the Connecticut supreme court decisively laid to rest the criminal jury's law-deciding power. State v. Gannon, 75 Conn. 206 (1902). There, too, an early 19th-century statute had endorsed the jury's authority; the legislature abrogated that embarrassing provision in 1918.Google Scholar

50 Indiana's constitution provides: “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” Art. 1 (Bill of Rights), 19. Maryland's provides: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” Declaration of Rights, Art. 23.Google Scholar

51 Fuquay v. State, 583 N.E.2d 154, 156 (Ind. App. 1991). The law “as it in fact is” apparently means “as it is enacted by the legislature of this state and considered and interpreted by the higher courts of record;” the constitution does not confer on juries the power “to make [their] own laws.” Hoffa v. State, 194 Ind. 300, 301 (1924). In the eyes of the Fuquay court, the only apparent alternative to jury decision according to official understanding of the law is judgment “on the basis of whim or personal prejudice.” There is no indication of any awareness of the potentially legitimate bases for broader jury authority.Google Scholar

52 583 N.E.2d at 156.Google Scholar

53 Maryland courts have avoided the actual historical meaning of its provision as well. There is no requirement that a judge instruct the jury about its constitutional authority, and counsel can be prohibited from arguing an interpretation of the law that differs from that expressed in the court's instructions. Counsel may not “attempt to persuade the jury to enact new law or repeal or ignore existing law.” Montgomery v. State, 292 Md. 84, 89 (1981). It has recently been candidly acknowledged that article 23 “does not mean precisely what it says it means.” Stevenson v. State, 286 Md. 167, 176 (Md. App. 1980).Google Scholar

54 See, e.g., Gavett v. Manchester & Lawrence Railroad, 82 Mass. 501 (1860) (holding that, where there is no genuine factual issue, judge must direct a verdict lest “the jury … be called on to decide a pure question of law”).Google Scholar

55 See Note, 74 Yale L.J. at 185 (cited in note 22).Google Scholar

56 Id.Google Scholar

57 A correlative development was a general tendency to restrict the ability of trial judges to influence the jury's fact-finding. See id. at 186–89.Google Scholar

58 Nelson, Americanization of the Common Law 165–71 (cited in note 4).Google Scholar

59 Horwitz, Transformation 1780–1860 at 28–29, 141–43, 228 (cited in note 23).Google Scholar

60 One might argue that 19th-century Americans sought judicial control of the jury in criminal cases in order to ensure more rigorous enforcement of the criminal law, which in turn was deemed necessary for a healthy business environment. Of course, this argument would depend on evidence of perceptions that juries were more sympathetic to criminal defendants and that this was an impediment to economic development.Google Scholar

61 See Note, 74 Yale LJ. at 190–92.Google Scholar

62 See id. at 191.Google Scholar

63 See id. Similar views, at least in relation to so-called complex civil litigation, are expressed today. See. e.g., In re Japanese Elec. Prod. Antitrust Litigation, 631 F.2d 1069, 1089 (3d Cir. 1980) (holding that Seventh Amendment guarantee does not extend to trials in which factual complexity would result in violation of due process clause if decision were left to jury).Google Scholar

64 See Note. 74 Yale L.J. at 191–92.Google Scholar

65 Ferguson, , Law and Letters 200 (cited in note 21).Google Scholar

66 Recall that Story was a proponent of a reduced role for the jury. See text accompanying notes 32–33 above.Google Scholar

67 Ferguson, , Law and Letters 201.Google Scholar

68 By the mid-19th century, election of state judges, though not universal, was the norm. Lawrence M. Friedman, A History of American Law 323 (New York: Simon & Schuster, 1973).Google Scholar

69 See generally Charles M. Cook, The Codification Movement: A Study of Antebellum Legal Reform (Westport, Conn.: Greenwood Press, 1981), and also Robert W. Gordon's review of that book, 36 Vand L Rev. 431 (1983).Google Scholar

70 See Morton J. Honwitz, The Transformation of American Law 1870–1960: The Crisis of Legal Orthodoxy 9–31 (New York: Oxford University Press, 1992) (“Horwitz, Transformation 1870–1960”); Duncan Kennedy, “Towards an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940,” 3 Res. L & Soc. 3 (1980); see also Thomas C. Grey, “Langdell's Orthodoxy,” 45 U. Pitt. L Rev. 1 (1983) (describing “classical orthodoxy”).Google Scholar

71 Honwitz, Transformation 1870–1960 at 11.Google Scholar

72 Gordon, , 36 Vand L Rev. at 455.Google Scholar

73 Honwitz, Transformation 1870–1960 at 14.Google Scholar

74 This emergence of a progressive challenge to classical legal thought is the main theme in Honwitz's new book, The Transformation of American Law 1870–1960 (cited in note 70).Google Scholar

75 See generally Singer, Joseph, “Legal Realism Now,” 76 Calif L Rev. 465 (1988).CrossRef Google Scholar

76 Compare Frank Michelman's suggestion that we view the deliberations and judgments of the current Supreme Court as occasions of dialogic self-government—involving conversation, reason giving, and persuasion, rather than mute deference to authority-in which the justices act as stand—ins for the rest of us. See Michelman, Frank I., “The Supreme Court, 1985 Term—Foreword: Traces of Self-Government,” 100 Harv. L. Rev. 4, 72–73, 75–77 (1986). Of course, our confidence in this vision of the Court's activities depends on our confidence in the values and wisdom of the justices who happen to be sitting there.Google Scholar

77 Following Frank Michelman, for reasons I explain in David Millon, “Objectivity and Democracy,” 67 N.Y.U. L Rev. 1, 38–42 (1992).Google Scholar

78 I am referring to the period from roughly 1200 to around 1500.Google Scholar

79 See Millon, David, “Positivism in the Historiography of the Common Law,” 1989 Wis. L Rev. 669. The common law action of attaint is typically thought to have provided a remedy for those who suffered loss as a result of jury verdicts contrary to official legal doctrine, but in fact attaint seems to have been designed to remedy corrupt or dishonest verdicts, rather than substantively erroneous ones.Google Scholar

80 See Green, Verdict chs. 2 & 3 (cited in note 12).Google Scholar

81 Premodern common lawyers often spoke of law as “reason,” following the influential views of Thomas Aquinas. For discussion, see Norman Doe, Fundamental Authority in Late Medieval English Law chs. 3 & 5 (Cambridge: Cambridge University Press, 1990), a good book unfortunately marred by a strained effort to find an incipient positivism in medieval common law theory. For an introduction to Aquinas' legal theory, see Carl Joachim Friedrich, The Philosophy of Law in Historical Perspective ch. 6 (2d ed. Chicago: University of Chicago Press, 1963).Google Scholar

82 Prohibitions Del Roy, 77 Eng. Rep. 1342, 1343 (1607).Google Scholar

83 Recall its resurgence in connection with arguments favoring jury nullification during prosecutions of 1960s left-wing radicals. Even today, the popularist tradition persists in the activities of an advocacy group called the Fully Informed Jury Association. This group promotes state constitutional amendments requiring judges to inform juries of a right to determine whether the law as articulated by the court is misapplied or unjust. It draws on an odd mix of support, including members of Operation Rescue and the National Rifle Association, environmentalists, tax protesters, advocates for the legalization of marijuana, and motorcyclists opposed to mandatory helmet laws. Federal district judge William w. Schwarzer offers the orthodox response, asserting that the Association's objective “would be chaotic and completely inconsistent with the fundamental principles underlying our system. It would be a kind of dictatorship of the proletariat.” See Katherine Bishop, “Diverse Group Wants Juries to Follow Natural Law,”N.Y. Times, 27 Sept. 1991, B, at 16.Google Scholar

84 See Taylor v. Louisiana, 419 U.S. 522, 538 (1975). Accordingly, it is hard to have much confidence in the idea of a “jury of one's peers.” For discussion of what this idea means under current practice and what it might mean if it were taken seriously, see LaRue, Lewis H., “A Jury of One's Peers,” 33 Wash & Lee U.L Rev. 841 (1975).Google Scholar

85 See especially Steven J. Burton, An Introduction to Law and Legal Reasoning (Boston: Little, Brown & Co., 1985); Owen M. Fiss, “Conventionalism,” 58 S. Cal. L Rev. 177 (1985); id, “Objectivity and Interpretation,” 34 Stan. L Rev. 739 (1982).Google Scholar

86 For a critique of the mainstream legal conventionalists and an effort to make better use of a conventionalist perspective, see Millon, 67 N.Y.U. L Rev. 1 (cited in note 77). The ideas expressed in this and the following paragraphs are worked out more fully in that article.Google Scholar

87 See Kennedy, Duncan, “Freedom and Constraint in Adjudication: A Critical Phenomenology,” 36 J. Legal Educ. 518 (1986); Balkin, J. M., “Ideology as Constraint,” 43 Stan. L Rev. 1133 (1991); Brion, Denis J., “Rhetoric and the Law of Enterprise,” 42 Syracuse L Rev. 117 (1991).Google Scholar

88 See Michelman, , 100 Harv. L Rev. 4; Sunstein, Cass R., “Beyond the Republican Revival,” 97 Yale LJ. 1539 (1988).Google Scholar

89 Michelman's effort to locate a conception of dialogic self-government beyond the deliberations of the Supreme Court in other arenas (such as local government, civic organizations, and the workplace) does not recognize the possible implications of his vision for the role of the jury. See Michelman, Frank, “Law's Republic,” 97 Yale LJ. 1493, 1528–32 (1988).CrossRef Google Scholar

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