1. See, e.g., Butler, Paul, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995) (defending practice of jury nullification on the basis of substantive justice and systemic change but not the rule of law)CrossRefGoogle Scholar.

2. See William Eskridge, Philip Frickey & Elizabeth Garrett, Legislation (2007), at 689.

3. Oxford English Dictionary (online ed.), defn. 3.

4. See, e.g., Marder, Nancy S., The Myth of the Nullifying Jury, 93 Nw. U. L. Rev. 877, 909 (1999)Google Scholar.

5. Oxford English Dictionary (online ed.), defn. 1.

6. Brown, Darryl K., Jury Nullification within the Rule of Law, 81 Minn. L. Rev. 1149, 1150 n.3 (1997)Google Scholar.

7. Marder, supra note 4, at 882.

8. Brown, supra note 6, at 1150, citing Kent Greenawalt, Conflicts of Law and Morality 360 (1989).

9. This is Brown's first category. Brown, supra note 6, at 879. This could be like the creation of an excuse or justification, or a de minimis defense.

10. Id. at 1172 (“a case in which a just law is justly applied to the defendant, but in the process of which public officials violate important laws.”).

11. See generally Butler, supra note 1. On “Bronx juries,” see Marder, supra note 4, at 879.

12. See Marder, supra note 4, at 879; Brown, supra note 6, at 1178. Brown limits his discussion to nullification of “unjust laws,” and the problems with this are discussed below.

13. See generally Frank McLynn, Crime and Punishment in Eighteenth-Century England (1991) (describing the “Bloody Code”); Jerome Hall, Theft, Law and Society (2d ed. 1952), at 126–132 (same). Again, we assume in these cases that the text, intent, and purpose of the law all match up.

14. Jeffrey Abramson, We, the Jury (1994), at 80–85 (describing Fugitive Slave Act nullifications).

15. See Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (2002), at 83; Bressler, Jonathan, Reconstruction and the Transformation of Jury Nullification, 78 U. Chi. L. Rev. 1133, 1189 (2011)Google Scholar (“In 1867, Mormon leaders even petitioned Congress for the statute's repeal, claiming that the absence of a single conviction demonstrated its inefficacy . . . [and a] congressional report conceded that the Morrill Act was a ‘dead letter.’”).

16. See Harry Kalven & Hans Zeisel, The American Jury (1966), at 291.

17. John Finnis, Natural Law and Natural Rights (1980), at 270.

18. Joseph Raz, The Authority of Law (1979), at 212.

19. Id. at 213 (“As we shall see, what the doctrine requires is the subjection of particular laws to general, open, and stable ones. It is one of the important principles of the doctrine that the making of particular laws should be guided by open and relatively stable general rules.”).

20. Lon L. Fuller, The Morality of Law (1969), at 38–39.

21. Matthew Kramer, Objectivity and the Rule of Law (2007), at 104.

22. John Rawls, Theory of Justice (1st ed. 2005), at 236–238; Raz, supra note 18, at 216–218; Finnis, supra note 17, at 270–271.

23. Raz, supra note 18, at 214.

24. Id. at 219; Finnis, supra note 17, at 273 (“[The] fundamental point of the desiderata is to secure to the subjects of authority the dignity of self-direction and freedom from certain forms of manipulation.”); F.A. Hayek, The Road to Serfdom (1944), at 54 (“[S]tripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge.”); Rawls, supra note 22, at 235 (describing why the rule of law is closely related to liberty and is in contradiction with the exertion of arbitrary power).

25. Think, for example, of the tradition of prosecutorial and police discretion in the United States and other countries—this undermines the rule of law, but the alternative of a zero-discretion system seems to sacrifice too much for the little it would provide.

26. Finnis, supra note 17, at 271.

27. Kramer, supra note 21, at 104.

28. Brown, supra note 6, at 1158–1159.

29. Id. at 1162.

30. Id. at 1163.

31. Ronald Dworkin, Law's Empire (1986), at 96.

32. Id. at 187–190.

33. Radin, Margaret Jane, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781, 809–814 (1989)Google Scholar.

34. Brown, supra note 6, at 1165.

35. He may be mistaken in his interpretation of these prior theories, but that is not of primary concern to us. See Dworkin, supra note 31, at 101–113 (discussing the case of a judge applying an evil law).

36. Brown, supra note 6, at 1178 (mentioning all of the familiar historical examples).

37. Id. at 1180.

38. Id. at 1182.

39. Id.

40. Marder, supra note 4, at 892–894.

41. Id. at 895.

42. Id. at 925.

43. Id. at 929.

44. Id. at 932.

45. Id.

46. Id. at 935–936. She does admit that if they became systematic, this would be a problem, but she offers no limiting principle that would prevent this.

47. Id.

48. Carroll, Jenny, Nullification as Law, 102 Geo. L.J. (forthcoming, 2014), at 48Google Scholar, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2190703&download=yes. An outline of her arguments in this work is found in the section of her earlier article, Carroll, Jenny E., The Jury's Second Coming, 100 Geo. L.J. 657, 693–698 (2012)Google Scholar.

49. Carroll, Nullification, supra note 48, at 54.

50. Id. at 50 (emphasis added).

51. Id. at 52 (“[N]ullification is a warning that whatever the formal construct of the law, it exists apart from the citizen's own understanding of the law. It demands correction of constructs of the law that do not account for the citizen's lived experience and expectations of the law as a result of those experiences. . .”); id. at 55 (“That the citizen juror's sense of justice may be inconsistent with or in direct conflict with a larger national sense does not undermine its value or displace it as a possible source of law.”). She calls the jury a “forum for our dissent.” Id.

52. “Conventional” as opposed to some deeper “community morality” that might come from the interpretations of an epistemically privileged observer (as in Dworkinian theory). See Dworkin, supra note 31, at 201 (describing level of concern needed for the four requirements of associative obligations: “The concern they require is an interpretive property of the group's practices of asserting and acknowledging responsibilities—these must be practices that people with the right level of concern would adopt—not a psychological property of some fixed number of the actual members.”).

53. Raz, supra note 18, at 214.

54. Rawls, supra note 22, at 236. There is really only one continuing debate surrounding the “internal morality” or inherent value of the rule-of-law precepts: the Kramer-Simmonds debate. Compare Kramer, Matthew, For the Record: A Final Reply to N.E. Simmonds, 56 Am. J. Juris. 115 (2011)CrossRefGoogle Scholar, with Simmonds, N.E., Kramer's High Noon, 56 Am. J. Juris. 135 (2011)CrossRefGoogle Scholar. Both sides would agree that the “justice” or “injustice” of a given rule of law is determined by the substantive content of the rules being promulgated—the debate is merely about the effect (positive, negative, or neutral) that the rule of law has on the implementation of that given substantive policy. Even if we agree with Simmonds that there is some “internal” justice or morality in the rule of law, then, this is not to say that there can be no unjust rule of law. It means only that a rule of law that on the whole implements an unjust system of norms is, by virtue of the eight demands, made slightly less bad.

55. Rawls, supra note 22, at 236.

56. Brown, supra note 6, at 1192.

57. These are unacceptable, he says, because they are applications skewed by “pure prejudice or animosity.” Id. at 1193. Even if this is true, does the distinction between application and rejection give us the principled delineator that we are searching for? It may mean that the jury is not “disagreeing” with the law substantively, but if anything, this brings the action more in line with the rule of law. Second, even if Brown is right, and race-based nullifications are not substantive rejections, this means only that his treatment is ever more incomplete: it means that he does not discuss the inverse scenario at all. Finally, in any case there is good reason to doubt even this first attempt at delineation: these Southern nullifications are but another form of substantive rejection of the law. Race-based nullifications are bias writ large—they proceed from a negative view that the jury has about an entire subset of the population and not just an individual. The racist juries object to the blanket prohibition of “assault” (or killing) of “persons” because they believe that no blacks should count as “persons” and that the beatings and lynchings of these people is entirely acceptable as a matter of public morality. To call this a disagreement about “application” misses, or makes light of, the fundamental disagreement. As Michal Belknap writes, “The slaying of a civil rights worker lay outside the boundaries of that crime [of murder] as delineated ‘by the community conscience’ of Alabama.” Michal R. Belknap, Federal Law and Southern Order: Racial Violence and Constitutional Conflict in the Post-Brown South (1987), at 189.

58. Brown, supra note 6, at 1194 n.176.

59. Raz, supra note 18, at 214.

60. Marder, supra note 4, at 935–936.

61. Carroll, Jury Nullification, supra note 48, at 65.

62. See, e.g., the results from the 2012 presidential election. 2012 Presidential Election Results, Washington Postavailable at http://www.washingtonpost.com/wp-srv/special/politics/election-map-2012/president.

63. See, e.g., Bafumi, Joseph & Parent, Joseph, International Polarity and America's Polarization, 49 Int'l Pol. 1 (2012)Google Scholar.

64. Brown, supra note 6, at 1193.

65. Id. at 1194 n.176 (“The question may be a close enough one, though, or that distinction slim enough, that the difference is ultimately one of moral viewpoint or substantive principle.”).

66. Brown's second answer is also unsatisfying. He admits that the localistic Southern nullifications violated the rule of law but notes that the rule of law had already broken down in those circumstances—judges, police, and legislators all created a racist version of justice. Thus, nullification is not cause of the rule of law's breakdown in that locality but is just another emanation or effect: it is the larger “lack of a supportive, sustaining political and moral culture” that is the problem. Id. at 1196. Again, this is simply not responsive. That nullification is a product—and not the first cause—of a breakdown of the rule of law does not mean that this product does not itself represent a continuing violation.

67. Marder, supra note 4, 898.

68. Id. at 929.

69. Say, if the Seventh Amendment were interpreted using a Living Constitution approach, then the widely accepted contemporary view of juries as solely “finders of fact” would foreclose her appeal.

70. Carroll, Jury Nullification, supra note 48, at 55.

71. It seems obvious for one reason: because the entire point or value of the constellation of rule-of-law precepts is predictability. Law must guide behavior, and to do so, it must be predictable. Raz, supra note 18, at 214, 220; Rawls, supra note 22, at 235 (“[Legal rules] constitute grounds upon which persons can rely on one another and rightly object when their expectations are not fulfilled.”); Finnis, supra note 17, at 272. All this means that the “rule of law” precepts must be measured at the level at which the content of the rules are promulgated and apply: the jurisdictional level. It is the prospective promulgation of the rule content that enables law's strictures to be known and therefore allows them to guide conduct in a predictable manner. If we allowed for localities to be the index of the rule of law, then we would destroy this function—the morality or sentiment of the given community at a given time might never be known in advance by a defendant, and passers-through would be especially helpless. Law ceases to be knowable and thus predictable when it becomes divorced from the legal rule that applies to the jurisdiction. For this reason, among others, the rule of law cannot admit of localism. This is not to say that local jurisdictions are not compatible with it. See infra note 93.

72. Lawrence v. Texas, 539 U.S. 558, 588 (2003) (Scalia, J., dissenting).

73. Say, an individual “sense” that human sacrifice is just and divinely approved.

74. See, e.g., Bd. of Governors of Fed. Reserve System v. Dimension Fin. Corp., 474 U.S. 361, 373–374 (1986) (“Congress may be unanimous in its intent to stamp out some vague social or economic evil; however, because its Members may differ sharply on the means for effectuating that intent, the final language of the legislation may reflect hard-fought compromises.”).

75. See, e.g., Bafumi & Parent, supra note 63, at 1.

76. Larry Alexander & Emily Sherwin, The Rule of Rules (2001), at 12.

77. Id.

78. Id. at 14; Scott Shapiro, Legality (2011), at 171 (“Legal institutions are supposed to enable communities to overcome the complexity, contentiousness, and arbitrariness of communal life by resolving those social problems that cannot be solved, or solved as well, by nonlegal means alone.”); Finnis, supra note 17, at 231–232 (“There are, in the final analysis, only two ways of making a choice between alternative ways of co-ordinating action to the common purpose of common good of any group. There must be either unanimity, or authority.”).

79. See supra, note 13.

80. The inverse scenario of an unjust jury nullifying a just positive law on the basis of widespread jurisdictional consensus against the law does not itself create any congruence problems. Although we should oppose this nullification because of its substantive moral iniquity, it is not the rule of law that would ground our opposition (at least not if the nullifications took place consistently across like cases).

81. For example, apathy of citizens and groups, or structural, financial, or other impediments to implementing political views.

82. See Yablon, Marcia, The Prohibition Hangover: Why We Are Still Feeling the Effects of Prohibition, 13 Va. J. Soc. Pol'y & L. 552, 588–592 (2006)Google Scholar.

83. See Shapiro, supra note 78, at 175 (“[S]ocial deviance caused by vicious character is one of the reasons why law is an indispensable social institution.”). He calls this the “problem of bad character.” Id. at 169.

84. There are real-life examples of this phenomenon, although not as extreme, where a minority group consciously sets up or takes over a locality and allows for its leaders to exert de facto political control. The village of Kiryas Joel in New York is one such case, where a sect of Hasidic Jews purchased empty land and began populating the area until municipal incorporation was accomplished. See generally Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687 (1994). Another example involves a separatist community in Hancock, New York, which the residents have renamed “Islamberg,” and where Islamic law is applied in a de facto manner.

85. See supra, note 15.

86. The famous case of Warren Jeffs is instructive. See U.S. Polygamy Sect Leader Sentenced, BBC News, available at http://news.bbc.co.uk/2/hi/americas/7104832.stm.

87. See Shapiro, supra note 78, at 175.

88. There will always be cases of unsettled VMs—where moral division is not geographically bound and can occur even within localities—but these are less relevant to the question of jury nullification, as consensus is required for the unanimous votes necessary to nullify.

89. Finnis, supra note 17, at 271.

90. Id. at 231 (describing how authority in a group is required because of “stupidity and incompetence of its members, their infirmity of purpose and want of devotion to the group, their selfishness and malice, their readiness to exploit and to ‘free ride,’” but also in communities with members that have great intelligence and skill so as to solve “co-ordination problems”); Shapiro, supra note 78, at 170 (“The circumstances of legality obtain whenever a community has numerous and serious moral problems whose solutions are complex, contentious, or arbitrary.”).

91. Finnis, supra note 17, at 231–233:

Shapiro, supra note 78, at 163–164:

Shapiro, supra note 78, at 170 (“Communities who face such circumstances, therefore, have compelling reasons to reduce these associated costs and risks. And in order to do so, they will need the sophisticated technologies of social planning that only legal institutions provide.”).

92. Carroll, Jury Nullification, supra note 48, at 61.

93. “Localism” that is explicitly recognized by jurisdictional boundaries and legislative power (a locality that is a jurisdiction) presents no threat to the rule of law. This is the point of federal systems but also of local governments that can legislate (as in Home Rule states). There is no congruence problem here precisely because congruence is measured at the jurisdictional level—the creation of the jurisdiction obviates the problem.

94. Of course, the unreviewable character of a jury's verdict to acquit in a criminal case is an important background assumption. Marder, supra note 4, at 882.

95. U.S. Const. amend. VII. (“an impartial jury of the State and district wherein the crime shall have been committed”) (emphasis added).

96. Again, this is not always or even often the case—many localities have internal division on many moral questions—but this reality is less interesting for our current discussion about the rule of law, as presumably vicinages that are internally divided will not themselves have sufficient consensus to nullify (twelve random jurors would not be found to act unanimously in opposition to the positive law unless there was more of a localistic consensus).