Writing

Hreno, Travis. Jury Nullification: The Jurisprudence of Jurors' Privilege. Cambridge: Ethics International Press, 2024. 

Description: Jury nullification, in its simplest definition, occurs when a jury returns a not guilty verdict for a defendant it believes to be legally guilty of the crime charged. To put this explicitly, a jury nullifies when, despite believing both a) that the defendant did, beyond a reasonable doubt, commit the act/omission in question, and b) that such behavior is, in fact, prohibited by law, nevertheless declares the defendant innocent. This book explores the specifically philosophical aspects of the phenomenon. Is jury nullification a right? A power? A mere ability? A privilege? A pernicious form of juror malfeasance? Is a system that allows for jury nullification more, or less just, than one that does not? This important book fills a gap in the current scholarship around jury nullification, which, for the most part, has been confined to purely doctrinal analyses, rather than the broader ethical, social, political, and philosophical contours of this issue.

Hreno, Travis. Participatory Democracy and the Criminal Law. Cambridge: Ethics International Press. 

Description: Participatory Democracy and the Criminal Law examines how the principles of participatory democracy are instantiated within the criminal justice system and explores how these principles could be further developed and expanded within this context. This collection of essays focuses on multiple participatory structures within the criminal law, with the criminal jury serving as a paradigmatic example, alongside community-based sentencing initiatives and restorative justice practices, to name but a few. With a focus on both the theoretical underpinnings and practical applications of participatory political structures, this book covers a range of topics such as the historical evolution of jury trials, the significance of community representation in sentencing, participatory structures in law enforcement, and models of community-based restorative justice. This work illuminates the ways in which participatory mechanisms not only administer justice but also reinforce the civic identity of individuals within a democratic society.

“Jury Nullification and Participatory Democracy,” in Political Participation: Citizen Input in Government, James Cockerham, ed., Vernon Press (forthcoming early 2026). 

Abstract: In this chapter, I argue that the criminal jury, with its capacity for nullification, is a powerful tool for aligning the criminal law with the values of the community it is meant to govern; it is, in this sense, a foundational mechanism of participatory democracy. I begin by situating the criminal jury within the framework of participatory democracy, emphasizing the principles of direct citizen involvement, decentralization of power, deliberation, and equality of participation. On this account, the jury emerges as a site of genuine democratic engagement, where ordinary citizens not only apply the law but participate in its moral interpretation. I conclude that it is the jury’s capacity to nullify that allows it to fulfill this democratic role. A jury stripped of its nullificatory capacity would cease to be an instrument of participatory governance and would instead become a passive extension of state authority.

Hreno, Travis. “A Kantian Defense of Jury Nullification within the Rule of Law,” (in progress). 

Abstract: Under a Kantian framework, jurors have a duty to treat defendants as ends unto themselves, and not merely a means to some other end. When the positive law departs from justice and fails to reflect the people’s reasoned will, enforcing it would instrumentalize the defendant and undermine the democratic ideals that give the rule of law its authority and justification. In such cases, nullification may, in fact, be morally required. This paper argues that jury nullification, properly understood, allows jurors to uphold justice while sustaining the participatory and representative foundations of governance, consistent with the rule of law.

Hreno, Travis. “The Grammar of Guilt: The Jurisprudence of Jury Instructions, Obligation, and Jury Nullification,” (in progress).

Abstract: Jury nullification occupies a paradoxical position in American jurisprudence. Courts affirm the jury’s power to acquit against the evidence while condemning its exercise, revealing a deep tension between the constitutional structure of the jury trial and the procedural mechanisms of criminal adjudication. This tension is most clearly expressed in the standard pattern jury instructions, which assert that jurors must convict if the prosecution meets its burden of proof. Such language, I argue, misstates the law and undermines judicial integrity by preserving the illusion of legal obligation at the cost of honesty about juror independence and discretion. In response, I propose a revised jury instruction that preserves doctrinal accuracy without explicitly inviting nullification.

Hreno, Travis. “Jury Nullification, Verdictal Asymmetry, and the Ultimate Logic of Anarchy,” Philosopher’s Compass 1(1), 2025.

Abstract: This paper critically examines the 'anarchy objection' to jury nullification, which asserts that jury nullification leads to inconsistent verdicts (verdictal asymmetry) and, as a result, social anarchy and chaos. Through careful analysis, I argue that the anarchy objection is predicated on two flawed premises: first, that jury nullification promotes verdictal asymmetry, and second, that such asymmetry leads to anarchy. Such commitments are, I argue, empirically unsupported and conceptually misguided. Verdictal asymmetry is an intrinsic feature of the common law system, present at nearly every adjudicative stage, and not uniquely linked to jury nullification; yet we certainly do not live in an environment of jural/social anarchy. Finally, I discuss how the principle of treating like cases alike is primarily a procedural constraint, not a mandate for verdictal symmetry. By dismantling the anarchy objection, this paper contributes to a deeper understanding of the jurisprudence surrounding the jury nullification debate and its role within the legal system.

Hreno, Travis. “Jury Nullification and the Bad-Faith Juror,” Leap: The Journal of Legal Ethics and Philosophy 1(1), 2013. 

Abstract: In this paper, I argue that instructing juries about their privilege to nullify can sometimes undermine the integrity of the trial process. While jury nullification is legally protected and sometimes morally appealing, I maintain that explicitly informing jurors of this privilege risks promoting what I call “bad-faith deliberation.” When jurors are told they may disregard the judge’s instructions on the law, they may also feel free to disregard other procedural safeguards such as the presumption of innocence and the burden of proof. Drawing on empirical work by Irwin Horowitz, I show that nullification instructions can, paradoxically, increase the likelihood of unjust convictions, particularly in morally charged cases. I conclude that such instructions ultimately subvert the very fairness they are meant to promote.

Hreno, Travis. “The Jury Nullification Instruction and the De Jure/De Facto Debate: A Hohfeldian Analysis,” Public Affairs Quarterly 22(3): 231-251, 2008.

Abstract: This paper addresses whether juries should be explicitly instructed that they have the ability to nullify - that is, to acquit a defendant even when the legal evidence clearly supports a conviction. Although jury nullification is legally permitted and historically entrenched in American law, it remains a source of controversy, particularly over whether jurors should be directly informed of this ability. Much of the debate turns on whether this capacity should be understood as a legal right or merely a de facto power. I argue that framing the issue in terms of legal status is unhelpful. Drawing on Hohfeld’s framework for analyzing legal relations, I show that the distinction between a right and a power does little to clarify the jurisprudential status of the nullification instruction. 

Hreno, Travis. “The Rule of Law and Jury Nullification,” Commonwealth Law Bulletin 34(2), 2008.

Abstract: Jury nullification occurs when a jury votes to acquit a defendant in a criminal trial despite its belief that the defendant is, in fact, guilty. One of the main objections to this practice is that it subverts the rule of law. In this paper, I examine this objection by expanding on what is entailed by the rule of law objection and demonstrating that the very principles that the rule of law are built upon—liberty and autonomy—are, in fact, preserved and promoted, and not subverted by, jury nullification.

Hreno, Travis. “Necessity and Jury Nullification,” Canadian Journal of Law and Jurisprudence 20(2): 351-378, 2007. 

Abstract: This paper addresses whether juries should be explicitly instructed that they have the ability to nullify—that is, to acquit a defendant even when the legal evidence clearly supports a conviction. Although jury nullification is legally permitted and historically entrenched in American law, it remains a source of controversy, particularly over whether jurors should be directly informed of this ability. Much of the debate turns on whether this capacity should be understood as a legal right or merely a de facto power. I argue that framing the issue in terms of legal status is unhelpful. Drawing on Hohfeld’s framework for analyzing legal relations, I show that the distinction between a right and a power does little to clarify the jurisprudential status of the nullification instruction. 

Review: Legal Reasoning by Melvin Eisenberg (author), Philosophy in Review Vol. 45, no. 1 (February 2025). 

Review: Pre-Liberal Political Philosophy: Rawls and Plato, Aristotle, Augustine, Aquinas, by Daniel Dombrowski (author), Philosophy in Review Vol. 44 no. 1 (February 2024). 

Review: The Will to Punish, by Didier Fassin (author), Metapsychology Online Reviews, Vol. 24, No. 20 (May 2020). 

Review: Law and Religion in the 21st Century: Relations between States and Religious Communities, by Rinaldo Cristofori (Editor), Silvio Ferrari (Editor), The Commonwealth Law Bulletin, vol. 38, no. 4 (December 2012). 

Review: Truth and Progress, by Richard Rorty (author), Philosophy in Review Vol. 19 no. 4 (August 1999).

Review: On the Laws and Governance of England, by Sir John Fortescue (author), Philosophy in Review, Vol. 19, No.1 (February 1999). 

Review: Ethical Issues: Perspectives for Canadians, by Eldon Soifer (author), Philosophy in Review, vol. 17, no. 3 (1997).