40 Notre Dame L. 1 (1964-1965)
This article suggests that the determination of "obscenity" in cases should be sent to the jury to determine under proper instructions rather than judges because the jury reflects the community's morals and mores more truly than even the wisest of judges. The jury is the mechanism provided by the common law for determination of questions involving the presence or absence of due care, reasonableness, prudence, decency and other concepts reflecting the common sense and/or conscience of a community. Specifically, this article argues that the obscenity determination should be determined with reference to the time and place of the community of the jury.
Thomas L. Shaffer & Joseph O'Meara,
Obscenity in the Supreme Court: A Note on Jacobellis v. Ohio,
40 Notre Dame L. 1 (1964-1965).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/928
Reprinted with permission of Notre Dame Law Review (previously Notre Dame Lawyer).