Civilizing Batson

Author:Nancy Leong
Position::Assistant Professor, University of Denver Sturm College of Law
Pages:1561-1583
SUMMARY

In the twenty-five years since Batson v. Kentucky, courts have gradually narrowed its holding and limited its application. Subsequent decisions have diminished the utility of Batson as a means of challenging racially discriminatory peremptory strikes. This Essay examines why the doctrine has evolved this way. Elsewhere I have explored the influence of contextual variables -the available remedy,... (see full summary)

 
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1561
Civilizing Batson
Nancy Leong
ABSTRACT: In the twenty-five years since Batson v. Kentucky, courts
have gradually narrowed its holding and limited its application.
Subsequent decisions have diminished the utility of Batson as a means of
challenging racially discriminatory peremptory strikes. This Essay examines
why the doctrine has evolved this way. Elsewhere I have explored the
influence of contextual variables—the available remedy, the facts that courts
encounter, and the procedural posture in which rights-making occurs—on
the ultimate scope of the substantive right that courts articulate. Batson
provides a particularly rich opportunity to consider these variables because
peremptory challenges are adjudicated in a highly idiosyncratic context: a
criminal defendant, appealing his conviction by a jury, seeks the strong
medicine of reversal for a harm that was perpetrated against a juror—not
against the defendant directly—and that may not even have affected the
outcome of the trial.
The idiosyncrasies of the context in which Batson is litigated lend
themselves to an intriguing inquiry: How might Batson doctrine have
evolved differently if peremptory challenges were also litigated by the jurors
who had been struck? I conclude that—were courts to adjudicate peremptory
challenges both in the context of claims by criminal defendants seeking
reversal and in the context of claims by struck jurors seeking money damages
or declaratory relief—the shape of the doctrine would provide a more
accurate appraisal of the harms flowing from the use of race in peremptory
challenges and a more robust mechanism for addressing those harms.
I
NTRODUCTION .................................................................................... 1563
I. CONTEXTUALIZING BATSON ................................................................. 1564
II. EXCLUDED JURORS AS BATSON LITIGANTS ........................................... 1569
A. BATSON CLAIMS AS CIVIL RIGHTS SUITS ......................................... 1569
Assistant Professor, University of Denver Sturm College of Law. I am grateful to Jeffrey
Bellin, Alan Chen, Sam Kamin, Pam Karlan, and Justin Marceau for useful comments and
suggestions. I also appreciate the comments I received at the Io wa Law Review symposium,
Batson at Twenty-Five: Perspectives on the Landmark, Reflections on Its Legacy.
1562 IOWA LAW REVIEW [Vol. 97:1561
B. JURORS AS ENFORCERS .................................................................... 1572
III. IMPLEMENTING A CIVIL BATSON ........................................................... 1576
CONCLUSION ....................................................................................... 1583

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