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Civilizing Batson

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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.



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