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Jury Selection and the Coase Theorem

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Peremptory challenges offer a unique application for the Coase Theorem. Taken in isolation from the rest of the litigation sequence, jury selection is distinct in its complete absence of negotiation between the parties, despite their physical presence together in the courtroom during voir dire. Every other component of American trials includes the opportunity for parties to negotiate either a settlement for the dispute or a stipulation regarding some item, such as the introduction of particular evidence or testimony. In contrast, the rituals for jury selection evolved in a way that excludes interchange between the parties. The procedures could have developed differently, of course, as we can imagine a world where the attorneys engage in “trading” exclusions of their least desirable jurors. Nevertheless, for historical reasons shrouded in medieval history, we have no trading, or transacting, between the litigators. In Coasian terms, jury selection and peremptory challenges are an instance of maximum transaction costs, and a rare instance where transaction costs peak despite the face-to-face proximity of two parties.

This Essay tackles the previously unexplored area of how the Coase Theorem illuminates the jury-selection process. The topic seems particularly suited for application of the Coase Theorem because the lack of negotiation and maximized transaction costs make voir dire distinct from all other phases of the trial. We can gain important insights into the significance and impact of Batson by using this analytical tool.

 

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