August 15, 2012
Charlow on Batson 'Blame'
Robin Charlow (Hofstra) has posted "Batson 'Blame' and its Implications for Equal Protection" on SSRN. Here is the abstract:
Twenty-five years ago Batson v. Kentucky held that equal protection is violated when attorneys exercise racially discriminatory peremptory jury challenges and supply pretextual explanations for their strikes. Findings of Batson violations are tantamount to rulings that attorneys have discriminated and lied. Not only do Batson findings potentially subject violators to sanction under standards of professional ethics, but they also amount to imputations of personal fault or “blame” for socially undesirable conduct. This article explores, from both practical and theoretical perspectives, the problem of the attribution of personal fault to attorneys that is inherent in a finding of a Batson violation. On the practical side, although the blaming effect seems inevitable, it may prove counterproductive to Batson‘s goal of eliminating racial discrimination in jury selection. In terms of constitutional theory, Batson enforces the Constitution’s equal protection guarantee, and blame appears to be an inexorable consequence of either of the two dominant theories of equal protection analysis: “anticlassification” theory, used by the Supreme Court’s majority, and “antisubordination” theory, urged by Supreme Court dissenters and many academics. Assuming blame is unavoidable under either current theory, and yet that it interferes with rooting out discrimination, this Essay explores a third possible alternative view of equal protection — “antibalkanization” — which might resolve the problem of discriminatory peremptory strikes without necessarily implicating personal blame.
The Iowa Law Review has accepted the paper for publication.