Friday, March 4, 2011
Drury Stevenson (South Texas College of Law) has posted Jury Selection and the Coase Theorem to SSRN.
The thesis of this article is that jury selection is unique among the components of the litigation process, in that zero negotiation or bargaining occurs between the parties over the substantive or procedural events that unfold – despite the absence of any prohibitions on such negotiation. This lack of bargaining is particularly striking given that the litigants are in the same room, where they could discuss things face to face. Negotiation, whether over the ultimate outcome or over specific issues within the case, pervades every other segment of litigation, from the pre-filing phase until after the verdict. It is therefore odd that all negotiation abruptly stops when the parties meet in the courtroom for hours or days of jury selection; but this is merely an accident of history in how voir dire evolved. Viewed through the lens of the Coase Theorem, which connects the import of legal rules to the availability (or lack thereof) of negotiation between the parties – the “transaction costs” involved – the zero-negotiation aspect of jury selection gives special significance to the legal rules governing voir dire, as well as the interplay between those rules. Such rules include the number, timing, and sequencing of peremptory strikes, the rules governing Batson challenges, and “for cause” removal of jurors. In other words, the Coase Theorem provides a fresh framework for analyzing our jury selection procedures, and may suggest some modest reforms.