Batson Revisited - Batson Symposium

Nancy S. Marder

Illinois Institute of Technology - Chicago-Kent College of Law

October 22, 2012

97 Iowa Law Review 1585 (2012)
Chicago-Kent College of Law Research Paper No. 2013-03

The twenty-fifth anniversary of Batson v. Kentucky provides an important moment to reflect on Batson and to consider how this seminal case and its progeny have affected the use and abuse of peremptory challenges. I had initially welcomed the U.S. Supreme Court’s approach to peremptory challenges in Batson back in 1986. Although Batson was a compromise — preserving peremptories while seeking to address discriminatory peremptories — it had the noble goal of trying to eliminate discrimination during jury selection. I also embraced its expansion over the years. The logic of Batson was inexorable: just as prosecutors should not be permitted to use peremptories to eliminate African Americans as jurors, so too, defense attorneys and civil parties should be similarly constrained. Just as African Americans should not be subjected to discriminatory peremptories, so too, members of any race, ethnicity, or gender should not be subjected to discriminatory peremptories. However, over time I developed serious doubts that Batson and its progeny could achieve their central goal of eliminating discrimination during jury selection. Now, with twenty-five years of experience, we can look back and see just how ineffective Batson has been. This anniversary is an appropriate juncture to renew the call for the elimination of the peremptory challenge, echoing Justice Thurgood Marshall’s recommendation in his Batson concurrence twenty-five years ago.

Number of Pages in PDF File: 28

Keywords: Batson, peremptory challenges, discriminatory, discrimination, jury, race, ethnicity, gender

JEL Classification: K10, K19, K30, K39, K40

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Date posted: October 22, 2012 ; Last revised: January 5, 2013

Suggested Citation

Marder, Nancy S., Batson Revisited - Batson Symposium (October 22, 2012). 97 Iowa Law Review 1585 (2012); Chicago-Kent College of Law Research Paper No. 2013-03. Available at SSRN: http://ssrn.com/abstract=2165561

Contact Information

Nancy S. Marder (Contact Author)
Illinois Institute of Technology - Chicago-Kent College of Law ( email )
565 W. Adams St.
Chicago, IL 60661-3691
United States

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