Reports of Batson's Death Have Been Greatly Exaggerated: How the Batson Doctrine Enforces a Normative Framework of Legal Ethics

Abstract:     
I aim to explain how the Batson procedure enforces a normative framework of legal ethics, a theory which I hope will be of use to both criminal law professors and scholars of legal ethics. Despite many recent prudential attacks against the Batson procedure and the peremptory challenge, I contend that Batson has a largely unarticulated ethical component, one that invokes a lawyer's professional responsibility. Accordingly, my use of legal ethics as a lens through which to interpret Batson sheds new light on the doctrine. I argue that by fostering a non-discrimination norm as part of the norm of professionalization, Batson both improves the actions of lawyer and judges during jury selection while at the same time constructing and compelling an aspirational code of ethics.

The article has several goals. First, I propose a legal ethics theory of Batson, as the Batson doctrine is a vehicle through which the legal system achieves a major aspiration of professionally responsible behavior. Second, I provide a measured look at the anxiety surrounding the Batson procedure and the peremptory challenge, starting with its most recent history, and explain how my theory of legal ethics can resolve many of the Batson grievances. Finally, I will examine why Batson is so important and look at some of the additional implications of my legal ethics approach. I conclude that Batson's framework of legal ethics assists in the goal of furthering the moral integrity of the legal profession.

Keywords: legal ethics, legal profession, professional responsibility, criminal law, criminal procedure, Batson, norms, professionalization, discrimination

Accepted Paper Series