Batson 'Blame' and Its Implications for Equal Protection Analysis

23 Pages Posted: 14 Aug 2012

See all articles by Robin Charlow

Robin Charlow

Hofstra University School of Law

Date Written: 2012


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.

Keywords: equal protection, Batson, peremptory challenges, race discrimination, sex discrimination, blame, anticlassification, antisubordination, antibalkanization

Suggested Citation

Charlow, Robin, Batson 'Blame' and Its Implications for Equal Protection Analysis (2012). Iowa Law Review, Vol. 97, No. 5, 2012; Hofstra Univ. Legal Studies Research Paper No. 12-18. Available at SSRN:

Robin Charlow (Contact Author)

Hofstra University School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-5166 (Phone)
516-463-4800 (Fax)


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