Deselecting Biased Juries

49 Pages Posted: 20 Jul 2014 Last revised: 11 Aug 2015

See all articles by Scott Howe

Scott Howe

Chapman University, The Dale E. Fowler School of Law

Date Written: July 18, 2014


Critics of peremptory-challenge systems commonly contend that they inevitably inflict inequality harm on many excused persons and should be abolished. Ironically, the Supreme Court fueled this argument with its decision in Batson v. Kentucky, 476 U.S. 79 (1986), by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach that preserved peremptories. But the article shows that something other than inequality harm to excused persons is actually the central problem. The Court in the Batson cases only obliquely confronted it, because constitutional rulings cannot appropriately resolve it. That problem is the harm to disadvantaged litigants when their opponents use peremptories to secure a one-sided jury. The problem can arise often -- whenever a venire is slanted in favor of one of the parties. The advantaged litigant can use peremptories to seat a large group of favorable jurors regardless of how the disadvantaged litigant exercises its peremptories. However, there is a remedy. Peremptory systems reflect the idea that parties acting in their self-interests can help pursue group neutrality on a jury. Similarly, by conferring on litigants a right to stop peremptories at any time, states can enlist them to determine when opposing parties are using peremptories to promote group bias.

Suggested Citation

Howe, Scott, Deselecting Biased Juries (July 18, 2014). 2015 Utah Law Review 289; Chapman University, Fowler Law Research Paper No. 14-8. Available at SSRN:

Scott Howe (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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