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56 Wm. & Mary L. Rev. 1859 (2014-2015)
Solving Batson

handle is hein.journals/wmlr56 and id is 1915 raw text is: SOLVING BATSON TANIA TETLOW* ABSTRACT The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Ken- tucky. The Court could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant's Sixth Amendment right to an impartial jury drawn from a fair cross-section of the community. By choos- ing the equal protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system, and instead focused on protecting potential jurors. In doing so, the Court built a fatal error into the Batson rule, a doctrine which has failed to meaningfully reform jury selection. This Article proposes to revisit that fork in the road, and for the first time, to describe how a Sixth Amendment test would function far better in comparison to the present rule. Unlike Batson, a Sixth Amendment test would focus on the impact of jury selection on diversity instead of attempting to divine the subjective intent of lawyers. The test would function as follows: If peremptory challenges skewed the diversity of suspect classifications on the jury, then a lawyer would need to justify his strikes with reference to specific and individualized concerns about each juror's impartiality. The judge would then balance the strength of the proffered reason for the strike against the value of the lost diversity. Although this remains a * Associate Provost for International Affairs, Felder-Fayard Associate Professor, Tulane Law School; J.D., magna cum laude, Harvard Law School; and former Assistant United States Attorney. Special thanks to Brandon Garrett, Chris Slobogin, Jeffrey Bellin, Andrea Armstrong, Pamela Metzger, Janet Hoeffel, Anna Van Cleave, Adam Feibelman, Keith Werhan, and Claire Dickerson for their helpful commentary, and to Alexandra Fleszar for her excellent and tireless research assistance. 1859

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