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


In this article, 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, using legal ethics as a lens through which to interpret Batson sheds new light on the doctrine. Batson’s ethical imperative affects the norms of the legal profession itself. 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.

This 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.


Civil Rights and Discrimination | Criminal Law | Criminal Procedure | Jurisprudence | Law and Society | Legal Ethics and Professional Responsibility | Legal Profession

Date of this Version

March 2005