Roger Williams University DOCS@RWU Law Faculty Scholarship Law Faculty Scholarship 1995 Progressive Lawyering and Lost Traditions Peter Margulies Roger Williams University School of Law Follow this and additional works at: http://docs.rwu.edu/law_fac_fs Part of the Civil Rights and Discrimination Commons, Law and Philosophy Commons, Law and Society Commons, Legal Ethics and Professional Responsibility Commons, and the Legal Profession Commons Recommended Citation Peter Margulies, Progressive Lawyering and Lost Traditions, 73 Tex. L. Rev. 1139, 1184 (1995) This Essay is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in Law Faculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact [email protected]. +(,121/,1( Citation: 73 Tex. L. Rev. 1041 1994-1995 Provided by: Roger Williams University School of Law Library Content downloaded/printed from HeinOnline Fri Nov 18 08:11:03 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Beyond Gender: Peremptory Challenges and the Roles of the Jury Nancy S. Marder* Should any peremptory challengesbe allowed now thatperemptories are no lon- ger permitted on the basis ofrace or gender? ProfessorNancy Marderargues that the answer should depend on whetherperemptory challenges help orhinder thejury in the performance of its various roles. One of the jury's roles is to make public value de- cisions;peremptories are harmful to thisfunction in that they exclude from the jury a range of values andperspectives so that different communities may no longer believe that the jury's verdict reflects their values. Another function of the jury is to render accurate verdicts; peremptories may impede accuracy by systematically eliminating jurors holding a range of views who might have challengederroneous ideas. The jury also must appearto be afair,andfairly constituted, decisionmaker,and yetperemptor- ies compromise the jury'sfairness by suggesting that the composition of the jury can be manipulated. Finally, the jury plays a criticalrole in allowing citizens in a democ- racy to participatein their own self-governance;peremptories deny access to this civic duty and education. There are, however, severaljustifications for peremptory challenges. One justifi- cation is thatperemptories give parties control overjury selection; anotheris thatjury selection should be left to the adversarialprocess ratherthan to thejudge; andfinally, peremptoriesare part of our tradition,and there is reluctanceto departfrom tradition. What underlies the debate, however, are competing visions of the jury. One vision of the jury is as a public institution;another is as a protector ofparties' rights. The Su- preme Court has taken a view of the jury as a public institution in its Fourteenth Amendment jury cases and as a protectorofparties' rightsin its Sixth Amendment jury cases. ProfessorMarder also arguesfor eliminatingperemptories by revisiting the * Assistant Professor of Law, University of Southern California Law Center. B.A. 1980, Yale University; M. Phil. 1982, Cambridge University; J.D. 1987, Yale University. My research was sup- ported by grants from the Conrad N. Hilton Endowed Fund for the Improvement of Justice at the U.S.C. Law Center and from Yale's Postdoctoral Fellowship. I am particularly grateful for the readings, comments, and guidance provided by Scott Altman, Erwin Chemerinsky, Richard Craswell, Dennis Curtis, Alon Harel, Martin Levine, Edward McCaffery, Daniel Ortiz, Judith Resnik, Elyn Saks, Michael Shapiro, Larry Simon, Matthew Spitzer, Charles Weisselberg, Catharine Wells, and the U.S.C. Faculty Workshop since my arrival at U.S.C. and for conversations with Akhil Amar, Owen Fiss, Joseph Goldstein, Burke Marshall, Vicki Schultz, and Reva Siegel during my time at Yale. I have also benefited from correspondencewith Richard Lempert, Martha Minow, Steven Penrod, Neil Vidmar, and Stephen Yeazell, and from conversations with judges, including Justice John Paul Stevens, Judge William A. Norris, and Judge Leonard B. Sand (all of whom I was privileged to clerk for), as well as with practitioners, including Assistant U.S. Attorneys Steven Fishbeim and Lewis Liman. I have had research assistance from Tad Egawa and Kelly Fitzgerald, research support from the library staffs at the U.S.C. and U.S. Supreme Court law libraries, and moral support, at every stage of the project, from Jeremy David Eden. 1041 1042 Texas Law Review [Vol. 73:1041 Sixh Amendment with insights about the jury as a public institution gainedfrom the FourteenthAmendment. I. Introduction ............................... 1043 II. Current State of the Law ....................... 1049 Ill. Why Peremptories Harm the Jury in the Fulfillment of Its Roles ..................................... 1052 A. The Jury's Role in ArticulatingPublic Values ........ 1052 1. FindingPublic Values in Jury Verdicts ......... 1052 2. PeremptoriesExclude Perspectives ........... 1063 B. Jury's Role in Factftnding .................... 1066 1. Jury as Facifinder ...................... 1066 2. PeremptoriesMay Harm Accuracy ............ 1070 C. The Jury's Role in Appearing as a FairDecisionmaker .. 1074 1. PeremptoriesTake Place in the Public Eye ...... 1075 2. PeremptoriesPerpetuate Stereotypes and Discrimination ........................ 1077 D. The Jury's Role in Educating the Citizenry ......... 1083 1. PeremptoriesDeny Access to Civic Duty ......... 1083 2. PeremptoriesConvey a Harmful Message to Those Who Do Serve ........................... 1084 IV. Possible Arguments for Retaining Peremptory Challenges . 1086 A. The Parties' "Right" to Control the Jury ........... 1086 B. The Correction of JudicialError ................ 1088 C. The Loss of Tradition ....................... 1090 V. What Is at Stake ............................. 1092 A. Competing Visions ........................ 1092 B. Why the Balance Should Shift .................. 1095 1. Who Can Now Serve on Juries .............. 1096 2. PoliticalSymbolism of Jury Service ........... 1098 VI. Re-Imagining Jury Selection ..................... 1099 A. Assumptions ............................ 1099 B. A Range of Solutions ....................... 1103 C. The Revised For-Cause Challenge as the PreferredMethod 1107 1. How the Revised For-Cause Challenge Differsfrom the Modified Peremptory .................... 1111 1995] Peremptory Challenges and the Roles of the Jury 1043 2. Revised For-Cause Challenge Is Not Wthout Its Shortcomings ......................... 1112 3. Revsed For-Cause Challenge Will Foster Public Dialogue ........................... 1113 VII. A Legal Basis for the Elimination of the Peremptory ... 1114 A. CurrentLegal Approach to Peremptory Challenges .... 1114 1. The Strengths of Batson and the Fourteenth Amendment .......................... 1115 2. The Limitations of Batson and the Fourteenth Amendment .......................... 1117 B. The Intersection of the Sixth and Fourteenth Amendments 1125 C. Revisiting the Sixth Amendment ................ 1128 1. Revising Notions of Impartiality ............. 1128 2. Limitations of Returning to the Sixth Amendment ... 1134 VIII. Conclusion .............................. 1136 When any large and identifiable segment of the community is ex- cluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected im- portance in any case that may be presented. -Peters v. Kitf [O]nly by banning peremptories entirely can... discrimination be ended. -Batson V. Kentucky2 I. Introduction Justice Marshall's trenchant observation about the harm caused to the jury by the systematic exclusion of groups of jurors from jury service, though made over twenty years ago in Peters v. Kiff, a case pertaining to racially segregated venire lists, remains both timely and telling today. When a group is systematically excluded from jury service, the jury is deprived of a range of experiences, backgrounds, and perspectives that 1. 407 U.S. 493, 503-04 (1972) (Marshall, I., plurality opinion) (footnote omitted). 2. 476 U.S. 79, 108 (1986) (Marshall, J., concurring). 1044 Texas Law Review [Vol. 73:1041 would enhance its deliberations. The loss to the jury arises not because jurors, by virtue of their group identity, will vote a certain way, but rather because jurors, by virtue of their various life experiences, bring to the jury room different values and approaches to deliberations that are unpredictable and, in Justice Marshall's words, even "unknowable." When groups in the community are systematically excluded from jury service, whether by nar- rowly drawn venire lists, automatic exemptions, or peremptory challenges, the result is the same: a jury that no longer has the opportunity of re- flecting the diversity of the community. This does not mean that every petit jury must mirror the community, but only that no group should be singled out for exclusion from the