Lee Goldman, Toward a Colorblind Jury Selection Process: Applying the Batson Function to Peremptory Challenges in Civil Trials, 31 Santa Clara L. Rev. 147 (1990)
This article does not suggest that any one proposal for
reform is the "correct" response to discrimination in the
peremptory challenge process. The "optimal" solution de-
pends on too many unquantifiable variables. By defining a "Batson function"4 that incorporates the relevant variables and analyzing each proposal's effect on that function, this article highlights the trade-offs of each proposal and thereby encourages more informed and reasoned decision making. At a minimum, however, the analysis demonstrates that Batson should be extended to limit a civil litigant's ability to discriminate in the jury selection process.
Part Two of this article explains the nature and opera-
tion of the peremptory challenge. Part Three provides a brief description of the leading Supreme Court precedents and their lower court progeny. Part Four argues that Batson should apply to civil litigation. This section first demonstrates that case law and policy dictate that a civil litigant's discriminatory peremptory challenge be deemed state action. Then, through analysis with the Batson function, it concludes that
the many differences between civil and criminal trials do not justify disparate treatment of discriminatory peremptory challenges in civil and criminal proceedings. Finally, Part Five suggests and analyzes the merits and shortcomings of several legislative proposals that may eradicate discrimination in the juror selection process more fully than Batson.