Excerpted From: Anna Offit, Antidiscrimination Law Through a Sociolegal Lens, 73 Alabama Law Review 753 (2022) (74 Footnotes) (Full Document)

AnnaOffitThis Symposium invites reflection on whether the Anthropology of Law has “any space left for the content of rules” at a time when the concerns of legal anthropologists have largely shifted to processes, materials, and practices that are “adjacent to law.” Taking the jury system as an illustrative case, this Essay advocates for the relevance and value of the anthropological study of rules, their content, and their effects. Looking in particular at antidiscrimination rules derived from Batson v. Kentucky, decided in 1986, it argues that a sociolegal, ethnographic approach to how lawyers perpetuate discrimination in jury selection offers insight into everyday legal practice that is critical to enacting impactful jury reform--that is, to making better rules.

Part I of this Essay provides background on the Batson doctrine with attention to its misguided aspiration to race neutrality and emphasis on racial animus as the cause of disparate empanelment. Part II shows how ethnography leads to a more sophisticated, empirically grounded understanding of these issues, casting new light on racial and other forms of exclusion, including exclusion based on socioeconomic status and previous contact with the legal system. Part III makes the case that sociolegal approaches to jury selection are invaluable for illuminating the effects of, and reformative pathways for, antidiscrimination law.

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Improving antidiscrimination law necessitates a sociolegal perspective attuned to everyday, real-time experience and practice in the courtroom. The ethnographic study of voir dire provides such a perspective, illuminating the actual processes by which legal actors both knowingly and tacitly contribute to the disproportionate exclusion of certain groups from juries. We learn, for instance, that peremptory strikes are only part of the story. Cause challenges too--and the flawed inferences of judges--must be closely examined and targeted for reform. We find also that Batson amplifies the presence of race in the minds of legal actors as it seeks to nullify its effects. In the process, we may overlook other problematic but permitted bases of exclusion.

In short, a sociolegal view refuses to see the legal process as bounded and separate from society and its inequities. Disparate jury empanelment emerges at the intersection of an unequal society and an adversarial legal system that encourages each side to seek advantages where it can. Those who are poor, associate with social movements, have been harassed by police, or are skeptical of the government are all part of the country's diverse communities, yet to many prosecutors, they are merely “bad jurors.” They are also, in general, more likely to be people of color. Above all, a sociolegal perspective shows that jury reform efforts that would enhance the inclusivity of American juries must take seriously the entwinement of race, sex, and class in analyses of jury exclusion--or fail.

Assistant Professor of Law, SMU Dedman School of Law.