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Unpublished Paper
What Hurricane Katrina Taught Me About Fair Cross-Section Claims
ExpressO (2007)
  • Robin E. Schulberg
Among the aftereffects of Hurricane Katrina was depressed representation of African Americans on federal jury venires. The Federal Public Defender for the Eastern District of Louisiana challenged the venires under the Sixth Amendment right to a jury drawn from a fair cross-section of the community. These challenges lost but what stood out in the litigation process was the paucity of authority in our favor. This article attributes the lack of success that has plagued fair cross-section claims to the tendency of lower courts to conflate them with equal protection claims. While equal protection claims require proof of discriminatory intent, fair cross-section claims do not. Nevertheless, the group-specific nature of the harm leads courts to view fair cross-section claims through an equal protection lens, and consequently, to require fault, if not invidious intent. This article contends that the disparate impact model for Title VII employment discrimination claims developed in Griggs v. Duke Power Co. would correct this error by shifting the focus from blameworthiness to results and by foreclosing “blame the juror” excuses for disproportionate representation.
  • fair cross-section
Publication Date
February, 2007
Citation Information
Robin E. Schulberg. "What Hurricane Katrina Taught Me About Fair Cross-Section Claims" ExpressO (2007)
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