Law Commons^™

Solving Batson, Tania Tetlow

Tania Tetlow

The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Kentucky. It could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant’s Sixth Amendment right to an “impartial jury” drawn from a fair cross-section of the community. By choosing Equal Protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system and instead focused on protecting potential jurors. The Court thus built fatal error into the Batson rule, a …

Cumulative Jurisprudence And Hate Speech: Sexual Orientation And Analogies To Disability, Age And Obesity, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex or religion, etc. They often omit express reference to sexual minorities.

Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association.

Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. In this article, that approach is challenged. …