A heightened focus on the civil protection order remedy is warranted because of its potential to increase the domestic violence survivor's safety and autonomy, unlike recent mandatory criminal policies that give control over arrest and prosecution decisions to the state without regard to a survivor's belief about how the action will affect her safety. The civil protection order is also the remedy that survivors most often choose to address the violence. An exploration of the individual stages in the Stages of Change Model, however, reveals deficiencies in the protection order remedy and suggests procedural rule reforms, substantive law changes, and improvements to legal and advocacy interventions. For example, while current procedural rules and judicial practices penalize petitioners for seeking the court's assistance multiple times, I propose rule changes that would allow petitioners to access the legal system designed to protect them.

The Article also offers economic and safety justifications for advocacy support across the stages in response to the current system's failure to address survivors' safety planning needs in the preparation stage and the emotional and tangible resources they need to sustain an end to violence in the maintenance stage. Among other legal reforms, I identify substantive law changes necessary to the maintenance stage, such as making monetary relief statutorily available in protection orders to enable low-income or economically dependent survivors to end violent relationships. The advancements inspired by using the lens of the Stages of Change Model would enable civil protection orders to better respond to survivors' actual experiences and needs and encourage survivors' progression through the stages to achieve freedom from violence.

Collins and Skover describe and examine Dean Post’s dichotomy between the realm of “democratic legitimation,” where the First Amendment should offer its strongest protections, and the realm of “democratic competence,” where the First Amendment should yield to the findings of knowledgeable experts. Questioning the theoretical premises of Dean Post’s book, they argue that a “harm principle” may better explain much of the First Amendment doctrine that Post attempts to reconcile with his dichotomy. Moreover, they challenge Post’s thesis at a more operational level: if his theory is to have any meaningful staying power, it cannot be oblivious to the obvious – that the academic centers of knowledge are increasingly commercialized.

Colleges and universities, once seen as bastions of learning serving the common good, have increasingly transformed into citadels of industry serving the cause of private profit. In this commercialized environment, medical schools produce bio-medical studies unduly influenced by industry; brilliant researchers earn lucrative consulting fees; and distinguished professors take title to industry-endowed chairs. In the face of this, ironically Robert Post’s First Amendment theory may unwittingly protect the research produced by for-profit experts, even though pecuniary influences corrupt the integrity of the centers of knowledge.

This Article proceeds in three parts. Part I describes the Supreme Court framework within which the lower federal courts operate when they evaluate the constitutionality of peremptory strikes of potential jurors. The three-step test first articulated in Batson requires (1) a prima facie showing of discrimination; (2) a neutral justification for the strike; and (3) a determination by the trial judge of whether purposeful discrimination motivated the strike. In describing the Supreme Court jurisprudence, the Article identifies four issues that are crucial to disparate impact analysis in the Batson context: the role of the trial judge; the requirement that justifications be connected to the facts of the case; the comparability principle, which requires that similarly-situated jurors be treated in similar fashion; and the question of whose rights the Batson doctrine protects.

Part II introduces the two sets of cases that I examine in this Article, and that exhibit a striking disparity in outcome. The first set consists of the thirty-six cases in which lower federal courts addressed disparate impact arguments relating to the strikes of jurors of color and/or female jurors. In all of those cases, the claims of purposeful discrimination were ultimately unsuccessful. The second set consists of the three cases in which courts addressed disparate impact arguments relating to the strikes of white jurors. In all of those cases, the claims of purposeful discrimination were ultimately successful.

In Part III, the Article demonstrates that this disparity in outcome correlates with a disparity in approach to four issues that I identify as crucial to disparate impact analysis. On each issue, the courts addressing the strikes of white jurors provide a depth of analysis that is absent from the cases involving jurors of color and/or female jurors. On each issue, the courts addressing the strikes of white jurors display a boldness in addressing the challenges and opportunities created by Batson that is absent from the cases involving jurors of color and/or female jurors. The Article concludes by urging that this depth of analysis and this boldness be applied uniformly to disparate impact claims in the Batson context. Until these disparities are corrected, it would be naïve to call the peremptory system fair, and it would be premature to call for its abandonment.

This Article conducts the first comparison of proposals that the IAT be used to address jury bias. They fall into two groups. The first group would use the IAT to "screen" potential jurors for implicit bias; the second group would use the IAT to educate jurors about implicit bias. These proposals merit deeper consideration. Implicit bias is pervasive, and affects crucial juror functions: evaluation of evidence, recall of facts, and judgment of guilt. Juries are generally told nothing about implicit bias. The judiciary has expressed concern about implicit juror bias, and sought help from the academy in addressing the problem.

This Article provides what these two groups of proposals lack: critique and context. It shows that using the IAT to screen jurors is misguided. However, the Article contends that the educational project has merit because implicit bias can be countered through knowledge of its existence and motivation to address it. To refine the project, this Article identifies two vital issues that distinguish the proposals: when jurors should learn about implicit bias, and how they should learn about it.

On the issue of when, this Article argues that the education should begin while the jurors are still being oriented. Orientation is not only universal, but, as research into "priming" and 'framing" suggests, a crucial period for the forming of first impressions. On the issue of how, this Article argues that those proposals that would include the jurors taking an 1AT are superior to those that would simply instruct jurors on what the IAT shows. In an area fraught with denial, mere instruction would likely be dismissed as irrelevant. This Article uses pedagogical theory to show that experiential learning about bias is more likely to be effective.

Finally, this Article brings when and how together, proposing a model that would include the use of the IAT as an experiential learning tool during orientation. This model would harness the civic energy of jurors to an educational purpose, rather than letting it morph into boredom; by putting jurors in an active mindset, it would enhance their satisfaction with the process, and their ability to perform optimally. As for potential jurors who are never selected, their participation would honor the long-standing educational function of jury service.