The first section of this Article will introduce the dynamics of the relationship between two competing visions of impartiality as it has played out in the opinions of federal and state courts, including secondary sources. I call the two approaches "modernist" and "post- modernist" and examine the arguments that have sought to broaden the scope of the fair cross-section requirement in the name of the latter view, a perspective similar to that motivating the district judge in the Crown Heights case. Part II identifies the Supreme Court's opening gestures in the direction of the "post-modernist" model. Part III carries the development forward, presenting the problems and tensions that have resulted in an uneasy and pragmatic accommodation be- tween the older modernist model and its would-be post-modernist successor. This accommodation can be seen most plainly in the interplay of opposing theoretical and practical considerations that inform the jury selection process at two discrete points in time: an early (venire) and late stage (peremptory challenges) of the process. Parts IV and V will pause to examine one particular manifestation of what I designate the post-modern vision of jury selection; one ironically with roots in an ancient historical tradition that attempts to secure more solid theoretical foundations for community participation in juries. These efforts certainly do not lack good intentions. Moreover, the post-modernist critique provides some important insights into the inadequacies of the pure modernist paradigm. Still, it is my conclusion that moving in the direction of a more overtly post-modern model would be ill founded and could ultimately prove destructive, rather than restorative, for the institution of the jury and for civil society in general.
Peter J. Richards, The Discreet Charm of the Mixed Jury: The Epistemology of Jury Selection and The Perils of Post-Modernism, 26 SEATTLE U. L. REV. 445 (2003).