Interesting piece. Here is the abstract of Jury Selection and the Coase Theorem.
The thesis of this article is that jury selection is unique among the components of the litigation process, in that zero negotiation or bargaining occurs between the parties over the substantive or procedural events that unfold – despite the absence of any prohibitions on such negotiation. This lack of bargaining is particularly striking given that the litigants are in the same room, where they could discuss things face to face. Negotiation, whether over the ultimate outcome or over specific issues within the case, pervades every other segment of litigation, from the pre-filing phase until after the verdict. It is therefore odd that all negotiation abruptly stops when the parties meet in the courtroom for hours or days of jury selection; but this is merely an accident of history in how voir dire evolved. Viewed through the lens of the Coase Theorem, which connects the import of legal rules to the availability (or lack thereof) of negotiation between the parties – the “transaction costs” involved – the zero-negotiation aspect of jury selection gives special significance to the legal rules governing voir dire, as well as the interplay between those rules. Such rules include the number, timing, and sequencing of peremptory strikes, the rules governing Batson challenges, and “for cause” removal of jurors. In other words, the Coase Theorem provides a fresh framework for analyzing our jury selection procedures, and may suggest some modest reforms.
Definitely seems like game theory may come into play here as well. And from the paper:
A central observation from this Part will be that the peremptory strike system actually maximizes uncertainty about the jury, rather than neutrality or fairness, by allowing lawyers on each side to de- select jurors who seem favorable to their opponent. In other words, we merely remove those whose biases seem most evident. Given the relationship between predictability and settlement, this means the peremptory strike system has a temporary chilling effect on settlements immediately following the voir dire segment of the litigation.
Jury selection. The Second Amendment. Is there nothing the Coase Theorem can’t do?