Definition
STRIKING has several distinct legal meanings depending on context:
1. In jury practice: The process by which parties or their counsel remove prospective jurors from the venire — either by exercise of peremptory challenges (strikes without stated cause) or challenges for cause (strikes requiring a stated legal reason). The assembled pool is reduced to the trial jury through this elimination process.
2. In pleading: The removal or cancellation of matter from a pleading, record, or other court document by court order. A court may strike pleadings, or portions thereof, that are scandalous, impertinent, redundant, or otherwise improper.
3. In labor law: Collective work stoppage by employees, typically to compel an employer to meet demands regarding wages, hours, or working conditions. As a verb, "striking" describes the act of participating in such a work stoppage.
4. In criminal sentencing: Colloquially, a prior conviction that counts as a "strike" under habitual offender statutes, typically triggering enhanced penalties upon accumulation of qualifying offenses.
Common Language
Modern common usage (Wiktionary): "Striking" commonly means visually impressive or attention-catching ("a striking appearance"), or the act of hitting or making contact with force.
Historical common usage (Webster's 1913): Webster's defines "striking" as "affecting with strong emotions; surprising; forcible; impressive" and also as the act of hitting or delivering a blow.
The gap between common and legal usage is significant. In law, "striking" almost never refers to a blow or visual impression. Its dominant legal meanings — removing jurors, deleting pleading matter, or participating in a labor work stoppage — are procedural or collective-action concepts entirely absent from the ordinary English sense of the word.
Common Confusion
Striking a juror is routinely conflated with challenging a juror, but the terms are not synonymous. A challenge is the legal mechanism invoked; the strike is the result — the actual removal from the panel. Practitioners use the terms interchangeably in speech, but some courts and procedural rules distinguish them. Researchers working with older materials should also note that "striking" a juror from the panel and "polling" the jury are unrelated procedures, though both involve individual juror examination.
In labor law, a strike and a lockout are frequently confused because both result in a work stoppage. They are legally opposite in origin: a strike is initiated by employees; a lockout is initiated by the employer. The legal protections and consequences differ substantially.
Recognized Forms
/SUBTYPES
In jury practice:
— Peremptory strike: Removal of a prospective juror without stated cause, subject to constitutional limits prohibiting race- or sex-based strikes.
— Strike for cause: Removal based on demonstrated bias, interest, or incapacity, theoretically unlimited in number.
In labor law:
— Economic strike: Work stoppage to pressure concessions on wages, hours, or conditions.
— Unfair labor practice strike: Work stoppage in response to an employer's unlawful conduct; strikers in this category retain stronger reinstatement rights.
— Sympathy strike: Work stoppage in solidarity with workers in a different bargaining unit or at a different employer.
— Wildcat strike: Unauthorized work stoppage not sanctioned by the union.
Why It Matters in Research
The multi-contextual nature of this term is a genuine research trap. A search for "striking" in a historical corpus will return results from jury procedure, pleading practice, and labor law with no obvious differentiation. The labor law meaning is largely a 19th- and 20th-century development; earlier sources using "striking" almost exclusively contemplate jury or pleading contexts. Researchers should filter by subject area before drawing conclusions from aggregate results.
In jury practice, the constitutional dimension of peremptory strikes is a significant post-mid-20th-century development not reflected in older sources. Historical dictionaries and treatises describe peremptory challenges as essentially unreviewable; modern doctrine has substantially curtailed that freedom. Any source predating the late 20th century will be incomplete on this point.
In pleading, "striking" overlaps with "expunging" and "quashing" in historical texts, and the precise procedural distinctions among these remedies varied by court and era. Rapalje & Lawrence's usage reflects common law pleading practice that predates the merger of law and equity; modern civil procedure rules have rationalized but not eliminated the concept.
In labor law, the term carries heavy regulatory freight that developed almost entirely through statute and agency adjudication in the 20th century. Historical sources are of limited value for understanding the modern legal status of strikers.
For researchers tracking the "three strikes" sentencing usage: this meaning is recent, colloquial in origin, and entirely absent from classical legal dictionaries. It has since acquired formal statutory definition in many jurisdictions.
Historical Dictionary Support
Rapalje & Lawrence address "striking" primarily in the jury context, consistent with their common law focus. Their treatment reflects the pre-constitutional-scrutiny era in which peremptory strikes were understood as an unqualified procedural right of each party, exercised without explanation and without appellate review. This framing was doctrinally accurate for its time but is materially incomplete for modern research purposes.
Historical sources generally do not address the labor law meaning with any depth, reflecting the pre-regulatory era in which collective work stoppages were often treated as tortious conspiracies rather than protected activity. The transformation of "striking" from a legally suspect act to a federally protected right occurred through statutory and judicial development that classical dictionaries do not capture.
The pleading usage — striking impertinent or scandalous matter — appears consistently across historical sources and remains largely stable in meaning, though the procedural vehicles have changed.
Jurisdictional Note
In jury practice, the constitutional constraints on race- and sex-based peremptory strikes apply in all U.S. courts, but the number of peremptory strikes available varies by jurisdiction, court level, and case type. In labor law, the right to strike and the protections afforded strikers are primarily governed by federal statute for most private-sector workers, but public-sector striking rights vary dramatically by state, with some states prohibiting them outright.
Encyclopedia Cross-Reference
For the labor law meaning: Strikes, Lockouts, and Economic Weapons — The Law Mind Employment & Labor Law Encyclopedia (employment_92)
For the criminal sentencing meaning: Three Strikes Laws and Habitual Offender Statutes — The Law Mind Criminal Law Encyclopedia (criminal_217)