This article reviews current access to civil justice and race, social class, and gender inequality. Three classes of mechanisms through which inequality may be reproduced or exacerbated emerge: the unequal distribution of resources and costs, groups' distinct subjective orientations to law or to their experiences, and differential institutionalization of group or individual interests.
This article provides the factual background to Hansberry v. Lee, a famous class action case. Tracing the lawsuit as it progressed toward the Supreme Court, the author notes that the Court could have invalidated the Hansberry judgment for several reasons, including fraud and the constitutional validity of the restrictive covenants. Surprisingly, however, the Supreme Court ignored these flaws, and the racism behind them, and instead focused on the due process considerations involved in binding an individual to a class action judgment. The author concludes that Hansberry's importance may be as a substantive decision leading directly to Shelley v. Kraemer.
This article discusses whether the Alternative Dispute Resolution (ADR) processes provided for in the federal courts are likely to be as biased against minorities as other ADR processes, which have been the subject of existing literature. It concludes that most of the federal court-annexed ADR programs are more formal than community-based and other ADR programs have more built-in protections against minority bias. Further, this article suggests improvements and practices, which reduce the likelihood of bias against minorities in the ADR processes.
This article considers an expansion of the Batson principle to arbitration proceedings. Specifically, this article considers whether or not it should be permissible for a party to a court-ordered or contractual arbitration to exercise a peremptory strike against a potential arbitrator on the basis of the potential arbitrator's race, sex or other characteristic which would not be a permissible basis for such a strike of a potential juror in a public court proceeding.
Fourteen law school professors collaborated to write Civil Procedure Stories, which provides deeper understanding of the great civil procedure cases. Each professor wrote a short chapter on one of the cases, retelling the case in his or her own voice and by his or her own method.
This article focuses on a CRT approach of examining federal pleading as construed by the Supreme Court in Conley v. Gibson and its progeny case, Bell Atlantic Corp. v. Twombly. The author asks what would federal pleading look like through the racial sensibilities of African Americans? Part I provides a brief summary of the law of federal pleading and Part II discusses the operational tenets of CRT. Part III applies CRT to federal pleading.
This book aims to clarify the theory in Critical Race Theory, Critical Feminist Theory, and the growing number of "outsider" stances against the received tradition. The author challenges the widely held view that criticalists are a monolithic group of legal scholars who present an imminent danger to American law.
This article illustrates how critical race empiricism can be harnessed to evaluate procedural rules by examining the U.S. Supreme Court's recent shift in pleading standards from notice pleading under Conley v. Gibson to plausibility pleading in Ashcroft v. Iqbal. The author first discusses why social psychology offers a fertile source for both theory and methods to explore CRT. Then, he compares and contrasts how White and Black judges apply both the old and new pleading standards. Next, he conducted an enhanced empirical legal study which supports the conclusion that the new pleading standard serves as a context for aversive racism, implicit bias, and lay theories of racism to operate against stereotyped-group members who assert claims of discrimination.
This essay traces the story of the Birmingham desegregation campaign. In the first of the Birmingham cases-the Walker case-the Court upheld the authority of the local segregationist courts. Dr. King, along with Dr. Walker and Rev. Shuttlesworth, were ordered to return to the Birmingham jail and to serve time there for contempt of court. In the second-the Shuttlesworth case-the Court rejected the authority of the local segregationist city commission. In tracing this history, the author aims to "commit ourselves to the preservation of our civil rights history, [so] we [can] hope to commit ourselves to a civil rights future."
This article attempts to place the Walker decision within the context of its social significance. This article attempts to correct that gap in legal education where students only know the Walker case on abstract legal principles, and in the process to highlight the role that lawyers, and the legal system, played in the oppression of African Americans during the mid-twentieth century. It is written with the hope that it will serve as an introduction or supplement to the study of the Walker decision.
This essay aims to contrast two legal retellings of the same event: a set of demonstrations sponsored by the Southern Christian Leadership Conference in Birmingham, Alabama in 1963 that led to the arrest and incarceration of MLK, Jr. One is the Supreme Court majority opinion in Walker v. City of Birmingham, sustaining King's conviction; the other, King's own defense of his actions in his Letter from Birmingham Jail. The author wishes to show how the self-same event entails radically different legal consequences when it appears in different narratives by focusing on aspects usually thought of as literary or "rhetorical." The criticisms offered of both the Court opinion and King's Letter are criticisms of narrative vision as much as logical coherence.
This article explores the origins of the FRCP and "the shift away from court access [and] access to justice." Part I of the Article briefly describes the evolution, justifications, and critiques of rule trans-substantivity. Part II explains how the language, interpretation, and application of the Rules have undercut court entry and merit-based decisions for those alleging employment discrimination and civil rights violations. Part III contends that the legitimacy of transsubstantivity is in jeopardy and proposes some ways that the bench, bar, and public may reconcile a trans-substantive process system with a robust democracy.
This review explores the story of an undocumented Haitian immigrant--her civil rights lawyers and the judges who did not believe them. The author aims to extend Gross's historical scrutiny of identity trials to contemporary civil rights debates over the construction of race in law and litigation.
In this YouTube video, Professor Darrell Miller leads a panel discussion with Suja Thomas, Professor of Law at the University of Illinois College of Law and Brooke Coleman, Professor of Law at Seattle University School of Law. They discuss racial representation on the Civil Rules Advisory Committee (the drafters of the rules of civil procedure) as well as the ways in which the rules of civil procedure, such as summary judgment, limit the effectiveness of civil rights litigation as a remedy for discrimination. This event is part of the series on Race and the 1L Curriculum.
This article first outlines the pressing societal need for collective litigation to ensure that adequate and available legal remedies remain for under-represented groups, such as low-wage workers. It also compares the procedural mechanisms for bringing aggregate litigation-Rule 23 class actions and § 216(b) collective actions-and examines how Rule 68 has both intended and unintended consequences when used by defendants to battle collective actions. Lastly, the article identifies how federal courts have treated Rule 68 offers of judgment inconsistently in the class action context compared to the § 216(b) collective action context.
This article offers concrete suggestions on how to integrate issue of race into Civil Procedure. The author recommends a discussion format rather than lectures, and Part II offers examples from a variety of civil procedure cases and subjects to show how a teacher, using the Socratic method and a traditional casebook, can incorporate such issues successfully.
This note surveys discovery rules, specifically discussing how Rule 412 plays a reactive, rather than proactive role in the discovery process, and the impact of that role on a sexual harassment plaintiff during the discovery process. Part I provides a brief overview of a sexual harassment claim. Part II will examine the struggle between the policies underlying Rule 26 with the Rule 412 presumption aiming to protect a sexual harassment plaintiff's right to privacy. Part III examines compelled mental examinations and their underlying worth in determining damages. Part IV will focus on the relatively new issues that arise with electronic discovery and specifically how that will come to impact a plaintiff's ability to bring forth a sexual harassment suit.
This article describes the rise of child custody mediation, focusing on the version currently required by California law. Part II describes the promises of mediation: reliance on context; the inclusion of emotions along with rational self-interest; and the introduction of self-determination. Part III discusses the particular dangers to women of mandatory mediation's requirement of direct engagement with their adversary. Part IV suggests alternatives to a system of mandatory mediation. While the focus of this discussion is mandatory mediation, many of the observations in the article also have implications for voluntary mediation.
This article argues that pandisability theory serves as an analogue to earlier notions of panethnicity and provides an equally compelling heuristic for determining class identity. It shows that pandisability undergirds ADA public service and public accommodation class actions where individualized remedy assessments have been accepted as part of group-based challenges to social exclusion. The article also demonstrates that this broader vision of collective action is consistent with the history underlying the class action device. Taking advantage of the relatively blank slate of writing on group-based disability discrimination, it offers an intrepid vision of the ADA's potential for transforming workplace environments.
This essay offers a couple of well-known examples of the influence of social stereotypes on individuals' choices, behavior, and outcomes in economic transactions. It then provides a more extended examination of the effect of social identity on economic transactions by drawing upon a recent, growing, and fascinating area of social psychological research into the effect of gender on negotiations. The findings of this research are both disturbing and promising, and concludes that, sometimes, common economic transactions take place in different places for different people.
This note casts light upon the frequent attacks deployed against women serving as named plaintiffs in sex discrimination class actions under Title VII of the Civil Rights Act of 1964. This note will tell the anecdotal stories gleaned from interviews with prominent plaintiffs' class counsel and a named plaintiff. Hopefully, exposing abusive practices will lead to greater protections for named plaintiffs in sex discrimination cases. Section IV presents common tactics that employers use to attack named plaintiffs in defending against litigation. Finally, Section V provides suggestions for plaintiffs' attorneys to prevent and defend against abusive defense tactics and offers some suggestions for reform.
This YouTube video features Dean Chalak Richards, Associate Dean of Student Life at Pepperdine Law, in a discussion with a panel of professors about shifting civil procedure from a facially race-neutral space to one in which a professor can take advantage of discussing racial implications. The panel provides various examples of teaching opportunities and approaches to the difficult conversations around the disparate impact of modern civil procedure.
This user-friendly, readable book brings readers inside the courts, telling the story through the words and actions of the judges, lawyers, and ordinary people who populate it. It seeks to both edify and criticize. Readers will learn not only how courts work, but also how courts sometimes help - and often fail - the poor.
This article examines the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality–cohesion, unity–in the women's movement has had a significant impact on the ability of women to seek collective redress for work-place discrimination through class actions. The authors aim to generate thought as to ways in which class action doctrine simultaneously reflects and reinforces evolving views of feminism and gender equality, and argues that Rule 23(b)(2) suits continue to serve a vital function by allowing women to enforce those established norms.
This article argues that even with some unresolved issues of justice and fairness, mediation of race discrimination complaints can result in a win-win situation for all parties involved when used appropriately and effectively. The article first briefly explores how the EEOC, the federal courts, and the private sector all use mediation to resolve race discrimination in employment disputes. Thereafter, the article outlines the advantages of resolving race discrimination in employment claims through mediation.
This article suggests that the slavery reparation lawsuits are good vehicles with which to teach class actions. To show how the slavery reparation lawsuits can be used in class, this essay is divided into three parts. Section II will give a basic summary of the slavery reparation class actions and similar suits. Section III will discuss the formal requirements of class actions. Section IV will discuss how the slavery reparation suits illustrate the larger implications of class actions.
This article first unearths the modern class action rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases and deliberately address desegregation obstructionism. Second, the article examines the seminal role the modern class action rule has played in the private enforcement of statutory and Constitutional civil rights by analyzing Supreme Court jurisprudence interpreting Rule 23(b)(2) over the course of the last fifty years. Finally, the article critiques modern class action jurisprudence and concludes that it fails to sufficiently fulfill the drafters’ intent of creating an efficient and just procedural mechanism for challenging systemic inequality. The article urges a contemporary judicial interpretation that honors Rule 23(b)(2)’s strong civil rights mission.
This article is a case study of United States v. Hatahley using the methodology of "legal archaeology" to reconstruct the historical, social, and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over one hundred horses and burros. The first section of the article presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining the history of incidents culminating in the destruction of the Navajo horses, and the litigation that preceded Hatahley. The remainder of the article examines the role of racial conflict in various aspects of the case.
This article proposes a new way of thinking about a phenomenon by giving a name and description to the plaintiff who is most negatively impacted by the movement from a liberal to restrictive ethos: "the vanishing plaintiff." There are two basic factors that define the vanishing plaintiff: (1) her economic status and (2) her existence outside of social norms. While these two factors are inherently fluid, they are useful in focusing the bodies responsible for constructing procedural doctrine on how particular procedural changes may impact vanishing plaintiffs differently. Parts III and IV apply two restrictive procedural changes-pleading and summary judgment-to the vanishing plaintiff and demonstrates how the vanishing plaintiff distinctly suffers and why these claims are so important at effecting change.
A Guide to Civil Procedure – Integrating Critical Legal Perspectives
This book aims to be an effective tool for addressing the inequality embedded in the United States legal system. The authors focus on systemic injustice in the teaching, learning, and practice of civil procedure. The authors examine what is left out and ignored in law school curriculums and how this can lead to graduates that do not view issues of systemic injustice as central to their profession.