Diversity Readings in Civil Procedure
Updated April 10, 2015.
Prepared by Mary Whisner.
This guide is part of a series of guides with readings about issues of race, class, gender, sexuality, and disability in traditional first-year courses.
Roy L. Brooks, Critical Procedure (1998), Classified Stacks (KF8841 .B737 1998)
This ground-breaking book on legal theory and civil procedure helps law students understand and apply Critical Theory to a core course within the law school curriculum. Clarifying 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.
Raising the question of whether federal procedure (including Federal Rules of Civil Procedure) would be different today if the views of people of color and women were consciously and systematically taken into account, Critical Procedure adds intellectual richness and awareness to the fields of civil procedure and legal theory.
- Subject matter jurisdiction: citizens, out-of-staters, foreigners
- Due process: notice and the opportunity to be heard
- Class actions and impact litigation
- Pleading and access to the courts
- Summary judgments
- Jury trials – immigrants, language requirements, felons, peremptory challenges
- Fairness for racial minorities in civil litigation
- Gender and class
Abstract: With the knowledge that civil procedure touches on important social justice concerns, this article lays out the case for raising issues of race, as well as class and gender, in the civil procedure survey course. There is every reason to try to integrate the most pressing social issues of our times in a class in which they naturally fit. This article also offers concrete suggestions on how one might integrate these issues into the survey course in civil procedure. In so doing, many examples are taken from cases included in John J. Cound, Jack H. Friedenthal, Arthur R. Miller, John E. Sexton, Civil Procedure: Cases and Materials (8th ed., 2001), perhaps the leading casebook, as well as one of the most traditional, in the field. This casebook has proven to be an effective teaching tool for civil procedure professors at schools across the country and, perhaps surprisingly to some, neatly lends itself to the integration of race, class, and gender into class discussion.
This essay explores the story of Floride Norelus, an undocumented Haitian immigrant, her civil rights lawyers, and the judges who didn't believe them. The backdrop for Norelus's story comes out of Ariela J. Gross's new book What Blood Won't Tell: A History of Race on Trial in America. In What Blood Won't Tell, Gross, an elegant historian and eloquent storyteller, enlarges an already distinguished body of work on slavery, race, and antebellum trials to investigate the changing meaning of identity in law and litigation. . . .
This Essay extends Gross's historical scrutiny of identity trials to contemporary civil rights debates over the construction of race in law and litigation.
Abstract: What if restrictive procedural rules kept cases like Bakke v. Regents of the Univ. of Cal., Monell v. Dept. of Soc. Servs., and Hopkins v. Price Waterhouse from making it past a motion to dismiss and on to the Supreme Court? A case like Bakke is well-known for its holding about the use of race in admissions policies. But imagine that Alan Bakke was never able to get his original trial court complaint past a motion to dismiss, through discovery, and on to a final, appealable judgment. While reasonable people can disagree about the merits of Bakke, it is fair to say that our collective legal consciousness would be altered had he not been able to have his paradigmatic day in court. Yet, that world—the one without Bakke and his legal claim—is exactly the world in which our civil justice system increasingly finds itself. Plaintiffs like Bakke are simply vanishing, and the restrictive procedural regime is largely to blame. Over the past thirty years, Congress, the Supreme Court, and the civil rule-making bodies have responded to the argument that litigation is burdensome by restricting access to the system itself through changes to procedural doctrine. These institutions are concerned about the effect that merit-less litigation has on defendants. Yet, both the institutions responsible for formulating procedure and the scholars that critique the same have failed to carefully consider one critical issue: the identity of the plaintiffs whose meritorious claims are sacrificed under a restrictive procedural regime. We already know the identity of the defendants that most benefit under this regime—they are corporations, government bodies, and other organizations. But, the identity of the plaintiffs whose meritorious claims are lost is unknown and unstudied. This article constructs an identity for these plaintiffs by arguing that recent restrictive procedural changes, like those to pleading and summary judgment, interact differently with some plaintiffs’ distinctive characteristics, like race, economic status, and/or gender. The result is that these plaintiffs—who the article calls vanishing plaintiffs—are less able to bring their claims. They are either barred from pursuing their claims by operation of a particular procedural rule or they are unable to get their claims into the system at all because of the regime’s overall chilling effect. The loss of these claims comes at a high systemic cost. Litigation by vanishing plaintiffs has historically created new bodies of law and has served to enforce that law when other enforcement mechanisms have failed. With the exclusion of the vanishing plaintiff and her claims comes the loss of these critical path-breaking and enforcement mechanisms. Thus, in order to regain this benefit, the institutions responsible for crafting procedural doctrine should carefully consider how changes in procedure impact vanishing plaintiffs. This article argues that such a consideration will often require a retreat from the current restrictive procedural regime.
Abstract: In race and sex discrimination class actions, if a defendant employer makes a Rule 68 offer of judgment to the named plaintiffs, courts routinely refuse to dismiss the class claims. In stark contrast, in collective actions for failure to pay lawful wages, if a defendant employer makes a Rule 68 offer of judgment, courts will often dismiss the entire collective action as having been mooted by the named plaintiffs’ recovery. The outcome of such a dichotomy is that low-wage workers are increasingly unable to challenge unlawful wage violations successfully because the aggregation mechanism is too easily defeated. Without an ability to group wage and hour claims in an aggregate action, multitudes of wage violations will go unheard because individual wage claims do not attract the attention of plaintiff’s attorneys.
This failure to protect an underprivileged group of low-wage workers the laws are explicitly trying to protect is striking and effectively subverts the statutory protections in place since the 1930s to combat wage theft by employers. By most accounts, the civil rights movement of the 1960s was successful in addressing discriminatory practices through not only substantive, statutory rights, but also procedural mechanisms by which those rights could be easily and appropriately vindicated through access to the courts.
In contrast, the right of low-wage workers to receive what they lawfully earn has a long-standing statutory remedy but an antiquated procedural mechanism. That procedural mechanism both diminishes their ability to fully vindicate their rights and is also now being cited as the structural difference that allows other procedural rules (i.e., Rule 68) to deny standing in federal court at the outset.
This article examines this rising phenomenon by first outlining 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 section 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 the inconsistencies apparent in the federal case law denying the applicability of Rule 68 in the class context but more often dismissing collective claims when Rule 68 offers are made against collective action plaintiffs.
Rebecca L. Sandefur, , Access to Civil Justice and Race, Class, and Gender Inequality 34 Ann. Rev. Soc. 339-58 (2008), SSRN
Abstract: Access to civil justice is a perspective on the experiences that people have with civil justice events, organizations, or institutions. It focuses on who is able or willing to use civil law and law-like processes and institutions (who has access) and with what results (who receives what kinds of justice). This article reviews what we know about 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. Evidence reveals that civil justice experiences can be an important engine in reproducing inequalities and deserve greater attention from inequality scholars. However, the inequality-conserving picture in part reflects scholars' past choices about what to study: Much research has focused narrowly on the use of formal legal means to solve problems or advance interests, or it has considered the experience only of relatively resource-poor, lower status, or otherwise less privileged groups. Thus, we often lack the information necessary to compare systematically groups' experiences to each other or the impact of law to that of other means of managing conflicts or repairing harm.
Abstract (from SSRN): In this case study, the author examines the ways in which race affects the progress and outcome of litigation under the Federal Tort Claims Act. The litigation is brought by individual Navajo plaintiffs against the federal government for the destruction of over a hundred horses and burros. The background conflict over access to public land is laid out, and then the article looks at the difficulty in assessing damages, the impact of the litigation on the underlying land claims, and the question of judicial bias.
Abstract (from published article): 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 parties, the history of incidents culminating in the destruction of the Navajo horses, and thelitigation that preceded Hatahley.
The remainder of the article examines the role of racial conflict in various aspects of the case. Part II looks at the problem of cross-cultural damages and how the courts grappled with assigning money damages where the plaintiffs live in a non-market-based society. Part III examines the intersection of race and power, particularly the paradoxical role of law in both maintaining and challenging racial hierarchies. Part IV examines the question of judicial bias from a unique perspective. The case ultimately was assigned to another judge due to the trial judge's alleged partiality in favor of the Navajos. The section explores whether the lack of prejudice, when contrasted with a background societal prejudice, could be read as partiality. The epilogue points out how this question has a modem application.
Abstract: As disputants more frequently utilize arbitration to resolve disputes, the likelihood that discriminatory arbitrator selection will occur also increases. While some disputants might consent to selecting an arbitrator for particular reasons, it is troublesome to think that repeat players, such as employers and businesses, might use their greater knowledge and experience with the arbitral process to gain control over the arbitrator selection process through the use of peremptory challenges. Opponents of arbitration have attempted to adopt existing legal arguments to address this problem. Unfortunately, however, neither the state action doctrine nor the use of the existing public policy exception to the enforcement of an arbitration agreement or arbitral award will be successful as a means to challenge the use of discriminatory peremptory strikes. Because existing legal arguments fail to address this growing problem, this Article proposes an amendment to the Federal and Uniform Arbitration Acts to address the problem of discriminatory arbitrator selection. The proposed statute, which would ban discrimination in the selection of an arbitrator on the basis of race, ethnicity, national origin, sex, religion, or sexual orientation, mirrors the classifications that the Batson principle encompasses and thus is justifiable for both practical and constitutional reasons.
Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545 (1991), LexisNexis
Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):
Studies the rise and use of mediation as an alternative to adversarial adjudication in divorce and child custody cases. Argues that although many who have used the process are pleased with it, mediation, particularly of the involuntary type, has many potentially harmful consequences. For example, despite the general assumption that mediation is "gentler" than litigation, the process can easily assume adversarial characteristics. Mediation can also lead to suppression of necessary [*492] anger in women. Further, the intimate setting of mediation provides an environment where racial and sexual prejudices can flourish.
Race-based employment discrimination in this country has had a long and troublesome history of discrimination directed at various minority groups. The primary difference between past and present discrimination is that today’s discrimination is much more subtle. In the past, it was not only lawful, but acceptable to simply state “We don’t hire your kind here!” However, discriminatory practices have taken a much more indirect and less obvious approach with the advent of affirmative action programs, Title VII of the Civil Rights Act, and enforcement of civil rights laws by federal courts and the U. S. Equal Employment Opportunity Commission (EEOC). Some describe today’s race-based discrimination as discrimination with a smile. Undoubtedly, discrimination continues to persist in virtually every aspect of our society, such as housing, public accommodation, and employment matters, to name but a few problem areas.
Congress and most states have promulgated a number of statutes to prohibit race discrimination in employment. Specifically, Congress passed Title VII of the Civil Rights Act of 1964 to prohibit workplace discrimination, particularly racial discrimination. Plaintiffs primarily use Title VII to pursue race discrimination charges against employers. This has resulted in an explosion of race complaints filed with the EEOC and in federal courts.
Approximately one hundred thousand claims of employment discrimination are filed with the EEOC every year. Additionally, employees also file racial employment discrimination in federal court under sections 1981 and 1983 of the Civil Rights Act of 1866. Also, plaintiffs file charges with state fair employment practices agencies and in state courts under various under state and local laws. To address this influx of cases filed in both federal and state courts, mediation programs have been implemented throughout the judicial system. Mediation helps resolve cases prior to the expenditure of limited judicial resources on litigation. Every federal agency is required to have an alternative dispute resolution (“ADR”) system to resolve disputes in lieu of litigation. In addition, the Civil Rights Act of 1991 encouraged the use of mediation to resolve discrimination disputes.
Abstract: This Essay argues that our understanding of the reasonable person in economic transactions should take into account an individual’s race, gender, or other group-based identity characteristics - not necessarily because persons differ on account of those characteristics, but because of how those characteristics influence the situations a person must negotiate. That is, individuals’ social identities constitute features not just of themselves, but also of the situations they inhabit. In economic transactions that involve social interaction, such as face-to-face negotiations, the actor’s race, gender, or other social identity can affect both an individual actor and those who interact with him or her, because those characteristics often create expectations, based largely on group-based stereotypes, that influence the parties on both sides of the transaction. Individuals’ social identities thereby can influence their constraints and incentives, and accordingly their choices, behavior, and outcomes.
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: disturbing because they show that stereotypes can influence the behavior of both women and men in negotiations, to the detriment of women, even if the individuals do not believe the stereotypes to be true, and that stereotypes can interact with other features of the situation to aggravate their tendency to promote unequal outcomes. The findings are promising as well, however, because they also show that gender stereotypes can be moderated or even counteracted by yet other features of the situation. Appreciating the situation-altering yet situation-sensitive influence of social identities such as gender provides us with a richer understanding of the circumstances in which people interact and shows that, sometimes, common economic transactions take place in different places for different people.
Hillary Jo Baker, Note, No Good Deed Goes Unpunished: Protecting Gender Discrimination Named Plaintiffs from Employer Attacks, 20 Hastings Women's L.J. 83-128 (2009), HeinOnline
This Note will cast 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. Because the bulk of these practices are "behind the scenes" of litigation and typically are not described in judicial opinions, this Note will tell the anecdotal stories gleaned from interviews with prominent plaintiffs' class counsel and a named plaintiff.
A core belief underlying this Note is that sex discrimination class actions are an essential tool for civil rights reform. Those brave enough to put their names and livelihoods front and center in these contentious, high-stakes proceedings are performing what Nantiya Ruan describes as an "essential and difficult public service."
p. 84 (citation omitted)
Allen R. Kamp, The History Behind Hansberry v. Lee, 20 U.C. Davis L. Rev. 481 (1987), HeinOnline
Abstract: Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination which defined a group's social identity was also sufficient to legally bind members together, even when relief had to be issued individually. Interwoven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons with disabilities. Under the Americans with Disabilities Act ("ADA"), individual employee claims to accommodate specific impairments, such as whether to install ramps or replace computer screens, have all but eclipsed a coherent theory of disability-based disparate impact law, and the class action device has been virtually non-existent in disability discrimination employment cases. The absence of collective action has been especially harmful because the realm of the workplace is precisely where group-based remedies are needed most. Specifically, a crucial but overlooked issue in disability integration is the harder-to-reach embedded norms that require job and policy modifications. The 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. In advocating for a return to an earlier paradigm of collective action in the disability context, the Article also provides some thoughts for challenging race and sex-based discrimination.
Jay Tidmarsh, The Story of Hansberry: The Rise of the Modern Class Action,, in Civil Procedure Stories 233-93 (Kevin M. Clermont ed., 2d ed. 2008), KF8839.C455 2008 at Reference Area
Discusses Hansberry v. Lee, 311 U.S. 32 (1940), a case challenging racially restrictive covenants that went to the Supreme Court on issues of class actions, adequacy of representation, and conflicts of interest.
Lorraine Hansberry, the young daughter of one of the named parties, later wrote Raisin in the Sun, a play about a black family buying a home in a white neighborhood.
Katie M. Patton, Note, Unfolding Discovery Issues That Plague Sexual Harassment Suits, 57 Hastings L.J. 991-1007 (2006), HeinOnline
This Note surveys some of the more common discovery issues that plague sexual harassment suits. Part I provides a brief overview of a sexual harassment claim and the specific elements needed for this cause of action. Part II will examine the struggle between the policies underlying Rule 26 (generally allowing parties to engage in a broad scope of discovery) 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 the scope and amount of distress the victim suffered as quantified in damages the plaintiff should receive. 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. In conclusion, I will discuss briefly 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.
David Benjamin Oppenheimer, Martin Luther King, Walker v. City of Birmingham, and the Letter from Birmingham Jail, 26 U.C. Davis L. Rev. 791-833 (1993), HeinOnline David Benjamin Oppenheimer, Kennedy, King, Shuttlesworth and Walker: The Events Leading to the Introduction of the Civil Rights Act of 1964, 29 U.S.F. L. Rev. 645-79 (1995), HeinOnline David Luban, Difference Made Legal: The Court and Dr. King, 87 Mich. L. Rev. 2152-224 (1989), HeinOnline
My aim in this essay is 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 Martin Luther King, 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. I wish to show how the self-same event entails radically different legal consequences when it appears in different narratives, one the Supreme Court's official voice, the other the excluded voice of one of the defendants whose condemnation the Supreme Court affirmed.
p. 2156 (citations omitted)
David Abrams et al., Do Judges Vary in Their Treatment of Race?, 41 J. Legal Stud. (2012), SSRN
Abstract: Are minorities treated differently by the legal system? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges differ from each other in how they sentence minorities, avoiding potential bias from unobservable case characteristics by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, where race does not influence judicial sentencing. In our data set, which includes felony cases from Cook County, Illinois, we find statistically significant between-judge variation in incarceration rates, although not in sentence lengths.
Pat K. Chew & Robert E. Kelley, The Realism of Race in Judicial Decision Making: An Empirical Analysis of Plaintiffs' Race and Judges' Race, 28 Harv. J. on Racial & Ethnic Justice 91 (2012), SSRN
American society is becoming increasingly diverse. At the same time, the federal judiciary continues to be predominantly White. What difference does this make? This article offers an empirical answer to that question through an extensive study of workplace racial harassment cases. It finds that judges of different races reach different conclusions, with non-African American judges less likely to hold for the plaintiffs. It also finds that plaintiffs of different races fare differently, with African Americans the most likely to lose and Hispanics the most likely to be successful. Finally, countering the formalism model’s tenet that judges are color-blind, the results suggest that judges of one race are more likely to hold for plaintiffs of the same race, suggesting a tendency toward insider group preferences. These findings illustrate the complex race dynamics in judicial decision-making and the consequences of a judiciary that does not reflect the citizenry’s racial diversity.
Stephen J. Choi et al., Judging Women, 8 J. Empirical Legal Stud. 504 (2011), SSRN
Abstract: Judge Sonia Sotomayor’s assertion that female judges might be “better” than male judges has generated accusations of sexism and potential bias. An equally controversial claim is that male judges are better than female judges because the latter have benefited from affirmative action. These claims are susceptible to empirical analysis. Primarily using a dataset of all the state high court judges in 1998-2000, we estimate three measures of judicial output: opinion production, outside state citations, and co-partisan disagreements. We find that the male and female judges perform at about the same level. Roughly similar findings show up in data from the U.S. Court of Appeals and the federal district courts.
Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with “behavioral realism.” The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.
Abstract: This article examines the process of jury service selection and the factors that may influence the representation of certain racial and socioeconomic groups. I first discuss the origins of the jury system and the role of the jury as a representative democratic institution. Next, I examine the process of jury service selection in Pennsylvania considering how minority underrepresentation may arise during that process. Finally, I address a variety of measures proposed to remedy underrepresentation and review these proposed reforms to the Pennsylvania jury service selection process.
This Article canvasses the jurisdictional rules applicable in American Indian tribal territories — “Indian country.” The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law preempted state authority over Indians in their territory. The federal law permitting some state jurisdiction, Public Law 280, is a relic of a policy repudiated by every President and Congress since 1970. States have authority to surrender, or retrocede, the authority granted by Public Law 280, but Indian tribal governments should be allowed to determine whether and when state jurisdiction should be limited or removed.
The Public Law 280 legislation was approved by Congress in the face of strenuous Indian opposition and denied consent of the Indian tribes affected by the Act . . . .The Indian community viewed the passage of Public Law 280 as an added dimension to the dreaded termination policy. Since the inception of its passage the statute has been criticized and opposed by tribal leaders throughout the Nation. The Indians allege that the Act is deficient in that it failed to fund the States who assumed jurisdiction and as a result vacuums of law enforcement have occurred in certain Indian reservations and communities. They contend further that the Act has resulted in complex jurisdictional problems for Federal, State and tribal governments.
S. COMM. ON THE INTERIOR & INSULAR AFFAIRS, 94TH CONG., BACKGROUND REP. ON PUBLIC LAW 280 (Comm. Print 1975) (statement of Sen. Henry M. Jackson, Chairman).
Senator Jackson’s statement accurately described the issues then and now. This Article reviews the legal history of federal-tribal-state relations in the context of Public Law 280 jurisdiction. Washington State has recently taken progressive steps that could serve as the foundation for a national model to remove state jurisdiction as a tribal option. The modern Indian self-determination policy is not advanced by adherence to termination era experiments like Public Law 280. The Article concludes that federal legislation should provide for a tribally-driven retrocession model and makes proposals to that end.
Abstract: Article Three, Section Two of the Constitution grants federal courts jurisdiction over Controversies . . . between Citizens of different States. In Dred Scott v. Sandford, the Supreme Court declared that free blacks could never be Citizens within the meaning of this provision. Chief Justice Taney, speaking for the Court, purported to base this decision on the original understanding of the Constitution, which (he said) eternally fixed that document's true meaning.Yet his opinion cited nothing that any member of the Founding generation ever did or said with respect to Article Three, Section Two. . . .
. . .
Although Taney's conclusion was vigorously denounced by Justices Curtis and McLean, neither challenged his failure to adduce any evidence of what the Founders actually thought about the status of free blacks with respect to the diversity provision of Article Three, Section Two. And neither the dissenting Justices nor the lawyers for the parties cited any such evidence, on either side of the issue. It's only fair to assume that no one knew of anything to cite.
However, I recently discovered something of which they all seem to have been unaware. While looking through some eighteenth-century American newspapers, I chanced upon a story about the 1793 federal court proceedings in a pair of interracial diversity cases captioned Elkay v. Moss & Ives. . . . [T]he Elkay litigation provides our first solid evidence of the views of at least several prominent members of the Founding generation about the diversity question considered in Dred Scott. Moreover, the public's reaction to the widespread news reports of these trials sheds light on the broader, public, understanding of that issue.
. . .
In Part I of this paper, I will relate the story of the Elkay affair. In the following section, I will explain why I believe it suggests that Dred Scott's Article Three ruling was, on its own terms, wrong. Finally, I will comment on the larger implications for originalist jurisprudence of my discovery of this litigation.
Abstract: This essay analyzes the idea, put forth in the new federalism jurisprudence of the United States Supreme Court, that "the Constitution requires a distinction between what is truly national and what is truly local." This mode of analysis has generated a posture I term categorical federalism; the Court assumes that a particular law can be categorized by identifying its aims as governing certain aspects of human behavior. The litigation about the Violence Against Women Act provides a first example. In United States v. Morrison, the majority claimed that what Congress had termed a "civil rights remedy," enacted through its Equal Protection and Commerce Clause powers, was instead related to families and crime because violence against women was not "economic in nature." The majority then proceeded to identify families as a subject matter for state, rather than federal, lawmaking. . . .
Categorical federalism not only fails as a description, it is also harmful, for it deflects attention from the many political and legal judgments made by the national government in its regulation of the lives of current and former householders, and made by local governments in their relations with economies outside the United States. Just as it cloaks national and local powers from view, categorical federalism also provides a false sense of security from transnational lawmaking.
To interrupt the embrace of categorical federalism, I offer another approach, termed multi-faceted federalism, which acknowledges the reliance on categories but refuses to ascribe a single mark of identity to a given law and which presumes governance may reside at multiple sites. . . .
By examining shifting roles for women, by detailing the interrelationships among violence, family and women's economic capacity, and by examining changing laws both within the United States and beyond (such as the U.N. Convention on the Elimination of All Forms of Discrimination Against Women), this essay demonstrates that multi-faceted federalism provides a better description of current practices and a better set of aspirations for living in a world increasingly, and painfully, of permeable borders.
Judith Resnik, Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction,15 Yale J. L. & Feminism 393-418 (2002), SSRN
Abstract: This essay has five themes. First, jurisdiction has gender. Whenever power is being allocated between state and federal courts, one must ask not only how women are treated but how the allocation affects our understanding of the problems that belong to women and to men. By drawing jurisdictional lines, polities may also be drawing gender lines. We must probe both the jurisdiction in gender, and the gender in jurisdiction.
Second, I counsel against assuming that any particular jurisdiction is necessarily a safe harbor for women's equality. . . .
My third point is to enlarge the frame beyond the arguments that jurisdictions can become gendered and that jurisdictional divides are one of the many mechanisms by which women and men are distinguished. Gender systems are themselves forms of jurisdiction. At its core, the sex/gender system is a system of boundaries. Many of the successes that have advanced women's equality have come by reframing understandings of the range of possibilities of both women and men, by redrawing some boundaries, and by erasing others. To do so has required detaching assumptions of the naturalness of differences between women and men and replacing those assumptions with appreciation for the breadth of capacities that all persons possess.
Feminism has long known that it had much to fix. That women had to come to terms with the political construction of the family has long been obvious. That women had to focus on violence has also been readily evident. What I hope to show is that feminism must also take on the conceptual underpinnings of this federation. We need to understand the assignment of roles within it to state, local, and national institutions and to demonstrate the way in which gender and patriarchal assumptions infuse understandings of the categories of federalism and of the very meaning of the powers permitted to the national government. Thus, and fourth, in addition to projects related to women's work, to violence, and to families, feminists must add questions of federalism to the list of structures and practices requiring refurbishing.
Fifth, to work successfully to create women's equality depends upon collaboration - among women, between women and men, and across levels of government.
Donald N. Bersoff, Judicial Deference to Nonlegal Decisionmakers: Imposing Simplistic Solutions on Problems of Cognitive Complexity in Mental Disability Law, 46 SMU L. Rev. 329 (1992)
This Article explores the tension between a preference for decisionmaking by mental health professionals on issues of mental disability law and those professionals' capacity for making accurate judgments. The primary vehicle for this exploration is social science research generated by cognitive and social psychologists. Part I reviews relevant Supreme Court decisions, their application by lower courts concerning professional judgments, and the increasing preference for informal, nonjudicial fora in which such judgments will be exercised. Part II, the core of this Article, reviews expanding, revealing research of cognitive psychologists regarding human decisionmaking generally, and clinical and forensic decisionmaking particularly. Part III, relying heavily on the work of social psychologists examining procedural justice, argues that a preference for informal procedures is likely to exacerbate decisional errors by mental health professionals and, as a result, is antagonistic to the core adjudicatory values of fairness and accuracy. In Part IV, the Article concludes that the human decisionmaking and procedural justice literature is incompatible with a preference for nonlegal decisionmaking in cases involving the rights of the mentally disabled.
Every year in my 1L Civil Procedure course, I introduce the subject with a collection of due process cases. The cases force students to confront the tension between procedural efficiency and fairness right out of the gate. It sets a fantastic tone for a course that is essentially all about managing that tension. One particular case, Lassiter v. Department of Social Services, really gets students’ attention. The debate about that case is inevitably a lively one. And, for that, I am so very grateful. However, every year when I teach it, I find myself rejecting the case and its approach even more. In short, the case is about the termination of parental rights and whether, during the hearing to adjudicate one’s parental rights, an indigent parent should have a state-appointed attorney. Why do I dislike this case so much? Well, that is a thorny question. There are a number of reasons to despise this case. It is written without any acknowledgment of race or institutionalized racism, nor does it confront the failings of our criminal justice system. The Court also turns a blind eye to the realities of poverty. Thus, there are many angles from which one could attack this decision, as it is a case that finds itself at the intersection of so many “isms.” Yet, for me, the case is most offensive because it is so sexist. The characterization of motherhood and its value to our society is not just off-putting, it is plain irksome.
Anthony Taibi, Note, Politics and Due Process: The Rhetoric of Social Security Disability Law, 1990 Duke L.J. 913
To explore what judges can and should do, this Note examines the Social Security disability system. Part I describes the incomplete congressional definition of disability and how this definition operates within the disability determination process. This Part also explores the determination process, which has detailed guidelines, procedures, and management oversight. But what appears coherent and principled to managers and lawyers often seems arbitrary and unfair from the claimant's perspective. Part II examines the question of what process is due. This Part criticizes the currently dominant rhetoric of due process—a rhetoric that ignores the need for governmental determinations to account for their impact on the dignity of those affected.
Part III explains how substantial pragmatic, structural, and ideological restraints prevent or dissuade judges from attempting much more than case-by-case review. This Part examines why procedural intervention*919 in unfair agency procedures often has done little for those it was meant to help. Part III then argues that the professional norms that currently restrain judges from speaking out to influence social and political values are pernicious and ahistorical. The insular norms of the legal profession that currently control judicial behavior should be supplanted with politically determined democratic standards. Part IV concludes that although the role of judges in the American political system is limited, their mandate as the interpreters of the Constitution requires that they actively participate in a democratic, social quest to discover and create constitutional meaning.
Abstract: This article discusses the underlying policy rationales for statutes of limitations and their exceptions, as demonstrated by Supreme Court precedents. This article explores limitations law in the context of a case brought by African-American survivors of the Tulsa Race Riot of 1921 who sought restitution from the local government for its participation in one of the worst race riots in American history, in violation of their constitutional and federal civil rights. Using the Tulsa case as an exemplar, this article analyzes the propriety of the case’s dismissal as time-barred, and contends that this outcome was unwarranted under precedents and failed to serve the underlying policy rationales of limitations law today. Although limitations periods have been a fixture in the American legal system for centuries, in general, little modern scholarship has explored the continued validity of their underlying purposes. The Tulsa litigation is a perfect test case. Such litigation presents both the starkest example of a stale claim (i.e., one that is decades old) and, at the same time, one of the most egregious circumstances under which equitable principles would conceivably apply (i.e., state-sanctioned violence and discrimination). The case provides an important lens through which scholars may examine the policy rationales for our limitations system. Central to limitations law is society’s recognition that there must be tradeoffs for a just and orderly legal system to prevail. Limitations law provides fairness to the defendant by providing repose, promoting accurate fact finding, and curtailing plaintiff misconduct - such as dilatory action and fraudulent litigation. Limitations law also promotes efficiency and ensures institutional legitimacy through the consistent application of neutral rules. Notwithstanding the many benefits of limitations law, the Anglo-American legal system has carved out numerous exceptions to the application of limitations periods to serve countervailing interests. Such exceptions include: Providing litigants their due process right to be heard; ensuring procedure does not trump substance; promoting institutional legitimacy through flexible and equitable considerations; developing the law; and promoting fairness to the plaintiff. Some argue that civil rights claims remote in time should be barred because their age complicates the identification of the parties, causation and remedies. They contend that such claims compromise deterrence, undermine repose or do not warrant equitable treatment. Others argue that these claims should survive limitations periods and be adjudicated on the merits because the claims fall within commonly recognized exceptions such as: equitable estoppel; equitable tolling; and accrual mechanisms like the discovery rule and the continuing violations doctrine. Or they contend that these claims fall outside of law governed by temporal restrictions altogether. This article explores such countervailing views in the context of African-American citizens (some over 100 years old) seeking restitution for a racial massacre that occurred over three-quarters of a century ago. Where the claims are so horrendous they cry out for equitable relief and yet so remote in time they seem insurmountable, it is important for courts to recognize that they have the tools to permit such claims to be heard on the merits, and the responsibility to examine when the underlying policy rationales for limitations law are not being served. This article is part of a series examining the impact of procedure on civil rights.
Elizabeth M. Schneider, The Dangers of Summary Judgment: Gender and Federal Civil Litigation, 59 Rutgers L. Rev. 705-77 (2007), HeinOnline
In this Article, I turn to one of the most important procedural devices in federal civil procedure—summary judgment—and examine its problematic application through a study of gender cases. Identifying a new dimension of the interrelationship between procedure and gender, I explore the ways in which summary judgment impacts cases involving gender and how gender impacts judicial decision making on summary judgment. I use these insights to analyze the dangers of current summary judgment practice and propose reforms.
Deseriee A. Kennedy, Processing Civil Rights Summary Judgment and Consumer Discrimination Claims, 53 Depaul L. Rev. 989-1012 (2004), HeinOnline
Plaintiffs in consumer discrimination cases face significant substantive and procedural hurdles in articulating viable claims. This Article discusses the way in which the prevailing procedural standards undermine the ability of plaintiffs to pursue consumer discrimination claims. It raises the concern that premature dismissals of these claims unduly silence plaintiffs, hinder the ability of the Civil Rights Acts to fairly address issues of societal discrimination, and prevent a broader understanding of the subtle ways in which racism continues to be manifested.