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Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243 (2022).

The authors of Racial Capitalism in the Civil Courts bring together two underexamined areas of civil procedure scholarship—the state civil court system and race. Using the theory of racial capitalism as a lens, the authors argue that state courts, by design and effect, entrench the inequality upon which capitalism relies. Instead of providing a respite from injustice, state civil courts function by processes in opposition to traditional conceptions of fair procedures. For example, most individual defendants are without representation while the corporate plaintiffs have lawyers; there is little or no discovery; and there are high rates of default judgments. Moreover, racialized litigants bear the brunt of state court processes and their shortcomings. The authors argue that this perversion of justice is no accident but is instead by design.

In the wake of 2020’s racial reckoning, scholars have paid more attention to how race impacts the civil legal system. But much of the scholarship to date has focused on impact—how race drives one’s experience of the civil legal system through lack of access, how one is treated within the system, or how racial discrimination claims are adjudicated. Unlike the deep literature on the criminal legal system, which examines how systems of oppression—including the institution of slavery—have characterized the system’s development, no robust studies examine how the civil legal system entrenches racial inequities.

The authors engage racial capitalism as their framing device for this examination. Racial capitalism holds that racism and capitalism are inextricably linked. According to the theory, inequality is a requirement of capitalism and racial systems of oppression provide that necessary inequality. In essence, capitalism functions because systems of oppression provide cheap labor and prevent workers from effectively fighting back.

They identify four aspects of racial capitalism that are critical to understanding how the theory functions within state courts. First, racial capitalism relies on racialized systems of exploitation and extraction, enabling extraction of labor at rates that allow for those in power to make the most money. Second, capitalism was founded on and continues to require race-making practices designed to entrench inequality. Third, racial capitalism is not a stagnant structure; it can adjust to changing contexts such as granting limited rights to racialized populations while still exploiting those same groups. Finally, racial capitalism—although sounding in economic terms—is a nimble concept that applies to non-market systems like courts.

Considering these key aspects of racial capitalism, the authors explain how the state civil courts “both enforce and legitimize racial capitalism” by facilitating the dispossession of assets from racialized groups. For example, Black women are disproportionately defendants in eviction courts, which focus not on fair housing and sufficient shelter but on collecting rent. The courts also commodify individuals in a racialized way. Judicial processes around child support provide a ready example. Noncustodial fathers, disproportionately Black men, are not allowed to argue about how to maintain a relationship with their children; the proceedings are limited to determining their obligation to pay. Courts ignore the human side of a parent’s experience in favor of the bottom-line determination of the money at stake.

The authors also explore how state civil courts serve non-human corporations and how those corporations financially benefit. Corporations—largely controlled by, and beneficial to, white individuals—routinely use state civil courts to facilitate the transfer of assets to them from individuals who are disproportionately people of color. Other than the state itself, corporations are the most frequent plaintiff in state civil court and they use the court system to generate, in the aggregate, large sums of money from a disproportionately non-white set of defendants. This should not be characterized as neutral enforcement of a contract or agreement. Context matters. Combined with predatory creditors, landlords of inhabitable housing, and state-run aid systems that exploit families, the state civil courts become tools of capitalism by enforcing laws in ways that fail to account for the racialized context of each claim.

To demonstrate the theory, the authors use debt collection as a case study. Predatory lending practices have long targeted Black communities. Instead of receiving the realistic opportunity to build wealth, Black families have been caught in a system that negatively compounds their situation. State courts act as a critical part of this cycle by enforcing debt collection practices against individuals who default on payments. And they do so through a process in which the debt collector is represented by counsel while the individual is not, where judges might handle hundreds of cases a day, where service of process practices are dubious, and where default judgments are entered without examination. The result is unsurprising—the plaintiff wins. And with that win, more wealth is extracted, more human beings are commodified, and more families suffer—in an undeniably racialized way.

The lens of racial capitalism demonstrates how state civil courts function as cogs in capitalism’s wheel of oppression. And while the authors acknowledge that courts cannot single handedly defeat racial injustice, they challenge courts to refrain from facilitating it. This essay is impressive for how it utilizes the theory of racial capitalism and for how it highlights the need for more theoretical work on how race intersects with judicial processes and procedures. It is an exciting contribution to what I hope will become a burgeoning area of procedural scholarship.

I also want to emphasize how this essay is important not just for what is says but for how it says it. The authors name the individual scholars who originated and have long articulated pieces of these theories and arguments. And this naming occurs not only in footnotes but in the text. The authors identify a litany of fabulous and significant scholars, many of whom are women of color. This level of inclusion and recognition is unusual in procedural scholarship, especially in pieces published in journals of this caliber. This essay disrupts not only the theoretical framework of procedure but also the business of how we do academic scholarship. I am grateful to forums like Jotwell that create opportunities to bring attention to important work that might be otherwise marginalized. I also want to extend a message of gratitude and admiration to these authors for pushing to create an inclusive academic landscape. Let’s hope that more of us—myself included—follow their lead.

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Cite as: Brooke D. Coleman, State Civil Courts of Racial Oppression, JOTWELL (April 13, 2023) (reviewing Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243 (2022)), https://courtslaw.jotwell.com/state-civil-courts-of-racial-oppression/.