Race and Civil Procedure

Abstract

Abstract This chapter discusses how race, racism, and structural inequalities are central to understanding the day-to-day operation of the Federal Rules of Civil Procedure (FRCP), and are yet obscured from most first-year Civil Procedure courses. It begins by examining the doorways of discretion, particularly within rules and standards that apply to pretrial case management. The chapter focuses on dispositive motions, which filter out claims and terminate litigation, and emphasize motions to dismiss under Rule 12(b)(6). It then reflects on the social construction of race and racism. Because the FRCPs require judges to justify their decisions in legal opinions, dispositive motions become hidden sites where the legal construction of race and racism take place. Finally, the chapter explores the dominant perspective in the field that the FRCPs have evolved from a neutral, apolitical, and colorblind rule-making processes rather than from highly normative and partisan contestations. Over the past several decades, dominant interests and racial insiders have enacted reforms that impede the efforts of racial outsiders to use federal courts to realize rights and advance social equality.