法律翻译 | 《哥大法律评论》第122卷第5期目录+摘要

This Essay explores how civil courts function as sites of racial capitalism. The racial capitalism conceptual framework posits that capitalism requires racial inequality and relies on racialized systems of expropriation to produce capital. While often associated with traditional economic systems, racial capitalism applies equally to nonmarket settings, including civil courts.

The lens of racial capitalism enriches access to justice scholarship by explaining how and why state civil courts subordinate racialized groups and individuals. Civil cases are often framed as voluntary disputes among private parties, yet many racially and economically marginalized litigants enter the civil legal system involuntarily, and the state plays a central role in their subordination through its judicial arm. A major function of the civil courts is to transfer assets from these individual defendants to corporations or the state itself. The courts accomplish this through racialized devaluation, commodification, extraction, and dispossession.

Using consumer debt collection as a case study, we illustrate how civil court practices facilitate and enforce racial capitalism. Courts forgo procedural requirements in favor of speedy proceedings and default judgments, even when fraudulent practices are at play. The debt spiral example, along with others from eviction and child support cases, highlights how civil courts normalize, legitimize, and perpetuate the extraction of resources from poor, predominately Black communities and support the accumulation of white wealth.

The discovery process is the most distinctive feature of American civil procedure. Discovery has been referred to as procedure’s “backbone” and its “central” axis. Yet 98% of American cases take place in state judiciaries where there is little to no discovery. Most state court cases involve unrepresented parties litigating debt collection, eviction, family law, and employment claims. And the state rules of procedure rarely give these parties the power to make discovery requests. This “missing discov­ery” means, then, that discovery is not a fundamental part of states’ legal traditions.

This Essay presents a study of America’s missing discovery system in state civil courts. It begins with a brief survey of state discovery rules that shows how discovery is often inaccessible and opaque. It then argues that while discovery has been key to the progress of federal law, it has not been an important tool for state law reform. Still, the Essay highlights that discovery is a double-edged sword: It can empower small claimants but may also impose costs and complexity that these litigants cannot han­dle. Accordingly, the Essay proposes an experiment in access-oriented discovery, focusing on disclosure obligations on sophisticated litigants. The Essay’s main goal, however, is to work toward a theory of discovery in state civil courts.

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts that are in tension. First, state civil courts can function as violent actors. Second, they have become unseen, collective policymakers in our democracy. This mismatch and the roles that result should spur us to reimagine state civil courts as institutions. Such institutional change requires broad mobilization toward meeting people’s social needs across the branches of government and thus rightsizing state civil courts’ democratic role.

Local organizations that lie outside of the scope of legal aid nonetheless engage legal processes. Such organizations draw on courts, lawyers, and legal problems as a basis for mobilizing and power building in racially and economically marginalized communities. They work within such communities to provide support navigating courts, obtaining legal representation, contesting unfair legal practices, and much more. These activities position local organizations as critical—yet too easily overlooked—civil legal institutions. Unlike other civil legal institutions (e.g., legal aid organizations and courts), nonlegal local organizations (e.g., tenant organizations) can operate inside and outside the formal civil legal system. Consequently, they have a distinctive vantage point and a pivotal role in developing power resources that are integral in a democratic polity. This Essay draws on in-depth qualitative interviews with tenant groups to offer an account of how local organizations engage civil legal processes and function as important institutional nodes in a larger civil legal infrastructure. By advancing knowledge of an imperative avenue through which race–class subjugated communities can exercise agency within civil legal processes, this Essay illuminates linkages between civil justice and local organizations and raises questions about how to better support tenant organizations as they undertake work that vitally enhances democracy.