Abstract

Excerpted from Keeshea Turner Roberts, Racialized Procedure: Statutes of Limitations, Racial Time, and the Silencing of Black Harm, 59 U.C. Davis Law Review 2767 (June 2026) (298 footnotes) (Full Document).

On November 24, 2025, Viola Ford Fletcher (Mother Fletcher) died at age 111, the oldest known survivor of the 1921 Tulsa Race Massacre. She died having testified before Congress, written a memoir, and lived long enough to witness renewed public recognition of an atrocity that the law had long refused to acknowledge. As a seven-year-old child in Greenwood, Oklahoma, she saw white mobs, many deputized by the state, destroy a thriving Black community through gunfire, arson, and aerial assault. As she told Congress: “I still see Black men being shot and Black bodies lying in the street. I still smell smoke and see fire.... I still hear airplanes flying overhead. I hear the screams.”

For more than a century, Mother Fletcher carried the truth of Greenwood. The law carried something else: silence. Courts declined to adjudicate claims arising from the Massacre, legislatures avoided responsibility, and procedural doctrines ensured that no court would ever determine liability for the destruction of Greenwood. Despite abundant evidence of state complicity -- deputized white aggressors, aerial bombings, police refusal to intervene, mass displacement -- no tribunal ever adjudicated liability. The absence of accountability was not accidental. It was produced.

This Article uses the Tulsa Race Massacre as a case study to examine how facially neutral procedural doctrine, particularly statutes of limitations, operates to foreclose claims arising from racial terror and state-enabled violence. Rather than focusing on the substantive illegality of the Massacre, this Article interrogates the procedural architecture that rendered those claims legally unknowable. Tulsa reveals how law does not merely fail to respond to racial violence but actively governs when and whether such violence can be recognized at all.

This Article argues that justice was not merely denied; it was procedurally foreclosed. Through statutes of limitations and related doctrines, civil procedure transformed state-created delay into legal incapacity. Rules that appear neutral and administrative functioned as temporal gatekeepers, determining whose injuries were actionable and whose were deemed too late to matter. In contexts of racial terror, statutes of limitations, accrual doctrines, laches, and tolling standards insulated perpetrators while imposing impossible temporal demands on survivors. Civil procedure did not simply fail to respond to racial violence. It structured when -- and whether -- such violence could be legally recognized at all.

Drawing on Professor Suzette Malveaux’s taxonomy of silencing -- temporal, procedural, epistemic, and material -- and Professor Yuvraj Joshi’s theory of racialized time, this Article develops a racial-temporal framework for understanding how procedural law accelerates, delays, and extinguishes claims according to racialized logics of order and worth. Time in civil procedure is not neutral. It reflects dominant temporal norms -- expectations of immediate access to courts, institutional trust, documentary preservation, and procedural literacy -- that systematically disadvantage communities shaped by displacement, intimidation, trauma, and state suppression.

While scholars have documented the substantive harms of racial violence, far less attention has been paid to the procedural architecture that determines whether such harms are ever adjudicated. This Article intervenes by treating time itself -- accrual, delay, discovery, tolling, repose -- as a racialized technology embedded within civil procedure.

I write not as a historian of the Tulsa Race Massacre, nor as a member of the Greenwood community, but as an access-to-justice scholar examining how gatekeeping rules mediate race, power, and historical memory. This Article is the first in a series developing what I call “Racialized Procedure”: a framework for understanding how facially neutral procedural doctrines structure racial subordination within civil adjudication. This installment focuses on time as a weapon. Future work will address standing, sovereign immunity, and fragmentation barriers that similarly prevent adjudication of collective Black harm.

This Article makes three contributions. First, it offers a historical and doctrinal account of how statutes of limitations operate to silence claims arising from racial terror. Procedure is treated not as technical backdrop, but as governance. Second, it advances a critical procedural framework demonstrating how time, neutrality, and closure operate as sites of racialized power. Third, it applies this framework to modern litigation -- including the dismissal of claims in Alexander v. Oklahoma -- to show how contemporary courts transform historical delay into doctrinal closure. By revealing how these mechanisms function, this Article challenges the assumption that procedural time is inevitable or apolitical.

These contributions are urgent. Recent developments in federal and state policy -- including attacks on voting rights, civil rights enforcement, and the militarized management of protest -- demonstrate that procedural silencing remains an active mechanism of inequality. Without attention to the procedural architecture that determines whose claims are legally cognizable, history does not merely repeat itself; it is formally insulated from review.

This Article proceeds in four Parts. Part I recounts the Tulsa Race Massacre, centering Greenwood before and during racial terror and illustrating how law and silence shaped survivors’ experiences. Part II explains the structure and operation of statutes of limitations as temporal gatekeeping devices. Part III develops a racial-temporal framework, integrating Malveaux’s taxonomy of silencing and Joshi’s theory of racialized time, and applies it to modern litigation, including Alexander v. Oklahoma, to demonstrate how procedural doctrine disciplines historical memory. Part IV turns to reform, examining legislative interventions such as revival windows and other remedial models that restore procedural access to courts where systemic racial barriers previously prevented timely filing, disrupting procedural erasure and reopening the possibility of adjudication.

Mother Fletcher lived 104 years after the Massacre waiting for acknowledgment. She died having spoken but having never been fully heard in a court of law. Civil procedure made that possible. Using Tulsa as a case study, this Article demonstrates that statutes of limitations are not merely rules about delay; they are instruments of racialized governance. They determine whose suffering becomes history and whose remains legally actionable. By confronting time as a site of racial power, this Article seeks to ensure that law does not continue to convert injustice into expiration.

[ . . . ]

The story of Greenwood is not merely a historical tragedy; it is a testament to how law, through time itself, can operate as a tool of erasure. Mother Fletcher and countless other survivors lived and died without seeing their suffering formally adjudicated. Courts dismissed their claims as untimely, insurers denied coverage, and decades of legal and institutional inattention compounded the original violence. Through statutes of limitations, rigid accrual doctrines, and state-produced delay, immediate and enduring injuries were transformed into losses the law deemed no longer cognizable. Time did not heal these wounds; it left them festering in silence.

This Article has shown how civil procedure organizes racial inequality along temporal lines. The four modes of silencing -- temporal, procedural, epistemic, and material -- demonstrate that procedural law does far more than regulate access to courts. It structures whose harms are recognized, whose knowledge is credited, and whose losses are allowed to matter. In Greenwood, racialized time ensured that Black survivors faced systemic barriers not only to compensation, but to acknowledgment, truth, and historical justice itself. The denial of adjudication was not incidental to racial injury; it was one of its most enduring forms.

As one Greenwood survivor reflected:

My greatest desire is to live long enough to witness justice, for someone to acknowledge my profound suffering and the collective pain endured by generations past and those yet to come. The weight of seeking justice for an entire community rests upon my shoulders, and though it is heavy, I carry it with unwavering determination 'til God gives me my last breath, and I finally catch my wings.

This plea is not simply emotional testimony; it is a procedural indictment. It exposes the fiction of neutrality in a system that treats time as administratively inevitable while ignoring how delay is produced through terror, suppression, and state power. When courts insist that statutes of limitations operate neutrally, they obscure the racialized conditions that prevented timely filing in the first place. Delay manufactured by violence is then recast as plaintiff fault.

But racialized time is not inevitable. The legal system already contains doctrinal mechanisms capable of resisting it. As this Article has argued, equitable tolling, accrual recalibration, and -- most significantly -- trauma-informed, suppression-sensitive revival statutes offer constitutionally viable pathways to reopen claims where state misconduct engineered delay. Lookback statutes demonstrate that legislatures can recalibrate repose when justice requires. When applied to racial terror and state-enabled harm, such mechanisms would not create new rights; they would restore access to adjudication that was wrongfully denied.

Civil procedure is therefore not a passive recorder of history. It is a gatekeeper of memory. It decides whether racial violence is confronted through adjudication or sealed through repose. To treat procedural time as neutral in the face of state-manufactured delay is not restraint; it is acquiescence.

Reframing statutes of limitations as sites of racial power clarifies what is at stake. These doctrines can either entrench historical injustice or facilitate accountability. Greenwood teaches that justice delayed by terror and suppression should not be justice permanently denied by procedure. If law helped structure racialized delay, it must also participate in dismantling it.

Civil procedure need not complete the silencing of Black harm. It can instead become a mechanism of recognition, restoration, and institutional truth.

Keeshea Turner Roberts is an Assistant Professor of Law at Widener University Delaware Law School, where she teaches Family Law, Family Law Skills, Civil Procedure, and Poverty Law. Her research examines structural inequality, access to justice, Critical Race Theory, anti-racism, and reparations.