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Excerpted From: Roy L. Brooks, Critical Race Theory: A Proposed Structure and Application to Federal Pleading, 11 Harvard BlackLetter Law Journal 85 (Spring, 1994) (212 Footnotes) (Full Document)


Critical Race Theory (CRT) is a collection of critical stances against the existing legal order from a race-based point of view. Specifically, it focuses on the various ways in which the received tradition in law adversely affects people of color not as individuals but as a group. Thus, CRT attempts to analyze law and legal traditions through the history, contemporary experiences, and racial sensibilities of racial minorities in this country. The question always lurking in the background of CRT is this: What would the legal landscape look like today if people of color were the decision-makers?

Developed and applied in the context of civil rights, CRT has never been systematically applied to any area of civil procedure. This is surprising given that procedural rules affect one's access to the courts and that courts, as a general matter, have been more instrumental in effectuating positive social change for people of color than either the legislative or executive branch of government. Many of the most important civil rights were nurtured in the litigation context.

While access to the courts and, hence, civil procedure are important in the struggle for racial equality, it is not readily clear whether any procedural doctrine is suitable for race-conscious analysis. This is particularly true with respect to the well-established doctrine of federal pleading. From all appearances, this doctrine seems to be race-neutral in concept, implementation, and effects. What, then, could one say about the doctrine of federal pleading when critiquing it from a CRT perspective? What would a race crit (or “critical legal theorist”) civil procedure professor say to a class of first-year law students about the doctrine of federal pleading that would distinguish her lecture from that of a traditional civil procedure professor? And how might a judge decide federal pleading issues if these issues were approached from a CRT point of view rather than in the usual way? This Article attempts to provide answers to these questions.

In Part II, the Article presents a proposed intellectual framework for understanding and applying the numerous race-conscious theories, values, and attitudes captured by the term “CRT.” In crafting this conceptual scheme, I have tried to preserve the complex and diverse spectrum of viewpoints held by race crits. Next, in Part III, the Article attempts to apply CRT to the law of federal pleading. Here it will be seen that CRT adds fresh insights and new knowledge to federal pleading law and thus makes an appreciable difference in how a judge, law professor, or law student thinks about the venerable doctrine of federal pleading. Finally, in Part IV, the Article concludes with a commentary on the legal and social implications of applying CRT to federal pleading law.

[. . .]

Although one might disagree with the specific legal reforms CRT offers, one thing is clear: a CRT analysis of federal pleading law provides useful insights into how this area of civil procedure can be transformed to allow civil rights plaintiffs the opportunity to have their cases heard on the merits. Needless to say, our judicial system does little (and sometimes nothing) to level the playing field of its litigants. In the context of federal pleading this is problematic because even though procedural rules are crafted in neutral and universal language, their applications are decidedly not neutral given the social and political context in which they are invoked. Indeed, our so-called “objective” procedural rules end up favoring the socially stronger party because the latter is able to carry his economical and political advantage into the halls of justice. As a distinguished federal judge, Robert L. Carter, observes:

In our system of representative democracy, it is the role of the courts to protect the rights of politically-excluded minorities; yet precisely in these times, when the protection of the courts is most needful, it is the disempowered who are sacrificed on the altar of a substantively biased notion of efficiency.

CRT challenges us to envision a more democratic system of civil litigation, in which the socially weaker party has a real opportunity to confront the socially powerful party. With regard to federal pleadings, this means that judges should be precluded from dismissing civil rights claims based upon unsubstantiated assumptions about the nature of such claims. Civil rights plaintiffs, like all plaintiffs, are at least entitled to a decision based on the merits or demerits of their cases.

But if civil rights plaintiffs are permitted to tailor the federal pleading rules to fit their special needs, how can we deny that benefit to other classes of plaintiffs? Does every racial, ethnic, or gender group get its own set of procedural rules? If so, doesn't that undermine a core assumption of the Federal Rules--namely, that the rules are to be “transsubstantive,” that a single set of rules shall cover all cases?

These transsubstantive concerns, however, are not sufficiently compelling to outweigh the right of civil rights litigants to have their day in court. Moreover, every legal rule or principle presents difficult questions of line-drawing, which is essentially at the core of the transsubstantive claim. Accordingly, a rule that advocates for an exception to the heightened federal pleading requirement for civil rights cases, should not be dismissed simply because it would be an exception. Such an exception is warranted since it would put an end to the “procedural racism” that presently infests the federal pleading rules.

Professor of Law, University of San Diego; B.A., University of Connecticut, 1972; J.D., Yale Law School, 1975.


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