Excerpted From: Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg and Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Columbia Law Review 1243 (June, 2022) (255 Footnotes) (Full Document)



The relationship between race and civil courts has been understudied and undertheorized. Those who research and practice in those courts--and certainly those individuals who are subjected to them--have long been aware of the pervasive influence of race. Yet the myriad ways in which race influences the operation, structure, and design of civil courts require far more attention in the scholarly literature. This need is particularly acute in the case of state civil courts, where most civil cases are litigated.

While the dearth of race-based data from state civil courts has made it difficult to construct a full picture, existing data show that racialized individuals and communities are impacted disproportionately by civil justice issues. Racialized litigants are less likely to have access to critical resources and more likely to receive negative results. And, as in all systems, the ability to access justice in the civil legal system is influenced by multiple factors, including societal discrimination, economic inequality, and race-based behaviors of individual system actors. The civil court system is characterized by racial disparities in access, treatment, and outcomes, all of which deserve increased attention. At the same time, we view the observation of these disparities as the beginning of a larger and sustained inquiry about how and why such disparities exist. Racial disparities in the civil courts serve as a miner's canary--an invitation to further question the role that race plays in the design, structure, and operation of the civil court system. The responses to that inquiry are critical not only to our understanding of how race affects the administration of civil justice, but also as part of a necessary foundation for contemplating systemic change.

This Essay contributes to the above conversation--and offers one possible response to the above inquiry--by exploring how civil courts, as an arm of the state, function as sites of racial capitalism. It argues that theories of racial capitalism help to explain how and why state civil courts are designed and operate to subordinate racialized groups and individuals. In doing so, it also makes an important contribution to the growing racial capitalism literature by expanding its application in legal scholarship. This Essay strengthens the existing literature by examining the racial capitalism conceptual framework in state civil courts, a site commonly understood as nonmarket. More broadly, it advances still nascent conversations about race and access to civil justice that require not only more empirical data on racial demographics but also more theoretical analysis of the social significance of race.

Racial capitalism is a relatively new concept in legal academia and has its roots in several other disciplines, including Black studies, history, political science, sociology, and cultural studies, where the term has been defined and used differently by a wide range of scholars. While critical race theorists have demonstrated that race is fundamental to and deeply embedded in U.S. law, scholars of racial capitalism have emphasized how racial subordination is fundamental, rather than incidental, to economic exploitation. From a legal perspective, racial capitalism can be understood as a system of racialized "dispossession, extraction, accumulation, and exploitation" for power and profit in which human elements are both commodified and devalued. We argue that through their interpretation and implementation of the law and the processes they impose, the civil courts function as instruments of racial capitalism, facilitating its goals and assisting in its entrenchment.

Civil cases are typically framed as voluntary disputes among private parties, yet many racially and economically marginalized litigants, particularly Black individuals, enter the civil legal system involuntarily, often in a defensive or vulnerable posture. Even in cases where marginalized plaintiffs initiate litigation, they enter the civil courts due to a lack of other feasible options. They are forced to subject themselves and others to a system designed to devalue them, commodify their needs, and maximize financial extraction. Most of the cases in the civil system involve eviction, debt collection, or family law matters matters likely to target poor and racialized litigants. And in many of those cases, an individual has been sued by the state or a corporation. It is those cases that are the focus of this Essay, where the ability of the party initiating court action to extract capital and exercise control over racialized people is strongest. And it is in these cases that the role of the courts in facilitating the transfer and accumulation of assets from racialized individuals to majority-white corporations or the state itself is most visible.

Courts have long played a role in defining race and policing racial order, contributing to the perpetuation of racial inequality and, more specifically, white dominance. The civil courts that are the focus of this Essay are very much a part of that story. They oversee and process case dockets filled by poor people and, as limited available data have shown, disproportionately Black people. In addition, the racialization of poverty in U.S. society has made it impossible to disentangle narratives of the "undeserving poor" from those of Black America. This entwinement of racial and economic status--and the imposition of beliefs and traits suggesting that these individuals are appropriate subjects for state-sponsored discipline operationalized through the work of civil courts and provides additional justification for the extraction that racial capitalism requires.

The courts administering these cases are often characterized by mass adjudication, speed, and a lack of procedural protections. The systematic and low-cost way in which these civil courts process cases-- devaluing and commodifying the individuals subject to them and disregarding their procedural and substantive rights--contributes to the narrative that these individuals are not worthy of the justice system that society upholds as the ideal. Instead, the courts interpret and apply law and procedure in ways that facilitate and maintain a racialized underclass that can be used to generate profit for dominant individuals and corporations. In doing so, courts normalize, legitimize, and perpetuate a system of racial subordination for profit. The role of the state in driving this process should not be underestimated. Framing the civil courts as neutral and passive arbiters of private civil disputes--rather than as agents of the state helping to maintain the social order necessary for racial capitalism to function courts' responsibility for the harm they perpetuate and undermines the ability to address it.

In Part I of this Essay, we examine various perspectives that have been offered to date on the relationship between race and civil justice. As we demonstrate, although there are some notable exceptions, much of the literature relating to the civil legal system has focused on disproportionate racial impact--including disparities in access and treatment--rather than theorizing about the court system's role in creating or maintaining those disparities. In contrast, the relationship between race and systemic design-- including relevant court processes and procedures--has been more thoroughly explored in the context of the criminal legal system. We suggest that the justifications for this imbalance are inadequate and highlight several important examples of deeper theorizing as to how race and racism have shaped the civil legal system.

In Part II, we begin with an overview of the scholarly literature on racial capitalism, highlighting the aspects most relevant to state civil courts. Theories of racial capitalism show us not only that racism and capitalism are fundamentally intertwined, but also that capitalism requires inequality and relies on racialized systems of exploitation and extraction to generate and accumulate capital. While often associated with traditional economic systems, racial capitalism is both dynamic and malleable and applies equally to nonmarket forums, including state courts.

After examining racial capitalism in broader terms, we translate these concepts to the civil court context and show how civil courts serve as sites of racial capitalism, carrying forward the historical role of white supremacy. Through a broad-strokes discussion of civil court processes, we demonstrate how the courts assist in capital accumulation through patterns of racialized extraction and dispossession; these processes are, in turn, facilitated and justified through racialized devaluation and commodification of elements critical to human survival. The courts create opportunities for the extraction of financial assets and products of labor from subordinated people and for their transfer to entities that become more powerful as a result; it is racial subordination that makes this process tolerable and allows the courts to subjugate individuals' humanity to their role in a larger capitalist structure. Ultimately, we argue that a primary function of the civil courts is to produce profit for those with capital; to do so, they must maintain the racialized social and economic order that role requires.

Using consumer debt collection as a case study, Part III of the Essay illustrates how civil court structures and practices facilitate and enforce racial capitalism. In the spiraling world of debt collection, where poor and racialized defendants borrow money for necessities that then costs them far more to repay, courts issue default judgments en masse. The courts forgo procedural requirements in favor of speedy proceedings and financial extraction, even when fraudulent practices such as "robo-signing" and "sewer service" are at play. The way in which courts process debt collection cases--and their use of default judgments in particular--facilitates extraction from poor, predominately Black communities and the accumulation of capital by powerful corporate interests; and it does so to a broader degree than the substantive law alone would require. Many aspects of the courts' approach to civil adjudication are not required by the law itself, but instead reflect choices made based on the premise that racialized people are less valuable and that economic values outweigh basic human needs. The common racialized identity of the people targeted by the debt collection industry feeds the narrative that they are lesser and undeserving of better treatment while ensuring an oppressed class that can support the capitalist structure; it also renders their existing treatment tolerable rather than fodder for moral outrage.

In sum, we use the conceptual framing of racial capitalism to demonstrate how the civil courts operate to reinforce and perpetuate systems of social and economic injustice against racialized communities, who are, in many instances, Black men, women, and families. While we argue that civil courts contribute to and facilitate racial capitalism, we also acknowledge that the inequality and subordination integral to racial capitalism run far deeper and the forces fueling racial capitalism range far wider than the reach of courts. Therefore, although we support various court reforms for reasons beyond the scope of this Essay, we do not suggest that court-driven changes, such as the provision of additional procedural protections, would lead to systems change of the order that challenging racial capitalism requires.

The application of the racial capitalism framework in this Essay is not intended to generate solutions, but it helps us to understand how and why civil courts operate as they do. Racial subjugation is not incidental or external, but central to the economic exploitation facilitated by courts through the processing of cases involving housing, debt, and family relationships. Eviction is not only about repossession of a home, but also about seizing the products of racialized tenants' labor and instilling fear to prevent resistance. Child support is less about transferring funds to custodial parents than it is about the state seizing pennies from Black fathers as payback for public benefits received by the custodial parent. Debt collection is less about ensuring debts are repaid than about ensuring the smooth, one-directional flow of capital from Black communities to powerful corporations. Courts orchestrate the handling of these cases so that the people involved are devalued and their needs rendered mere commodities; the process is swift and easy for powerful, repeat actors. By engaging in these practices, the civil courts normalize, legitimize, and perpetuate a racialized social and economic order that allows racial capitalism to thrive.

I. The Landscape of Race and Civil Justice

Civil justice scholarship has focused relatively little on the influence of race on state civil courts and the processes they employ. This is due in part to a dearth of race-specific empirical data, which can be difficult to obtain in state courts and is tracked much more pervasively in the criminal legal system. Regardless of the cause, the range of available literature provides ample room for more theoretical engagement with the relationship between race and the design, structure, and operation of the civil legal system. This Part aims to illustrate several perspectives that have been covered by existing race and civil justice scholarship and demonstrate how this Essay seeks to advance the conversation.

Rebecca Sandefur noted more than a decade ago that while civil access-to-justice literature touched on racial differences in how individuals experience legal problems and the legal process, there was little to no research on how race influences the frequency with which those problems arise, how they are handled, and what outcomes result. While the literature has since expanded to cover more ground, a related distinction remains: Much of scholarly writing on the relationship between race and civil justice has focused on civil claims of race-based discrimination or how the civil legal system disproportionately impacts racialized individuals and communities. Less has been written about the relationship between race and the structure and design of legal structures and processes that, in theory, provide a means of attaining civil justice.

A survey of the existing literature on race and the civil legal system supports this distinction. Much of that literature focuses on one of several areas: (1) racially disproportionate participation and outcomes; (2) attitudes toward the civil legal system; (3) how race affects actors present in the civil legal system; (4) racial inequalities with respect to civil legal resources, such as access to counsel; and (5) claims based on racial discrimination. To the extent empirical access-to-justice research has expanded its scope in exploring connections between racial inequality and civil justice, it has focused primarily on how racial prejudice and other related forms of discrimination influence the legal process. For example, the work of Tonya L. Brito, David J. Pate, Jr., and Jia-Hui Stefanie Wong explores how racialized litigant experiences and court actors' insistence on ignoring race-based inequalities impact the family court process.

Several scholars--particularly in the family law arena--have taken on the task of not only highlighting racial disparities in access and impact but also theorizing about the role of race in creating such disparities and why those disparities exist and persist. For example, Dorothy Roberts, Khiara Bridges, and Peggy Cooper Davis have written about how racism has shaped the civil legal systems that regulate families, children, and pregnancy. Roberts has painstakingly detailed how racism and the legacy of slavery have not only informed the development of the law, but also explain why society is willing to tolerate such a destructive and punitive system. Roberts's work clearly demonstrates how civil legal systems have the power to both implement and perpetuate racial subordination. Just as these scholars have done for systems of family and reproductive regulation, there is far more probing to be done with respect to how the civil court system design incorporates, relies upon, and intentionally maintains racial hierarchies.

In contrast, there has been a significant amount of theorizing about how racially oppressive social and economic systems--including, most prominently, the institution of slavery--have influenced the criminal legal system's purpose and design. This imbalance between civil and criminal is driven by several factors--but is also unjustified. As some of us have touched on in our own scholarship, doctrinal and constitutional distinctions between civil and criminal foster persistent conceptual differences. For example, the emphasis on incarceration serves as a touchstone for rights provision and the increased level of procedural protections afforded to criminal matters, suggesting higher stakes and greater importance. Relatedly, there is a distinction in how the harms perpetuated by the criminal and civil legal systems are understood and valued--a distinction we would argue is disputed by how these systems have evolved and now operate in practice. Criminal law is often characterized as involving violence by the state and the deprivation of physical liberty, in contrast to civil law, which is thought to relate primarily to disputes between private actors and unlikely to result in incarceration. Thus, civil harm may be thought of as more removed from the types of state action that are typically actionable under the law. In the modern era, however, these lines are far more blurred: The state plays a prominent role in many civil proceedings--particularly those involving economically and racially marginalized individuals--and financial penalties can result in the criminal sphere just as deprivation of liberty can occur in the civil. Civil issues affecting poor people of color are also often seen as simple or nonlegal in nature; this delegalization of such claims leads to subsequent delegitimization and, thus, less urgency to fully understand how race impacts the systems that process such claims.

Portia Pedro recently underscored this distinction between civil and criminal by observing that there is less "comprehensive theoretical description of the mutually constitutive and reinforcing relationship" between civil law and racial subjugation or white supremacy than in other areas, such as constitutional and criminal law. Pedro emphasizes the importance of thinking about how doctrine, and procedural rules and mechanisms, can be used to reinforce racial subordination, even in areas of the law that are often cast as objective and substantively distinct from issues of race, like civil procedure. And she rightly observes that the underdevelopment (and underapplication) of Critical Race Theory in civil procedure is likely due to a flawed understanding of civil procedure as "technical," "neutral," "objective," or "perspectiveless[]." We argue that the same is true of civil courts and court procedures, where connections not only to race, but also--given their association with the private realm--to the role of the state and to the maintenance of social order are less likely to be drawn.

The civil courts govern fundamental aspects of daily life--including housing, employment, financial obligations, personal safety, and family relationships. As Colleen Shanahan, Jessica Steinberg, Anna Carpenter, and Alyx Mark have argued, state civil courts are confronted with social needs they are ill-equipped to handle, and in this context "can play the role of violent actor when exercising their dispute resolution function." Civil court cases impose on tens of millions of people devastating legal and financial consequences, as well as physical, social, and emotional harm. Thus, more thorough exploration of how the processes and procedures these courts use in adjudicating such claims rely on and advance racial subordination is critical. In this Essay, we aim to build upon and complement the above literature by exploring how the procedures developed and maintained by state civil courts facilitate and maintain racial capitalism.

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By engaging in the practices described above--and many others not touched upon in this Essay--civil courts are both passive participants and active perpetrators in a system of racial capitalism. In some ways, through a formalist approach to decisionmaking, they might be seen as merely facilitating exploitative and oppressive social and economic dynamics with roots far beyond the judicial system. To end the story there, however, diminishes the importance of the courts' role, the agency courts have in allowing those dynamics to flourish, and the power courts wield as an arm of the state. Civil courts have developed unique processes and procedures that facilitate racial capitalism and have chosen not to actively identify, let alone root out, the racial dynamics influencing their operation. Thus, they are not neutral bystanders, but supporters in maintaining the racialized systems on which capitalism relies. Similarly, race is not merely an external factor that inevitably colors the results of the civil court system but is integral to its design and operation--as well as to our collective national tolerance of state civil courts operating as sites of injustice and oppression. With this Essay, we hope to contribute to a much broader conversation about the role that civil courts play in incorporating, facilitating, and perpetuating racial inequality.

Jefferson Burrus-Bascom Professor of Law, University of Wisconsin Law School.

Associate Professor of Law, University of North Carolina School of Law.

Professor of Law, George Washington University Law School.

Professor of Law and Faculty Director, Center for Access to Justice, Georgia State University College of Law.