LibGuides: DEI Resources for Faculty: Civil Procedure

Video Resources

Duke Law, Race and the 1L Curriculum: Civil Procedure (2020)

Selected Readings

A Guide to Civil Procedure: Integrating Critical Legal Perspectives by Brooke Coleman (Editor); Suzette Malveaux (Editor); Portia Pedro (Editor); Elizabeth Porter (Editor) Shines a light on the ways in which civil procedure may privilege--or silence--voices in our justice system In today's increasingly hostile political and cultural climate, law schools throughout the country are urgently seeking effective tools to address embedded inequality in the United States legal system. A Guide to Civil Procedure aims to serve as one such tool by centering questions of systemic injustice in the teaching, learning, and practice of civil procedure. Featuring an outstanding group of diverse scholars, the contributors illustrate how law school curriculums often ignore issues such as race, gender, disability, class, immigration status, and sexual orientation. Too often, students view the #MeToo movement, Black Lives Matter, immigration/citizenship controversy, or LGBTQ+ issues as mere footnotes to their legal education, often leading to the marginalization of many students and the production of graduates that do not view issues of systemic injustice as central to their profession. A Guide to Civil Procedure reveals how procedure is, and always has been, a central pressure point in the struggle to eradicate structural inequality and oppression through the courts. This book will give students and scholars alike a more complex view of their roles as attorneys, sharpen their litigation skills, and provide a stronger sense of community and purpose in the law school classroom.
ISBN: 9781479805938
Publication Date: 2022-07-12

Kevin R. Johnson, Integrating Racial Justice into the Civil Procedure Survey Course, 54 J. Legal Educ. 242 (2004)
Shirin Sinnar, The Lost Story of Iqbal, 105 Geo. L.J. 379 (2017) "The Supreme Court's 2009 decision in Ashcroft v. Iqbal, which transformed pleading standards across civil litigation, is recognized as one of the most important cases of contemporary civil procedure. Despite the abundant attention the case has received on procedural grounds, the Court's representations of Javaid Iqbal, the plaintiff in the case, and the post-9/11 detentions out of which his claims arose have received far less critique than they deserve. The decision presented a particular narrative of the detentions that may affect readers' perceptions of the propriety of law enforcement practices, the scope of the harm they impose on minority communities, and their ultimate legality."
Brooke D. Coleman, #sowhitemale: Federal Civil Rulemaking, 113 Nw. U.L. Rev. Online 52 (2018) ABSTRACT--116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers--while expert--are not apolitical actors. This Essay argues that the homogeneous composition of the Civil Rules Committee, not only historically, but also today, limits the quality of the rules produced and perpetuates inequality. The remedy to this problem is straightforward: appoint different people to the Committee.
Dana Shocair Reda, What Does It Mean to Say That Procedure Is Political?, 85 Fordham L. Rev. 2203 (2017)
Anthony V. Alfieri, Discovering Identity in Civil Procedure, 83 S. Cal. L. Rev. 453 (2010) In the case of Floride Norelus and in the field of civil rights more generally, lawyers and judges likewise reproduce racial hierarchy in culture and society through the neutral formalism of advocacy and adjudication. In advocacy, neutral formalism dictates colorblind conventions of pleading, pretrial discovery, and trial practice that isolate individuals from their community settings and sever personal identities from their cultural and social contexts. In adjudication, neutral formalism directs colorblind judgments of conduct and credibility independent of the identity-based differences of language, culture, and social history."
Edward A. Purcell, Jr., The Particularly Dubious Case of Hans v. Louisiana: An Essay on Law, Race, History, and "Federal Courts", 81 N.C. L. Rev. 1927 (2003) Excerpt: "What is called the 'law of federal courts' has been established through a process that filters, purifies, redesigns, and largely erases decisive historical phenomena--social conflict, politics, racism, sexism, and, of course, change itself . . . . On one level, of course, this purification process makes perfect sense and is essential in developing a system of law based on rationalized sets of general rules and principles. On another level, however, the process creates an insidious problem. Purifying life and sterilizing the past can strip decisions of their animating purposes and underlying values, thus denying the authentic meanings and practical truths they embody. If purification and abstraction create 'rules' and 'principles' necessary for general propositions of 'law,' they also make the resulting rules and principles peculiarly vulnerable to distortion, transformation, and manipulation."
Elizabeth M. Schneider and Hon. Nancy Gertner, "Only Procedural": Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases, 57 N.Y.L. Sch. L. Rev. 767 (2013)
Roy L. Brooks, Conley and Twombly: A Critical Race Theory Perspective, 52 How. L.J. 31 (2008) "Specifically, this article focuses on federal pleading as construed by the Supreme Court in Conley v. Gibson and its progeny, the most important being Bell Atlantic Corp. v. Twombly. Conley mandates notice pleading, while Twombly appears to call for a higher standard of federal pleading--plausibility. How would one, with the experiences of African Americans, both historical and contemporary--critique this body of law? What would federal pleading look like through the racial sensibilities of African Americans? CRT provides a few answers to these questions."
Suzette M. Malveaux, The Modern Class Action Rule: Its Civil Rights Roots and Relevance Today, 66 U. Kan. L. Rev. 325 (2017) "Part I describes the historical background of the modern class action rule in relation to civil rights . . . . Part II analyzes supreme Court jurisprudence interpreting Rule 23(b)(2) over the course of the last fifty years, identifying three primary periods in which the pendulum has swung. . . . . Part III critiques modern class action jurisprudence and concludes that it fails to sufficiently fulfill the drafters' intent of creating an efficient and just procedural mechanism for pursuing systemic racial equality."
Stephen B. Burbank and Sean Farhang, Politics, Identity, and Class Certification on the U.S. Courts of Appeals, 119 Mich. L. Rev. 231 (2020) This Article explores the relationship between the ideology, gender, and race of U.S. Court of Appeals judges and decisions addressing class certification under Rule 23 of the Federal Rules of Civil Procedure.
Brooke D. Coleman, Lassiter v. Department of Social Services: Why Is It Such a Lousy Case? 12 Nev. L. Rev. 591 (2012) Addresses some important issues to excavate in class, as the case "is written without any acknowledgment of race or institutionalized racism, nor does it confront the failings of our criminal justice system. The Court also turns a blind eye to the realities of poverty. Thus, there are many angles from which one could attack this decision, as it is a case that finds itself at the intersection of so many 'isms.'”

Other Resources

[CONTEXT FOR CASES] Kevin M. Clermont, Civil Procedure Stories (Foundation Press/West Academic, 2008)
[CRT & CIV PRO] Dorothy A. Brown, "Critical Race Theory and Civil Procedure" in Critical Race Theory: Cases, Materials and Problems 3rd ed. (West Academic, 2014) (Teacher's Manual available) Contact our Westlaw Academic rep Kevin Schroder at Kevin.Schroder@westacademic.com for a copy of your chapter(s) of interest and related teacher's manual. Updated content should be available July 2021.
[RESOURCE GUIDE] Georgia State University, Racial Justice Resources (Civil Procedure) Includes links to law review articles, textbooks and book chapters, cases, and more.
[RESOURCE GUIDE] University of Washington Law Library, Diversity Readings Related to First-Year Courses (Civil Procedure) Includes suggested readings on subject matter jurisdiction, due process, class actions and impact litigation, pleading and access to the courts, summary judgment, jury trials (including immigrants, language requirements, felons, peremptory challenges), fairness for racial minorities in civil litigation, and gender and class.

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