American Samoa is the only U.S. jurisdiction that does not recognize gender-neutral marriage despite the Supreme Court’s Obergefell decision invalidating laws that limit marriage to male–female couples. Among U.S. territories, American Samoa has five unique features: It is the only territory that the United States acquired through negotiation with ruling sovereigns, whose land is largely communally owned, whose residents lack birthright...
Essay
In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship largely focus on federal courts but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, for many aspects of procedure this breakdown can be misleading. Two different categories of courts are just as salient for understanding American civil justice: those that routinely...
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...
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...
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...
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...
One of the most basic assumptions of our legal system is that when two parties face off in court, the case will be adjudicated before a judge who is trained in the law. This Essay begins by showing that, empirically, the assumption that most judges have legal training does not hold true for many low-level state courts. Using data we compiled from all fifty states and the District of Columbia, we find that thirty-two states allow at least some low-level...
Recent calls to defund the police were quickly followed by calls to fund social service agencies, including the family regulation apparatus. These demands fail to consider the shared carceral logic of the criminal legal and family regulation system. This Essay utilizes the term “family regulation system” to more accurately describe the surveillance apparatus commonly known as the “child welfare system.” The general premise of this system...
Arbitrary control over its own docket is the hallmark of the modern Supreme Court. While the Court’s power to choose its cases is a frequent subject of study, its practice of preselecting questions for review has received almost no attention. This is particularly surprising since the Court openly adds or subtracts questions in some of its most consequential and politicizing cases. Yet despite the significance of this practice, its origins are...
Issues relating to disability are undertheorized in the Supreme Court’s Fourth Amendment jurisprudence. Across the lower courts, although disability features prominently in excessive force cases, typically involving individuals with psychiatric disabilities, it features less prominently in other areas of Fourth Amendment doctrine. Similarly, scholars have yet to substantively address how the Fourth Amendment’s vast scope of police discretion...