ABSTRACT

This article conceptualizes a critical race theoretical framework for civil procedural subordination. Procedural subordination is the ways in which civil procedure facilitates white supremacy, misogyny, heteronormativity, transphobia, xenophobia, ableism, and the subordination of other marginalized groups. By drawing from social theory and caselaw examples to conduct a structural analysis of civil procedure, I conceptually map out: (1) the mechanisms through which modern day civil procedure furthers the subjugation of people of color and other marginalized groups and (2) what is obscuring this procedural subordination. This development of a critical race theoretical framework for civil procedure follows from a decades-long history of explicit attempts to dismiss categorically or obstruct litigation that serves the interests of people of color and other marginalized groups—especially civil rights litigation. In a general sense, these obstruction attempts failed. Nonetheless, through mechanisms unique to procedure that I describe as “transsubstantive bind” and “procedural identity,” these failed obstruction attempts have returned to entrench subordination within procedure, which purports to be evenhanded and justice-promoting. But the imposition—through transsubstantive bind and procedural identity—of more difficult procedural baselines for litigation brought to benefit members of marginalized groups is obscured due to the “order of retrenchment” and “judicial innocence.” This nascent framework identifies structural impediments to equal justice under the law and attempts to reimagine civil procedure reform efforts to prevent further damage to marginalized groups.