Constructing Separate and Unequal Courtrooms

51 Pages Posted: 27 Jul 2020

See all articles by Ion Meyn

Ion Meyn

University of Wisconsin Law School

Date Written: July 21, 2020


Today, the criminal system and the civil system operate as distinct institutional settings with very different rules. But this was not always so. Indeed, prior to the 1940s, both domains operated in similar ways. This changed when federal reform created the Federal Rules of Civil and Criminal Procedure. The Article is the first to contend that federal reform, which took place within the overarching project of Jim Crow, wrote race into procedure and contributed to the construction of separate and unequal courtrooms.

The new rules empowered civil litigants, virtually all of them white, to exercise agency over their case. But rules governing the criminal forum gave control over facts and law to just one party, the prosecutor. The new regime empowered the prosecutor to serve as a fiduciary to the entrenchment of prejudice, permitting him to distribute or withhold facts according to the race of the defendant. This account complicates the prevailing view that the Supreme Court intervened in the 1930s to temper Jim Crow practices in the criminal arena. While the Court's due process doctrine mitigated the ways in which states trampled the rights of black defendants, the Court also superintended the development of new rules that, in every case, rendered black defendants more vulnerable to state oppression.

The Article finally observes that our state and federal procedural systems today operate pursuant to key features of this Jim Crow blueprint, and considers a legacy that still distributes burdens and benefits in racially salient ways.

Keywords: Federal Rules, Civil Procedure, Criminal Procedure, Jim Crow, Supreme Court History, Prosecutorial Prejudice, Courtroom procedures, Legal History

Suggested Citation

Meyn, Ion, Constructing Separate and Unequal Courtrooms (July 21, 2020). Univ. of Wisconsin Legal Studies Research Paper No. 1600, Ariz. L. Rev (Forthcoming 2020), Available at SSRN:

Ion Meyn (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States
608-890-3540 (Phone)
608-263-3380 (Fax)


Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
PlumX Metrics