Racial Capitalism in the Civil Courts

45 Pages Posted: 15 Jul 2022 Last revised: 9 Nov 2022

See all articles by Tonya L. Brito

Tonya L. Brito

University of Wisconsin Law School; Institute for Legal Studies; Institute for Research on Poverty

Kathryn A. Sabbeth

University of North Carolina at Chapel Hill - School of Law

Jessica Steinberg

George Washington University - Law School

Lauren Sudeall

Georgia State University College of Law

Date Written: July 1, 2022

Abstract

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 by explaining how and why state civil courts subordinate racialized groups and individuals. Civil cases are often framed as voluntary disputes among private parties, yet many racially and economically marginalized litigants enter the civil legal system involuntarily, and the state plays a central role in their subordination through its judicial arm. A major function of the civil courts is to transfer assets from these individual defendants to corporations or the state itself. The courts accomplish this through racialized devaluation, commodification, extraction, and dispossession.

Using consumer debt collection as a case study, we illustrate how civil court practices facilitate and enforce racial capitalism. Courts forgo procedural requirements in favor of speedy proceedings and default judgments, even when fraudulent practices are at play. The debt spiral example, along with others from eviction and child support cases, highlights how civil courts normalize, legitimize, and perpetuate the extraction of resources from poor, predominately Black communities and support the accumulation of white wealth.

Keywords: Race, Access to Justice, Civil Justice, Civil Procedure, Courts, State Courts, Racial Justice

Suggested Citation

Brito, Tonya L. and Sabbeth, Kathryn Anne and Steinberg, Jessica and Sudeall, Lauren, Racial Capitalism in the Civil Courts (July 1, 2022). 122 Columbia Law Review 1243 (2022), Georgia State University College of Law, Legal Studies Research Paper No. 2022-08, GWU Legal Studies Research Paper No. 2022-63, GWU Law School Public Law Research Paper No. 2022-63, Available at SSRN: https://ssrn.com/abstract=4151678

Tonya L. Brito

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

Institute for Legal Studies ( email )

Madison
United States

Institute for Research on Poverty ( email )

1180 Observatory Drive
Madison, WI 53706
United States

Kathryn Anne Sabbeth

University of North Carolina at Chapel Hill - School of Law ( email )

102 Ridge Road
Chapel Hill, NC 27514
United States

HOME PAGE: http://www.law.unc.edu/faculty/directory/sabbethkathryna/

Jessica Steinberg

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Lauren Sudeall (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

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