Racial Capitalism in the Civil Courts

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