Vol. 122

A TALE OF TWO CIVIL PROCEDURES

Pamela K. Bookman* & Colleen F. Shanahan**

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...

THE FIELD OF STATE CIVIL COURTS

Anna E. Carpenter,* Alyx Mark,** Colleen F. Shanahan*** & Jessica K. Steinberg****

Introduction This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. […]

RACIAL CAPITALISM IN THE CIVIL COURTS

Tonya L. Brito,* Kathryn A. Sabbeth,** Jessica K. Steinberg*** & Lauren Sudeall****

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...

THE INSTITUTIONAL MISMATCH OF STATE CIVIL COURTS

Colleen F. Shanahan,* Jessica K. Steinberg,** Alyx Mark*** & Anna E. Carpenter****

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...

JUDGING WITHOUT A J.D.

Sara Sternberg Greene* & Kristen M. Renberg**

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...

A COURT OF TWO MINDS

Bert I. Huang*

What do the Justices think they’re doing? They seem to act like appeals judges, who address questions of law as needed to reach a decision—and yet also like curators, who single out only certain questions as worthy of the Supreme Court’s attention. Most of the time, the Court’s “appellate mind” and its “curator mind” are aligned because the Justices choose to hear cases where a curated question of interest is also central to the...

THE COSTS OF MISTAKES

Maytal Gilboa* & Yotam Kaplan**

This Piece provides a novel framework guiding adjudication in cases of mistakes, such as unintended money transfers. We draw on Guido Calabresi’s seminal work, The Costs of Accidents, to introduce a parallel framework for mistakes and detail its operation and embodied policy considerations. We explain that mistakes, unlike accidents, can be socially harmless. When a mistake is harmless, the law acts to protect the mistaken party, thereby...

DISCLOSURES FOR EQUITY

Atinuke O. Adediran*

This Article addresses how to increase funding to nonprofit organizations that are led by minorities or serve communities of color and how to hold corporations and private foundations who make public commitments to fund these organizations accountable for those commitments. The Article makes two policy recommendations to address these problems, while engaging with Supreme Court jurisprudence on mandatory disclosures to ensure that the proposals...