Boston College Law Review
Suzette M. Malveaux, Is It Time for a New Civil Rights Act? Pursuing Procedural Justice in the Federal Civil Court System, 63 B.C. L. Rev. 2403 (2022), available at https://scholar.law.colorado.edu/faculty-articles/1584.
The United States has recently been engaged in some of the largest civil rights movements since the 1960s—from Black Lives Matter to #MeToo—and calls for justice for marginalized communities are stronger than ever. Many decry the longstanding violence and systemic discrimination such communities experience, and advocate for stronger substantive civil rights. What has received less attention, however, is the violence done to those rights by the U.S. Supreme Court's obstructionist civil procedural jurisprudence. Over the last half century, the Court has systemically eroded Americans' capacity to enforce such substantive rights in the civil court system. This erosion arcs away from the constitutional imperative that everyone has the right to be heard. Thus, the time has come for a new civil rights act, grounded in process.
This Article examines the Court's regressive process-based decisions over the last fifty years, particularly regarding pleadings, class actions, and arbitration. It demonstrates how the Court's jurisprudence has reached a tipping point and concludes that corrective civil rights legislation—rather than caselaw or a federal rule—is the answer. The Article asks whether this is the right time for a new civil rights act, comparing contemporary conditions with those of the sweeping Civil Rights Act of 1991 and the targeted Lilly Ledbetter Fair Pay Act. Having answered the question affirmatively, the article sets forth normatively what a procedural civil rights restoration act should comprise. The Article concludes that its prescription would realign drafters' intentions, institutional competencies and democratic values with the public dispute resolution system.
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