Date of Award

Spring 2023

Document Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

Department

Law

First Advisor

Eskridge, William

Abstract

This dissertation is a series of essays on the processes that judges use to make procedural decisions and the ways in which judges use procedure to navigate the tensions between law and equity, standards and rules, finality and fairness, and states and marginalized groups. It explores the procedure of procedure—how procedure develops and what hinders or furthers procedural decisionmaking. Some of these essays describe the ways in which racial subordination and the subordination of other marginalized groups manifest in civil procedure, remedies, and federal courts. The dissertation challenges the dominant understanding of these three areas of law as neutral and technocratic. Instead, civil procedure, remedies, and federal courts are sites where racial hierarchies, and hierarchies along other axes of identity, are embedded within law. These essays also bring critical race theory, and other critical perspectives, to bear on civil procedure and remedies doctrine to understand how these areas of law contribute to the subordination of marginalized groups including people of color, Indigenous peoples, women, those who are LGBTQIA+, people with disabilities, immigrants, and religious minorities.Chapter 1, “Stays,” investigates the procedure of judges deciding whether to grant a stay pending appeal—whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Because litigating and deciding an appeal can take years and because the issues at the heart of much of civil injunctive litigation are extremely time-sensitive, determining whether to grant or deny a stay is a momentous decision. Instead of being a mere procedural technicality, stays pending appeal are a new battleground for injunctive litigation. There is a 4-prong standard for determining requests for stays pending appeal. However, when judges decide whether to grant a stay, there is often more idiosyncrasy than standard because courts vary so widely regarding what constitutes each prong of the standard, as well as the manner in which courts should weigh each prong, if at all. Compounding the absence of a uniform stays standard, courts frequently give no reasoning or opinion for stay determinations. With life-changing (and potentially world-changing) issues on the line pending appeal, stays are a nearly law-free zone. The immense consequences of stay determinations, due to lengthy appeals and the time-bound nature of the underlying injunctions or orders, mean that courts need to make an effort to get stay decisions right. This first chapter argues that the purpose of a stay pending appeal is to protect a meaningful opportunity to appeal where guaranteed. Additionally, the first chapter includes suggestions for different standards for stays, turning on whether review is guaranteed or discretionary and asserts that courts should write reasoned opinions for stay decisions. Chapter 2, “Process and Remedies,” explores the process of judges deciding to grant remedies and, in particular, a type of injunction that some are calling “nationwide injunctions” or “national injunctions.” An injunction is a court order that prohibits an entity from taking certain actions or that requires an entity to take specified actions. Drawing from scholarly literature and popular discourse, some define a “nationwide injunction” as an injunction with no geographic limitation that benefits nonparties in addition to named plaintiffs or defined plaintiff classes. This second chapter explains that the definition and understanding of what exactly constitutes a “nationwide injunction” is surprisingly thin and calls for clarification on the meaning of the term and category before progressing to arguments for evisceration or exoneration of “nationwide injunctions.” This chapter also contests that the importance of the “nationwide injunction” debate is more than one of nomenclature alone because continuing to debate about the propriety or legality of these injunctions in isolation from any developed, conceptual framework leads to potentially misguided arguments. Chapter 2 continues by questioning whether the category of “nationwide injunctions” is meaningful or even exists as it has been described thus far. “Nationwide injunction” skeptics indicate that the distinctiveness of the targeted injunctions is due to either the injunctions’ geographic scope or, alternatively, due to such injunctions providing benefits to nonparties in addition to parties. But almost no federal court injunctions are limited in geographic scope and there is no clear rule or core principle limiting injunctions to provide benefits only to plaintiffs or plaintiff classes. This chapter provides a comprehensive taxonomy of the challenges to “nationwide injunctions,” divided into subcategories of jurisdictional and prudential concerns. Then, this chapter suggests that “nationwide injunctions” skeptics’ criticism, and even the concept of a “nationwide injunction,” are muddled due to the incomplete and skewed framing of the discussion. This chapter closes by proposing the exploration and engagement of several, until now, ignored factors to develop a more robust understanding and conversation about the targeted injunctions, their implications, and the potential implications of decreasing or eliminating the targeted injunction. Chapter 3, “Critical Race Theory and Civil Procedure,” contends that there is no neutral. Race and racial subordination matter within civil procedure. The essays in this chapter emphasize the importance of, and begin to lay the theoretical groundwork for, a critical racial analysis of civil procedure. This chapter begins by examining the lack of scholarly attention given to the role of civil procedure in racial subordination and proposing some reasons for that dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized peoples. This chapter also includes a personal narrative prologue to the project of developing a theoretical framework to understand how racial subordination and the subordination of other marginalized groups is facilitated by civil procedure. This chapter closes with an essay describing some ancestral and autobiographical experiences with procedure, both within and outside of courts, in an attempt to illuminate some of the underlying motivations for hypothesizing a critical race theoretical account of white supremacy, misogyny, homophobia, xenophobia, ableism, and more within procedure and specifically civil procedure.

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