Become a Patreon!


Excerpted From: John Valery White, Civil Rights Law Equity: An Introduction to a Theory of What Civil Rights Has Become, 78 Washington and Lee Law Review 1889 ( 2022) (517 Footnotes) (Full Document)

JohnValeryWhiteCivil rights “law” has become civil rights “equity.” Specifically, civil rights jurisprudence has taken on the attributes of traditional equity, and civil rights litigation has come to fill the role traditional equity once occupied. Civil rights equity contrasts sharply with current usage of the term “equity” as a synonym for equality, or even justice. Civil rights equity represents not the achievement of an equanimous status in law or society, so much as it is the reduction of the role of civil rights litigation to the supplemental role of traditional equity, characterized by and limited to addressing outrages for deserving individuals.

In the days after George Floyd's death, protests erupted across the country. These protests sought to change police use-of-force practices that have led to the killing of Black people, often in response to suspicion of minor crimes, as was the case with Mr. Floyd. These protests reanimated the #Blacklivesmatter movement of 2015, which accompanied campus protests for racial justice and the #MeToo movement. Collectively, these might be viewed as a New Civil Rights Movement--the power of which was reflected in the widespread, multiethnic nature of the antiracist protests of the summer of 2020, as well as the central place those protests occupied in the political imagination at that time.

As civil rights movements, the summer 2020 protests, like those in 2015, have a strange (even strained) relationship with civil rights law; civil rights litigation is ever-present but decidedly peripheral to this New Civil Rights Movement and its pronounced goals. Since 2015, the families of prominent victims of police violence have been represented by attorneys pursuing compensation for civil rights violations. Indeed, in many of the cases they have been represented by the same lawyer, Ben Crump, who secured settlements in several of the prominent cases. Similarly, many of the women accusing Harvey Weinstein of sexual assault and rape are suing him and the companies he led. But in neither instance is civil rights law central; the litigation is seen as attaining needed compensation for the victims, but few view the lawsuits as effective deterrents. Mr. Crump voiced this concern following the announcement of a settlement in the killing of Mr. Floyd. He is reported to harbor

mixed feelings about whether civil settlements actually serve to deter police violence, noting that while they may motivate city governments to make changes, they have not necessarily been proved to do so .... Crump said that to him, progress would mean justice--which is not the same as accountability. “The only thing George Floyd could get is accountability, Breonna can only get accountability, you know, Ahmaud Arbery can only get accountability,” he said. “Because the reality is, justice would be them still here with us living.”

Indeed, some commentators have come to question the propriety of taxpayers paying judgments for police practices the taxpayers might not support. In any case, change is expected to come from political and administrative avenues in response to protests. If any judicial process is crucial for many activists, it is the criminal prosecution of the perpetrators, whether the perpetrators are police utilizing excessive force or workplace rapists, that activists consistently and persistently call for. It does not seem too much to say that activists do not believe civil rights litigation is a useful tool for social change. Notably, when the summer 2020 protests triggered talk of legislation aimed at modifying qualified immunity, and thereby facilitating civil rights suits against abusive officers, activists were unmoved, dismissing such calls in favor of proposals to “defund the police.” Law seemed beside the point, an inappropriate distraction from efforts for true reform.

Ambivalence to civil rights law derives in part from an increasingly conservative federal judiciary that has been inhospitable to civil rights claims. This ambivalence is also consistent with a view of social change that emphasizes political processes, organization, and activism. But the litigation tools of the Civil Rights Movement seem available, and conservative activists are energized about using the courts to counteract policy with which they disagree (and which they feel certain violates the Constitution). Civil rights litigation lives and yet it seems that the statutes and constitutional rights that were hard-won in the original Civil Rights Movement have been made superfluous to the challenges of today. Litigation has become an inefficient and ineffective tool for change that, though ephemeral, always requires maximum social and political capital, mobilized and deployed in the streets. Social justice, it seems, is not to be had through law, and victories are not effectively memorialized there.

This Article offers a view as to why. Its focus is on the nature of civil rights litigation, which has been built around judicial equity powers from its inception and occupies a role akin to equity's traditional role over the years: a means for courts to provide remedies to individuals in unusual circumstances in order to achieve justice. Ultimately, civil rights jurisprudence has become “civil rights equity.”

In the Anglo-American jurisprudential tradition, law and equity were separate, complementary systems. Common law courts and equity courts successively emerged in England after the Norman conquest, with common law becoming an independent, formalized system of jurisprudence, and equity emerging as a system for interposing just results in cases where the common law was inadequate. Equity possessed its own, complex system of writs, rules, and precedent, but in the United States federal courts, the Federal Rules of Civil Procedure (FRCP) and their rejection of formal pleading merged equity with law. Since then, a single system of pleading and procedure for law and equity has governed, diminishing the distinction between law and equity in a combined system focused on attaining justice. This fluid, less formal nature aided in the emergence of civil rights law and, arguably, eventually undermined civil rights law's social change capacity.

Emerging from the ferment of the Civil Rights Movement and the post-World War II optimism in rights-based legalism, civil rights threatened to reshape American law. Instead, the revolutionary potential of civil rights has been refashioned in recent years along the lines of traditional equity in both formal and informal ways. Formally, civil rights equity reflects the central role of equitable remedies in civil rights jurisprudence and the central importance of sharp limitations on those remedies. Informally, it reflects the subtle influence of equitable constraints on shaping how courts approach damages actions, making those actions characteristically procedural with vaguely defined, fact-intensive rights that operate to give judges in civil rights cases a role similar to the role of traditional equity courts. The resulting “civil rights equity” limits the force of rights, confines rights to exceptional circumstances, and subordinates them to private rights. Civil rights equity runs counter to Marbury's dicta that public rights are like private rights, to be enforced when established. Civil rights equity is a judicial style that has made civil rights exceptional and limited. It explains the resilience of civil rights, their ever-presence, as well as their uselessness for activists in this new civil rights era.

The claim that civil rights law has become civil rights equity is peculiar in at least three ways, the response to which structures this Article's delineation of a theory of civil rights equity. First, civil rights statutes and jurisprudence were initially created expressly to empower courts to use their equity powers to dismantle the system of segregation known as Jim Crow that had emerged after slavery and Reconstruction. Congress and the courts seemed to agree that, to take on dismantling a system as complex and far-reaching as Jim Crow, required empowering the courts generally, and individual judges specifically, to utilize their equity powers. Though these efforts were discussed in the language of rights, and though, importantly, a parallel system of damages actions emerged alongside this equity-focused system, the origin and structure of civil rights jurisprudence during the Civil Rights Movement was rooted in equity. “Civil rights equity” is only a strange construction in the sense that we presume that “civil rights law” invokes legal rights, or to the degree we think of rights in light of the related analogy to common law rights enforcement that “law” implies. Part I argues that civil rights are equity because it was rooted in equity, and in its formative years, equitable powers came to be closely associated with the civil rights project (emerging damages actions notwithstanding).

Second, the distinction between law and equity is not supposed to be especially meaningful in modern American law, making a distinction between civil rights law and civil rights equity unclear. One should be able to speak coherently of legal rights even if the primary remedies invoked are equitable. Indeed, the merger of law and equity facilitated courts' effective confrontation of Jim Crow in the face of resistance to the Civil Rights Movement and resistance to court-centered efforts to eradicate Jim Crow. Creative utilization of equitable remedies would evolve into the structural injunction and make public law litigation characteristically structural reform litigation. Though the Supreme Court and Congress would in time curtail these broad powers, the merger of law and equity permitted significant judicial confrontation with Jim Crow, which made it difficult to curtail courts' equitable powers while confining changes to the “equitable” aspects of civil rights litigation. Civil rights equity thus represents the influence of traditional equitable restrictions in limiting civil rights jurisprudence more generally. Part II argues that civil rights are equity because it has operated and continues to operate under limitations on litigation drawn, often indirectly, from traditional equity restrictions. The effect of these restrictions is the creation of a hierarchy of rights that defines when to apply civil rights equity and is defined by assumptions about what constitutes an appropriate civil rights case, as informed by traditional equity-based limitations on appropriate use of judicial power.

Third, the claim that civil rights are equity is peculiar because merging law and equity created a simplified system of attaining justice, empowering courts to pursue justice in an efficient, consolidated process. Thus, to speak of civil rights becoming equity defies the assumptions of the post-FRCP approach by implying that a separate kind of equity persists. But the radical anti-formalism of modern law has obscured the emergence of a civil rights jurisprudence that administers legal rights by duplicating the form and role of traditional equity. Civil rights equity means that civil rights jurisprudence has been fashioned to permit courts to intervene principally in circumstances reminiscent of traditional equity courts--to address outrages, where legal remedies are inadequate, and for deserving litigants. Civil rights are made a supplement to law with an approach that supplants legalistic constructions of rights with a largely unbounded search for injustice as understood by individual jurists. The unbounded nature of this jurisprudence is also obscured because, like the jurisprudence of traditional equity, civil rights jurisprudence is characteristically procedural--focused on limiting litigants' access to courts' tremendous power to provide remedies. Yet civil rights jurisprudence is substantively fact intensive--focusing jurists on the specific claim of the particular individual, under their precise circumstances. The efficient, consolidated pursuit of justice in modern law has come to empower jurists to provide remedies where they perceive an injustice, tested by procedural limits, and structure cases for judicial management, checked by the necessity of accord from appellate courts. Civil rights equity is thus a search for outrages.

Accordingly, Part III argues that civil rights are equity because it fulfills the role of traditional equity in the way traditional equity operated. Fulfilling equity's role in this way is not confined to cases involving equitable remedies. Indeed, civil rights equity is epitomized by damages actions being restricted to the kinds of circumstances that equity practice occupied in traditional equity systems. This is less an application of equity restrictions to civil rights than it is an application of popular views of equity in the legal profession to civil rights litigation as a means of redefining the role of civil rights. Part IV details how civil rights equity operates, and the Conclusion summarizes some implications.

[. . .]

Because of equity's focus on substantive justice, popular notions of equity cast it as liberating: equity comes to the rescue where the law fails. But as a system that is supplemental, equity is also limiting. Equity as a model for law diminishes it, preventing it from doing justice. Similarly, flexibility in legal regimes--standards over rules--is seen as liberating, giving judges the means to do justice. But that very flexibility can work against achieving justice. In a flexible regime, justice becomes optional. And where the tools created to reconcile a flexible system of equity with law's important values of consistency and predictability are deployed to avoid consistency and predictability, flexibility becomes a ready means of limiting the occasions for justice. The pursuit of justice is reserved for some cases, some of the time. This is civil rights equity: a special use of equity ideals to make civil rights more flexible, less certain, and less consistent--less law.

Ralph Denton Professor of Law, University of Nevada, Las Vegas Boyd School of Law. J.D., Yale Law School, 1991; B.A., Southern University, 1988.

Become a Patreon!