Excerpted From: Portia Pedro, Resistance Proceduralism: A Prologue to Theorizing Procedural Subordination, 80 Washington and Lee Law Review 2039 (2024) (103 Footnotes) (Full Document)

portiapedroWhen I was a junior high student, the administration of the school that I attended imposed a process to thwart student attempts to change the school's racist mascot. Since then, the ways that people design and deploy procedure have continued to intrigue me. So much so that, decades later, as a law professor, I found myself writing an article developing a theoretical framework for understanding what I am calling procedural subordination--how racial subordination, and the subordination of other marginalized groups, may be facilitated by civil procedure. While writing that article, I vaguely recalled family stories of structures, perhaps including legal structures, reinforcing racism in the lives of some of my enslaved ancestors in the U.S. pre-Civil War era. I searched for and eventually received what my relatives had assembled and collected of some parts of our family history. As I read through those binders of documents about my family and the related documents and court records that I found, the use, or attempted use, of process to impose--or to overcome-- subordination based on race, sex/gender, and other aspects of identity stood out as a through-line, running from the earliest (currently) known experiences of my ancestors through to my own experiences.

In this Article, I share a few personal and ancestral narratives to explain my motivation for better theorizing the ways that procedure, both in civil litigation and in the broader world outside of the courtroom, furthers white supremacy and the subordination of people of color and other marginalized communities along axes of group identity. I also begin to outline the strategies that enslaved people, including some of my ancestors, employed when litigating freedom suits, procedural unfairness notwithstanding. While Black legal scholars have discussed the role of slavery within their own family narratives and a growing number of historians, legal historians, and law scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South, this Article adds a focus on procedure to the conversation. This is part of a larger project to explicate the ways in which members of marginalized communities can resist, and have resisted, from within procedural regimes that, in some ways, reinforce subordination. I look to the ways that my enslaved and freed ancestors, in civil litigation, deployed a procedural regime that was unjust and illegitimate in a way that would shield them from harm and either provide or allow for their eventual freedom.

Professor Daniel Farbman sets forth the concept of resistance lawyers-- lawyers who used strategies of delay, procedural entanglement, confusion, and obstruction within litigation, even though they viewed the procedural and legal regime as unjust and illegitimate. These lawyers employed such strategies in order to give their alleged fugitive enslaved clients opportunities to make plans for escape, raise money to purchase their freedom, be away from their enslavers and the harsh conditions to which their enslavers subjected them, or potentially win in court and be free through litigation, with the end goal of resisting and eventually dismantling the unjust regime. Analogizing to this concept of resistance lawyers, I propose that we can, and should, understand some of my ancestors, and perhaps some of yours, as engaged in resistance proceduralism--strategically using civil litigation and procedure, even at times within an unjust procedural regime, to keep families together, avoid enslavers' harsh conditions, or delay sales of themselves until they could save and borrow the money to buy their freedom, or even until the Civil War ended, resulting in their eventual emancipation. I also explore whether, and how, present-day scholars and litigators can be resistance proceduralists by (1) mitigating the effects of the structural inequities of civil procedure on members of marginalized groups, and (2) developing strategies to resist and dismantle the procedural mechanisms that further subordinate marginalized groups.

I describe lived experiences that involve civil procedure and that involve procedures in the world beyond civil litigation because the structural subjugation infused by civil procedure probably has much in common with the structural subjugation reinforced by procedures in many other contexts. As illustrated by my own lived experiences and those of my ancestors, if we do not intentionally develop and deploy procedure for the purpose of liberation, and if we do not develop an understanding of the subordinating characteristics and effects of various procedures for the purpose of criticizing and then dismantling those procedures, then, time and again, we may find that mere forms and technicalities thwart the substantive, sought-after ends.

This Article is a personal and ancestral narrative prologue to my project of developing a theoretical framework for understanding how racial subordination and the subordination of other marginalized groups is facilitated by civil procedure. By sharing some ancestral and autobiographical lived experiences with procedure, both within and outside of courts, I 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. Developing a richer understanding of the structural subjugation that sometimes infuses civil procedure may help resistance proceduralists dismantle, or navigate around, more of the structural subjugation infusing process in many other contexts.

In Part I, I introduce some of the context of my junior high school's mascot, to give some of the present-day background of why talking about race and slavery can be relevant in everyday life.

Then, as a partial explanation of why recent Confederacy celebrations are particularly repugnant and personal to me, in Part II, I move on to use some of my ancestors' freedom suits as entry points, to see the ways in which they arguably engaged in resistance proceduralism--utilizing procedure to increase justice for marginalized people and groups and to decrease procedural subordination and white supremacy. I look at civil procedure, in that litigation, with a specific eye to race, gender, and sex to see which procedures presented roadblocks that my ancestors attempted to navigate around and to identify which aspects they used as stepping stones to justice.

In Part III, I return to the story I started with by discussing the process involved in trying to change my junior high school's racist mascot as a way to look at procedure that is more present-day and outside the context of civil litigation. This is an attempt to build an understanding of how, in the past, marginalized peoples have engaged in resistance proceduralism and how we can continue to marshal today's procedures, or dismantle subordinating procedures and create new procedures in their place, to increase justice for marginalized groups, both inside and outside of the courtroom.

[. . .]

As I embark on this endeavor to identify the potential imposition of different procedural baselines for litigation brought to benefit members of marginalized groups as compared to other litigation, I hope that others will also push this conversation forward, both within and outside of civil litigation. We may begin to identify, and then work to undo, the facilitation of white supremacy, racism, and the subjugation of people of color and other marginalized groups within all sorts of procedural systems.

Associate Professor, Boston University School of Law.