We are excited to share that Professor Suzette Malveaux was recently awarded the National Civil Justice Institute (NCJI) 2024 Scholarship Award for her article, "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) ().听 The Officers and Trustees unanimously selected "Is It Time for a New Civil Rights Act?" as the best law review article among the submissions from legal academics nationwide.听 Malveaux received a monetary stipend, framed certificate and paid trip to Austin, Texas where she was honored for this prestigious recognition.听 We sat down with her to learn more about her groundbreaking work.
Can you talk about the article that is being recognized by the NCJI and what it was about?听
The fundamental premise of my article is that over the last half century, the U.S. Supreme Court has incrementally and quietly stripped away the procedural rights of everyday Americans, making it increasingly harder for vulnerable populations to get their 鈥渄ay in court鈥� and vindicate their substantive rights.听 This is an important civil rights issue that often flies under the radar.听 While we usually focus on substantive rights, they are futile without robust procedural rights.听 I argue that Congress should address this regressive trend and enact a new civil rights act, to counter this dangerous and ubiquitous trend.
My article explores the conditions and catalysts that led to other restorative civil rights laws, specifically the sweeping Civil Rights Act of 1991 and the targeted Lilly Ledbetter Fair Pay Act.听 The sheer amount and gravity of regressive caselaw, acute dissension within the Court, and groundswell of political pressure has led to a tipping point.听 My article breaks new ground by arguing for a new procedural civil rights act and setting forth what exactly that would look like.
How did this article build on some of your previous work?听
This article is, in many ways, a culmination of years of work.听 I proposed this new procedural civil rights act after extensive work at the intersection of civil procedure and civil rights.听 My scholarship includes books, articles, testimony, appellate briefs, op-eds, and media commentary that explore this intersection.听 I have taught in the areas of Civil Procedure, Complex Litigation, Employment Discrimination, Civil Rights and Constitutional Law for the last two decades.听 As chair of the AALS (American Association of Law Schools) Civil Procedure section last year and director of the Byron R. White Center for the Study of American Constitutional Law the last six years, I鈥檝e benefited from programming that explore these subjects.听 Moreover, as a class action specialist and civil rights attorney for eight years before entering the legal academy, I have practice experience that informs and grounds my work.
This was a highly competitive selection process from a heavy hitting legal organization.听 What does receiving this award mean to you as a scholar?听
I鈥檓 honored to be part of this extraordinary group of scholars, judges, and lawyers who care deeply about the civil justice system and model excellence in so many different ways.听 We need to support and celebrate each other, especially in the face of such profound challenges to democracy and rule of law today.
I鈥檓 grateful to the NCJI for believing in my work and helping get the word out.听 It鈥檚 gratifying to know that my ideas are getting traction and having an impact.
On a lighter note, I also had a lot of fun!听 As academics, we don鈥檛 often get a lot of kudos.听 I usually have no idea what to do with the box of article reprints I have in my office.听 This year, I ordered extras and literally autographed them and handed them out like hot cakes to the NCJI Trustees and Board members at the awards ceremony!听 That was a first!听 (Laughing)
Can you tell me a little bit about the process of writing this article?听
On the one hand, the research and writing process can be extremely gratifying.听 You get to think, learn, create and push yourself intellectually.听 And if you鈥檙e lucky, you get to have real-world impact.听 On the other hand, the process can be challenging, slow and solitary.听 And you can be unsure if you鈥檙e making a difference.听 Writing requires you to be patient, vulnerable, uncomfortable and at times, even courageous.
While writing requires discipline and independence, it ironically takes a village.听 I am indebted to many villagers for this article鈥檚 success!听 I have been fortunate to be supported by the administration.听 Former CU Law Dean Jim Anaya selected me to deliver the 46th annual distinguished Scott Lecture in December of 2020, where I vetted my research with the Colorado legal community and benefitted from the feedback of my colleagues.听 More recently, I鈥檝e received support from the current CU Law Dean Lolita Buckner Inniss, who awarded me the Gilbert Goldstein Faculty Research Leave, giving me time to focus on my research without teaching responsibilities.听 The administration also supported my article, selecting it for an Honorable Mention for the 2023 Milstein Award鈥攚hich provides a certificate and monetary stiped to a member of the faculty for excellent legal scholarship.听听
My peers have also been very helpful in my writing and editing process.听 I workshopped my paper at a number of conferences: the Duke Law School Race and Reform in 21st America Conference, the Fourth Annual National People of Color Legal Scholarship Conference, the Public Citizen and American Constitution Society Civil Justice System Summit, and the Lutie Lytle Black Women Law Faculty Writing Workshops.听 Each forum made my article stronger!
I also belong to a special group of female scholars who were brought together remotely during COVID for a writing bootcamp four years ago.听 The four of us followed a structured program on Zoom for one semester and decided to stick together for weekly check-ins once the program officially ended.听 We continued informally and through our myriad of personal and professional challenges, we bonded and encouraged each other.听 We even organized a three-day retreat where we met each other in person for the first time!听 The day before I received the NCJI award, I received the heartbreaking news that one of our dear members passed away.听 So it was through tears that I accepted the NCJI award, dedicating it to her and our crew and thanking them for getting me across the finish line.听
And finally, my students have been invaluable to the article鈥檚 success.听 My research assistants and anyone whose taken Civ Pro from me has contributed to my growth and helped vet my ideas.听 They ask tough questions and keep me honest!
How do you hope to build on this work going forward?听
I鈥檓 looking forward to building on Is It Time for a New Civil Rights Act?听 One of the encouraging developments that took place while writing this article was Congress鈥檚 passage of the bi-partisan Ending Forced Arbitration of Sexual Assault and Sexual Harassment Claims Act of 2021.听 Despite common gridlock and hyper-partisanship, Congress firmly passed this Act to protect victims of sexual assault and sexual harassment from being shut out of court and forced into arbitration鈥攁 forum that often provides less procedural protections.
My next article argues that, while groundbreaking, this legislation is not enough.听 Victims of racial harassment and discrimination should also be allowed the freedom to choose where and how to challenge such wrongdoing and to have their 鈥渄ay in court.鈥澨� My work challenges the difference in treatment between race and sex when it comes to procedural protection in the civil court system.听 More generally, I will critique the legitimacy of law鈥檚 tethering access to justice to a variety of different axes and identities.听 My larger project will argue that procedurally protecting only the privileged, while leaving the vulnerable exposed, risks creating procedural caste.
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