The relationship between the criminal legal system and racial subordination has been well-documented. Scholars have shown, for instance, how the criminal legal system engages in selective enforcement, applies procedural protections unequally, and imposes incarceration, fines and fees, and collateral consequences to maintain the current racial order. Much less attention has been paid, however, to the racialized violence and oppression perpetuated by the civil legal system. Drawing on our recent work, we highlight in this brief post how the civil courts similarly function to maintain the current racial order by operating as sites of racial capitalism.
The racial capitalism framework emphasizes that capitalism relies upon racialized systems of exploitation and expropriation to produce and accumulate capital. Civil courts help to maintain this order, we argue, by facilitating its enforcement and providing a veneer of legitimacy that makes systemic racial exploitation appear rational and inevitable. Moreover, civil courts act as a powerful arm of the state to both define and enforce the terms of private relationships. In this role, a major function of the civil courts is to transfer assets from human defendants, disproportionately Black, to white-controlled corporations or to the state itself, by force or the threat thereof.
Through the daily work of the civil courts, the state engages in both race-making and profit-making. While this occurs across a wide range of areas, we will focus here on how court processes in eviction, debt collection, and child support cases routinely commodify racialized individuals, extract resources from poor, predominately Black communities, and contribute to the production and accumulation of white wealth. Although some of this occurs through the substance of the law, the ways in which courts interpret and apply the law, and the procedures they adopt to implement it, are equally important.
Extraction through Eviction
Eviction is one of the largest categories of cases handled by U.S. courts. Nationwide, it accounts for approximately twenty percent of cases, more than all federal cases combined. At the most basic level, these courts authorize landlords to recover possession of real property, including by force of a government officer when tenants fail to vacate. But recent empirical studies, including by one of us, show that landlords use the courts not only to seize people’s homes but also, under threat of such seizure, to extract large sums of money.
Eviction is not only about repossession of a home, but also about seizing the products of racialized tenants’ labor and instilling fear to prevent resistance. For many families, rent consumes more than more than fifty percent of their income. Landlords can obtain judgments with devastating speed, and often they instead secure settlement agreements with payment schedules and new restrictions on tenant conduct. Claims about past due rent are prioritized and strictly enforced—often through default judgments, where the landlord wins purely because the tenant fails to appear—while tenant claims about unsafe living conditions are far less likely to gain traction or result in relief. As another one of us has argued elsewhere, eviction courts serve to enforce a social order in which housing is a scarce and unstable resource for subordinated people, and such scarcity and instability generate enormous profits.
Corporations—entities whose purpose, by law, is to generate profit—are frequent plaintiffs, and the courts provide them with a quick, cheap, and reliable mechanism for collecting assets from the racially subordinated people who appear as defendants. Indeed, large corporate landlords regularly bring serial eviction actions against the same tenants, who are disproportionately Black and Latinx. Landlords’ ongoing violations of the warranty of habitability do little to change or even slow the outcomes; the courts treat the defendants as sources of rent, not human beings entitled to safe homes. Meanwhile, serial eviction filings serve not only to collect rent but also to impose additional charges for the alleged costs of litigation. The court forum thereby facilitates and justifies this means of increasing corporate wealth. Notably, the boards controlling these corporations and the beneficiaries who receive distributions of their profits are likely to be majority white.
The corporate profit generated by the civil courts also extends to collateral businesses designed around court activity. Records of evictions, for example, are batched and sold as part of a billion-dollar industry that profits from the exploitation and marginalization of tenants. The records then function as markers of tenant undesirability that further perpetuate racial exclusion and exploitation as landlords use them to screen tenants or charge higher rents. Private actors engage in the buying and selling of such records and capitalize on the vulnerability they create, but it is the state—specifically the court—that produces and disseminates the records, making this business model possible.
Debt and Default
Debt collection is the fastest rising case category in the civil legal system, accounting for roughly 15 to 30 percent of civil dockets nationally. Debt delinquency—the precursor to judicial involvement—is highly racialized. Black communities are often targeted by predatory lenders, and Black consumers offered higher-risk financial products on less favorable terms, creating increased vulnerability. Initial debt can spiral, leading to additional borrowing to pay back prior loans—often at even higher interest rates—providing ripe opportunities for wealth extraction.
When consumers are unable to repay loans, debt collectors—either the original creditor or a third-party buyer—turn to the courts. It is here that court processes streamline and facilitate the racialized extraction and accumulation of wealth. Courts process large caseloads rapidly and en masse, and, in contrast with the vast majority of debt collectors, few consumers ever have legal representation. The speedy process and absence of defense counsel allow for meritless debt claims—many based on fraudulent service practices or false affidavits generated through robo-signing—to fly through with the courts’ imprimatur.
As in the eviction context, default judgments—judgments rendered against civil defendants who fail to appear in court—play a prominent role in the courts’ treatment of debt collection. Defaults occur in 60 to 90 percent of debt cases (and 15 to 80 percent of evictions). Civil courts have adopted default judgments as a routine aspect of case handling, in part to address high docket volumes. Yet this practice allows for permanent, enforceable judgments to be issued without any evidence or thorough investigation of the claims. In conjunction with the fraudulent practices mentioned above, this means that a person may lose her sole means of transportation through asset seizure, be subjected to prolonged wage garnishment, or be thrown out of her home on the basis of unverified, meritless allegations of which she had no notice and for which the court required no proof. The courts’ choice to support such practices provides the powerful debt collection industry with a cheap and easy mechanism for extracting wealth from poor, predominantly Black communities.
Racialized Commodification as Child Support
In addition to the specific court procedures that support extraction, the ways in which courts structure legal proceedings around family relationships and categorize related litigant interests diminish the human elements of people’s lives and translates them into monetary terms.
Consider, for example, child support cases, in which noncustodial fathers—predominantly Black men—are valued only for the payments their labor produces, while their loving care for their children is not considered part of their “child support” contribution. Should a father wish to address maintenance of his relationship with his child, such as issues of access or custody, the court will direct him to file a separate action.
Fathers (or non-custodial parents) are not the only casualties of commodification: child support courts devalue the interests of mothers (the typical custodial parents) and children as well. The court process is less about supporting caretakers and their dependents than it is about the state extracting funds from Black men unable to pay, often as compensation for public benefits received by Black mothers. Indeed, mothers receiving public benefits must assign to the state the right to sue for child support and cooperate with state efforts to collect. This may mean participating in enforcement proceedings—even when the mother believes it is not in her or her children’s best interest. The goal is to facilitate the state’s reimbursement for past payments, with significant interest, to fill its own coffers. At the same time, child support court perpetuates the racialized subordination of labor, ordering Black men to produce payments by subjecting themselves to a fundamentally exploitative labor market.
Through these and other processes of racialized commodification, extraction, and dispossession, the civil courts perpetuate and legitimize racial inequality and the accumulation of white wealth. Race is not merely incidental to but rather a critical factor in the civil courts’ design and operation. And it is racial subordination that makes the inequality generated by the courts both persistent and widely tolerated. We hope that future study of the civil courts will continue to grapple with and explore the role of race, contributing to a broader theoretical framework and a foundation for change.