Discovering Identity in Civil Procedure

Abstract

This essay explores the story of Floride Norelus, an undocumented Haitian immigrant, her civil rights lawyers, and the judges who didn’t believe them. The backdrop for Norelus’s story comes out of Ariela J. Gross’s new book What Blood Won’t Tell: A History of Race on Trial in America. In What Blood Won’t Tell, Gross, an elegant historian and eloquent storyteller, enlarges an already distinguished body of work on slavery, race, and antebellum trials to investigate the changing meaning of identity in law and litigation. Bridging the study of law and culture, she constructs or rather reconstructs identity - both race and gender - from the artifacts of local knowledge expressed in social performance and scientific expertise. Gross points to two “key moments” in the twentieth century American history of racial and gender identity occurring initially when “racial identity trials shifted from more routine adjudications of ancestry to intense contests about science and performance,” and subsequently when jingoist and nativist movements ignited “efforts to define the boundaries of citizenship racially.”

During these moments, she notes, the forum for the “determination” of racial identity moved to the local courthouse, “a key arena through-out the nineteenth century for struggles over identity.” At local courthouses, Gross explains, trials of racial and gender identity “reverberated through American culture.” Indeed, for Gross and others, the “cultural arena” of a courthouse and the “legal case” at stake “could fix the identity of an individual or an entire national group with a conclusiveness that was hard to overturn.” Because of its cultural import, Gross argues, “law has been a crucial institution in the process of creating racial meaning at every level.” Both trials and trial transcripts, she observes, disclose “glimpses of ordinary people’s, as well as lower-level legal actors’ understandings of legal and racial categories and of their own places in the racial hierarchy.” Race trials, Gross emphasizes, “brought to the surface conflicting understandings of identity latent in culture, and brought into confrontation everyday ways of understanding race with definitions that fit into the official, well-articulated racial ideology that supported the maintenance of slavery and post war racial hierarchy.” Witnesses, lawyers, and litigants entangled in this cultural conflict “learned to tell stories that resonated with juries” and judges; in doing so, they actively participated in “the day-to-day creation of race.”

This Essay extends Gross’s historical scrutiny of identity trials to contemporary civil rights debates over the construction of race in law and litigation. The Essay is divided into three parts. Part II maps Gross’s analysis of racial identity trials, explicating her notions of racialized common sense and performance. Part III examines the trial and appellate litigation in Floride Norelus’s civil rights case. Part IV considers alternative approaches to civil rights litigation embodied in identity performance and empowerment strategies.