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63 Ariz. L. Rev. 1 (2021)

handle is hein.journals/arz63 and id is 1 raw text is: CONSTRUCTING SEPARATE AND UNEQUAL
Ion Meyn*
Federal reform transformed civil and criminal litigation in the early 1940s. The new
civil rules sought to achieve adversarial balance as it afforded litigants, virtually
all white, with powerful discovery tools. In contrast, the new criminal rules denied
defendants, often litigants of color, any power to discover information. Instead, the
new criminal rules emboldened the prosecutor to bring charges and control what
facts to withhold from or share with the defendant. An essential feature of the
criminal template's design  to insert a white gatekeeper with unreviewable
discretion who could distribute benefits and burdens across racial lines was an
established Jim Crow strategy to maintain the racial order.
This Article explores the significance of drafting the rules of procedure within the
social and political forces of Jim Crow. In this assessment, the Article finds that the
most influential of the criminal template's authors embraced Jim Crow norms: one
lectured that Black people were predisposed to criminality; one authored a state
supreme court decision that opined whites, but not Black people, had respect for the
law; and one issued judicial opinions lauded by segregationists.
This Article contends that federal reform, deeply influenced by the entrenched norms
of the time, wrote race into procedure and contributed to the construction
of separate and unequal courtrooms. The Article finally observes that our state and
federal courtrooms still operate pursuant to key features of this Jim Crow blueprint.
*        Assistant Professor, University of Wisconsin Law School. The Author is
grateful for the insights of David Ball, Jeannine Bell, Bennett Capers, Devon Carbado,
Gabriel Chin, Brooke Coleman, Frank Rudy Cooper, Anuj Desai, Carissa Hessick, Alexandra
Huneeus, Osamudia James, Stephen Kantrowitz, Joseph Kennedy, Nancy King, Jennifer
Laurin, Jamelia Morgan, Justin Murray, Lea Johnston, Heinz Klug, Alexandra Natapoff,
Ngozi Okidegbe, Jocelyn Simonson, David Schwartz, and Mitra Sharafi. The Author is
grateful to the law faculties at Emory and Minnesota for feedback during Faculty
Colloquiums. Rachel Dykema, Farah Famouri, and Anya Gersoff provided invaluable

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