Given the sweeping language of § 1981 and 1982, it cannot be that sellers of goods can engage in intentional discrimination, so long as they make relatively minor attempts to cover it up. By exploring the interaction between substantive law, procedural law, legal culture, and real-world context, Graves seeks to demonstrate that judges cannot offer any legal or practical justification for heightened pleading requirements in § 1981 and 1982 actions. Through this argument, a conclusion is reached that § 1981 and 1982 plaintiffs must be given the same opportunity to litigate their claims that virtually all other plaintiffs are given. While this conclusion might seem basic, it is currently being ignored in many courtrooms across this country. The overwhelming majority of literature in the field makes the case against heightened pleading requirements by arguing that these requirements violate the Federal Rules of Civil Procedure. The impropriety of heightened pleading requirements under the Federal Rules, however, is not the final deduction in an argument against heightened pleading requirements; it is a starting point. Once we understand that heightened pleading requirements violate the Rules, we can ask why judges continue to impose them. We can, thus, attack the principles underlying judges' decisions to impose heightened pleading requirements.
Purchasing While Black: How Courts Condone Discrimination in the Marketplace,
Mich. J. Race & L.
Available at: https://repository.law.umich.edu/mjrl/vol7/iss1/5