Doorways of Discretion

The seemingly neutral and objective Federal Rules of Civil Procedure are permeated with doorways of discretion. These doorways grant judges nearly unreviewable discretion. At the same time, judges are acculturated within a society with deeply rooted and permeating racist ideologies, societal inequalities, and racial subordination, one in which prejudice, stereotypes, and discrimination against people of color remain prevalent. Social psychological research reveals how these doorways of discretion intersect with the psychology of human decision-making to allow for prejudice against racial outsiders to emerge. These doorways of discretion interact with racializing societal and psychological processes in ways that lead to the legal construction and erasure of racism. When justifying their pretrial decisions, judges elaborate legal concepts based on their understandings of race, racism, and what counts as discrimination. These legal constructions frequently elide or erase the lived experience of marginalized groups and reproduce and amplify societal inequality that undermines racial outsiders.