UC Irvine Law Review

Among the most inscrutable and plaguing roadblocks to implementing the Rule of Law in the United States and abroad has been delay—both postponement required by legal substance and procedure and delaying tactics offensively employed by parties and jurists who oppose clearly established law. The results include denial of justice and destabilization of our democratic legal system. This Article proposes the key of courts employing innovative and courageous procedural mechanisms to thwart delay and breakthrough the logjam of resistance to the Rule of Law. The Federal Circuit Court of Appeals governing six Southern states—Florida, Georgia, Alabama, Mississippi, Louisiana, and Texas—during the post-Brown v. Board of Education (1954) years provides an exemplar of how court systems can surmount dilatory and obstructive tactics to deliver justice.

This six-state circuit—then known as the Fifth Circuit—included officials, jurists, and communities vehemently opposed to desegregation and determined to avoid the dictates of Brown through delay and obstruction. In response, innovative and bold federal appellate judges employed legal methods others had not recognized or used as broadly to spur justice: expediting appellate hearings, making mandates effective immediately upon judgment, deeming traditionally non-appealable orders (such as a temporary restraining order denial) appealable, issuing injunctions pending appeal based upon the All Writs Statute and Federal Rule of Civil Procedure 62(g), dictating the substance of the trial court’s order upon remand, and deciding appeals by a single-judge panel. Contemporary opponents screamed foul—but the reforms stood and resulted in expedited justice.

Although others have lauded the post-Brown Federal Circuit Court governing the Deep South for its procedural ingenuity and resulting expeditious advances in post-Brown civil rights, this Article adds four critical dimensions: (1) diving deeper and broader (including through assimilation of prior scholarship) into the basis for and ingenuity of these procedures in civil rights cases; (2) extending appreciation of the long-term effect of these bold moves in future decades, including today; (3) proposing three replicable keys to the court’s successfully subjugating delay and obstruction: proactively structuring and employing local rules and procedures, applying procedural rules assertively in non-traditional ways, and harnessing what this Article terms “potential power” laws to grant the court the greatest and most flexible authority; and (4) arguing for the broad employment of this bold procedural approach when democratic legal systems globally confront systemic or purposeful obstruction. The Article, in sum, proposes a flexible paradigm for courts to employ to overcome incapacitating delay and resistance, and consequently deliver justice, through procedural assertiveness and undaunted mettle.