Colorado Law

Pratt, Staci J.

University of Colorado Law School 
Colorado Law Scholarly Commons 
Articles Colorado Law Faculty Scholarship 
2022 
Endangered Claims: How the U.S. Civil Procedure System Mimics 
the Wild 
Suzette M. Malveaux 
University of Colorado Law School 
Follow this and additional works at: https://scholar.law.colorado.edu/faculty-articles 
 Part of the Civil Procedure Commons 
Citation Information 
Suzette M. Malveaux, Endangered Claims: How the U.S. Civil Procedure System Mimics the Wild, 
JOTWELL (June 10, 2022) (reviewing Brooke D. Coleman, Endangered Claims, 63 Wm. & Mary L. Rev. 345 
(2021)), https://courtslaw.jotwell.com/endangered-claims-how-the-u-s-civil-procedure-system-mimics-
the-wild/. 
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This Book Review is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado 
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Courts Law
The Journal of Things We Like (Lots)
https://courtslaw.jotwell.com
Endangered Claims: How the U.S. Civil Procedure System Mimics
the Wild
Author : Suzette M. Malveaux
Date : June 10, 2022
Brooke D. Coleman, Endangered Claims, 63 Wm. & Mary L. Rev. 345 (2021).
This season I was captured by an article offering a new lens to analyze the precarious state of consumer, employment
discrimination, civil rights, and other substantive claims in the U.S. civil litigation system.  Brooke
Coleman’s Endangered Claims reminds the reader to consider how such rights—increasingly vulnerable to
obstructionist policies and decisions by the federal rule makers, the Supreme Court, and Congress—fare in an
ecosystem that favors the privileged. Coleman analogizes claims and claimants in the court system to endangered
species who must adapt, migrate, or suffer extinction in a Darwinian world driven by “survival of the fittest.” She
illustrates how a system titled “civil” is hardly that, looking more like a brutal story of evolution where the strong devour
the weak and the latter must adapt or die.
The analogy reveals that the values underlying much of modern procedural reform prefer parties with greater power
and money, are anchored in a restrictive rather than liberal ethos, and undermine court access and promotion of
meritorious claims—the primary goals justifying the Federal Rules of Civil Procedure in 1938. Coleman challenges
policymakers to consider the effect of procedural rules and doctrine on “endangered” claims, as a conservationist
would consider the effect of environmental policies on endangered species.
Coleman provides persuasive examples of the “evolution story of federal civil litigation.” She describes a landscape
littered with adaptation, migration, and extinction of claims since the Federal Rules’ inception in 1938. This evolution
winds its way through heightened pleadings, limited discovery, robust summary judgment, punitive Rule 11, increased
judicial case management, and disappearing jury trials. For example, parties and attorneys have adapted by using
multi-district litigation (MDLs) to aggregate claims when class certification barriers were too high and by lobbying the
rule makers to change the discovery rules to include a proportionality requirement when discovery was too expensive
and burdensome. These litigants and lawyers with power and resources (on both sides of the “v”) have adapted within
and without the court system in order for their claims to survive. Repeat players have found work-arounds to maintain
court access and control.
Similarly, Coleman offers compelling examples of migration. For example, defendants have migrated to arbitration via
mandatory, pre-dispute arbitration clauses that have proliferated in all manner of contracts and garnered unwavering
support from the Supreme Court over the last fifty years. Plaintiffs, on the other hand, have migrated to state courts
and federal agencies to keep their claims alive.
Those who have not succeeded at adapting or migrating have faced extinction. Coleman states the cold reality: “[A]s
with evolution, not everyone can make it. The most vulnerable parties with endangered claims are now extinct.” (P.
386). A notable example involves plaintiffs with civil rights and small consumer claims who could not scale the higher
pleadings wall under Twombly and Iqbal, survive the Supreme Court’s rigorous Celotex summary judgment trilogy, or
act collectively because of class action bans in mandatory arbitration agreements post-Concepcion and Italian Colors.
The proliferation of class arbitration bans in consumer and employment contracts has killed claims altogether in any
forum. Plaintiffs (such as some DoorDash workers) with sophisticated and well-resourced counsel have tried to adapt
by bringing mass individual arbitration filings, with varied success. But for the most part, “defendants—with the blessing
of the Court—managed to disappear a large number of cases not just from the federal court system, but from the
universe. For many plaintiffs, defendants’ migration to arbitration has meant not just endangerment, but extinction.”
                               1 / 2
Courts Law
The Journal of Things We Like (Lots)
https://courtslaw.jotwell.com
(P. 382.)
The article makes important concessions. One is that litigant adaptation is not new. Another is that procedure is one of
a number of influencers killing substantive rights. Moreover, there is nothing “natural” about this evolution. This
ecosystem does not develop in a vacuum; “[h]uman interference changes this natural development.” (P. 390.) One
might go further and say that humans are not an interference, but an integral part of this natural development. In any
event, Coleman questions Darwin’s “natural selection” theory and characterizes the “survival of the fittest” model as
“perverse.” The analogy is descriptive, not aspirational.
After establishing that the strongest survive in the world of civil litigation as well—a phenomenon that promotes
corruption, replicates homogeneity, and undermines the legitimacy of the federal justice system—Coleman pivots to the
important question of what policymakers (including rule makers, Congress, and the Supreme Court) should do now.
She argues that policymakers have taken a primarily reactive posture to procedural reform. Some might find that
framing too generous; for example, the Supreme Court’s extensive pro-arbitration jurisprudence and interpretation of
the Federal Arbitration Act is “an edifice of its own creation.” Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 283
(1995) (O’ Connor, J., concurring).
Coleman urges policymakers to take a page out of the Endangered Species Act, offering an Endangered-Claims-Act
framework for procedural reform. Policymakers should focus on protecting endangered claims  rather than protecting
powerful parties. This requires gathering systemic data and proactively studying the effect of procedural reform on
claim survival, something more easily done through the public court system than private non-transparent alternative
fora. Coleman describes this shift as one in unit selection: the claim, not the party, measures the success of procedural
reform. This subtle shift is significant, as it questions the anchor principle of trans-substantivity; a claim-driven analysis
shows that perhaps not all claims should be treated alike.
The article ends by testing this hypothesis in the COVID world. Technological advances to court access proliferated
during COVID, when the powerful needed such adaptations. A party-driven system that favors those with resources
and power led to innovations that economically marginalized and person with disabilities long had sought. An
Endangered-Claims-Act analysis would examine how civil justice reform affects the least powerful and the most
vulnerable claims, with the goal of protecting those that are meritorious but left behind.
This is a creative and thoughtful piece about the evolution of the civil justice system. The analogy between endangered
claims and endangered species offers a new lens through which to think about how substantive rights and litigants are
treated in the U.S. and how civil reform policymakers should lead. Coleman helps the reader appreciate the inequities
in our justice system and challenges us go deeper in our understanding of our fragile democracy.
Cite as: Suzette M. Malveaux, Endangered Claims: How the U.S. Civil Procedure System Mimics the Wild, JOTWELL
(June 10, 2022) (reviewing Brooke D. Coleman, Endangered Claims, 63 Wm. & Mary L. Rev. 345 (2021)), 
https://courtslaw.jotwell.com/endangered-claims-how-the-u-s-civil-procedure-system-mimics-the-wild/.
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                               2 / 2


English

Book Review

Climate change is one of the leading challenges facing tribes today. Traditionally, Indigenous women played significant roles in tribal decisionmaking and governance. However, European contact and colonization shifted gender dynamics, imposing male-dominated leadership. Recently, Native American women are reclaiming leadership positions-formally within tribal government, as well as informally in prominent community roles. These women are poised to lead the way in protecting their communities against climate change impacts, but support is critical to sustaining pathways to leadership. This article discusses the disproportionate impacts of climate change on tribes and highlights the rise ofIndigenous female leadership within the Colorado River Basin to confront these challenges

Tanana, Heather

Voices of the River: The Rise of Indigenous Women Leaders in the Colorado River Basin

Leonard, Wesley Y.

Colorado Environmental Law Journal 
Volume 34 
Issue 3 Visions for the International Decade of 
Indigenous Languages 2022-2032 
Article 10 
5-1-2023 
Thoughts on the Ethics of the International Decade of Indigenous 
Languages 
Wesley Y. Leonard 
University of California Riverside 
Follow this and additional works at: https://scholar.law.colorado.edu/celj 
 Part of the Environmental Law Commons 
Recommended Citation 
Wesley Y. Leonard, Thoughts on the Ethics of the International Decade of Indigenous Languages, 34 COLO. 
ENV’T L. J. (2023). 
Available at: https://scholar.law.colorado.edu/celj/vol34/iss3/10 
This Article is brought to you for free and open access by the Law School Journals at Colorado Law Scholarly 
Commons. It has been accepted for inclusion in Colorado Environmental Law Journal by an authorized editor of 
Colorado Law Scholarly Commons. For more information, please contact rebecca.ciota@colorado.edu. 
Thoughts on the Ethics of the
International Decade of
Indigenous Languages
Wesley Y. Leonard*
aya ceeki. Wesley Leonard weenswiaani. niila myaamia.
What I just said in the myaamia language (also known as "Miami"),
is very simple: I just shared my name - I said who I am, and that I am
Miami. This, however, becomes a relatively big deal when you consider
the history of the Miami people and of our language, which like
Wampanoag was a sleeping language for a number of years and only later
became reclaimed from archival documentation. I refer here to language
documentation that was created for a number of purposes such as serving
missionaries or for other extractive purposes, such as serving Western
science - not for language reclamation. It has taken quite a bit of work to
interpret that documentation and repurpose it within Miami cultural norms
so it can serve our community's needs in appropriate ways.
I approach this example from my vantage as a Miami person and
as a professional linguist, and recognize that in many cases, "linguist"
carries a negative connotation in Indigenous communities. I am trying to
change that by emphasizing, among other things, that linguistics is not the
same as Linguistics, just as anthropology is not the same as Anthropology,
history is not the same as History, and so on. What I am imagining is a
differentiation based on capitalization. Linguistics with a capital-L refers
to the named discipline, which has a particular colonial history and
operates in colonial ways; linguistics with a lower-case-i refers just to the
* Wesley Y. Leonard is a citizen of the Miami Tribe of Oklahoma and an associate
professor in the Department of Ethnic Studies at the University of California, Riverside.
Supported by a PhD in Linguistics and two decades of experience in community language
programs, he researches Native American language reclamation and works to build
capacity for reclamation and related decolonial initiatives.
Colo. Env't. L. J.
study of language, and does not presuppose the ways in which that work
is done or whose and what sorts of concerns get prioritized.
My aim is to change capital-L Linguistics by actively incorporating
Indigenous ways of doing language work, thereby responding to the
discipline's colonial legacy. I note here that when I have shared this goal,
some people have made inquiries to the effect of "couldn't Linguistics just
be its own academic thing and stay out of the language work that happens
in tribal communities?" In response, I have emphasized, following others,
that I believe the best way to do Indigenous language work is for it to be
run by, for, and in Indigenous communities. This noted, particularly for
communities such as my own that are interpreting archival materials
created for some purpose other than contemporary community use, the
disciplinary tools of Linguistics play an important role and there is a need
to apply them appropriately. And moreover, I know that the field of
Linguistics is going to continue to study Indigenous languages, whether
Indigenous people like it or not. Therefore, I want to ensure that those
interactions and the associated interventions will happen in good ways.
Although I am a linguist, I am employed as faculty in a Native
American Studies program. This aligns with my belief that language work
can be done, and should be done, in ways that are guided by Native needs
and values - a principle that Native American Studies emphasizes as a
field. My ideas on this reflect what I have observed in my own Miami
community and also from my engagement with members of a number of
tribes across North America, particularly smaller Indigenous communities
in California. Through these experiences, I have seen benefits of applying
tools and principles from linguistic science, but have also witnessed the
harm that can be wrought by misguided academic interventions.
This brings me to the topic of intellectual colonialism, which often
lies at the heart of problems I have observed. A recurring phenomenon,
which I locate within the realm of ethics because I think it needs to be
theorized around questions of what's right or wrong, is that non-
Indigenous needs, goals, and ways of engaging with language get
prioritized even for projects that are ostensibly about supporting
Indigenous communities. I'll be honest in sharing my observations that
even when linguists really want to support tribes - and many do - because
intellectual colonialism is so strong and so embedded in academic metrics,
academia often wins.
To give a particular example, the Linguistic Society of America,
which is the largest professional organization for linguists in the United
States, has an Ethics Statement that includes recognition that languages
belong to communities, that research should benefit communities, and that
116 [Vol. 34:SI
Ethics of the International Decade
intellectual contributions should be properly attributed.' Several related
principles, though not always followed, have become increasingly
accepted as best practices for Indigenous language work. Don't be
extractive. Share your materials. Respect community wishes and
protocols. But these are largely framed with the assumption that the
researcher is from a dominant social group, the corollary being that the
ethical protocols will start from non-Indigenous norms to which particular
Indigenous community ideas might then be added. Rejecting intellectual
colonialism, conversely, entails creating strong structures for Indigenous
needs, intellectual traditions, and sovereignty to guide language work. But
how do we do this?
I'd like to tell you about the Natives4Linguistics Project, which I
co-founded a number of years ago to address this issue.
Natives4Linguistics is a network of linguists and related Indigenous
language scholars and non-Indigenous allies who share a goal of
imagining and realizing a different model of Linguistics wherein
Indigenous needs, protocols, and intellectual tools provide the foundation.
In this way, Natives4Lingistics rejects the assimilatory approach that is
common in initiatives to "broaden participation" that take Linguistics (or
another scientific field) into Indigenous communities, with the assumption
that doing so will diversify the field.2 That is, the Natives4Linguistics
project is not about socializing Indigenous people to become linguists
following the status quo. Rather, the project's goal is to introduce
intellectual tools and protocols from Indigenous communities into
linguistic science, thereby fostering disciplinary norms that center and
honor Indigenous people and our ways of being and knowing.
As I reflect on the Natives4Linguistics project with respect to how
its themes relate to the International Decade of Indigenous Languages, I
recognize the importance both for addressing intellectual colonialism, and
for emphasizing "Indigenous" in the phrase "Indigenous languages." I was
quite critical of how the International Year of Indigenous Languages in
many cases focused on languages defined as objects, as sets of grammar
and vocabulary if you will, thereby featuring what people might consider
"interesting sets of vocabulary" for example, while ignoring the
I LSA Revised Ethics Statement, Final Version (Approved July 2019), LINGUISTIC
SOCIETY OF AMERICA, https://www.linguisticsociety.org/content/lsa-revised-ethics-
statement-approved-july-2019 (last visited Feb. 19, 2023).
2 The Natives4Linguistics Project began as a 2018 workshop and later became a
special interest group of the Linguistic Society of America. See About Natives4Linguistics,
NATIVEs4LINGUISTICs, https://natives4linguistics.wordpress.com (last visited Feb. 14,
2023); Natives4Linguistics Special Interests Group, LINGUISTIC SoC'Y OF AM.,
https://www.linguisticsociety.org/content/natives4linguistics-special-interest-group (last
visited Feb. 14, 2023).
2023] 117
Colo. Env't. L. J.
Indigenous communities and nations that underlie those languages. I
suggest that one way to avoid this harmful practice is to emphasize
Indigenous definitions of language, which tend to avoid the objectification
I just mentioned, and to do so in every stage of language work. I will share
an example from my community. This comes from Jarrid Baldwin, who is
a myaamia language teacher. I once asked him to define "language," and
he said this:
Language is how a community connects to each other and how they
express themselves and their culture to each other. Language provides
within the myaamia community a mapping for us to learn more about each
other and ourselves.3
In this example, language is defined relationally, in a way that centers
myaamia people. It cannot exist without us, and cannot exist without our
culture. This is a general principle that I believe needs to guide the
International Decade of Indigenous Languages - just as it provides a
foundation for Natives4Linguistics, which as a project always positions
Indigenous languages in relation to Indigenous communities.
One specific Natives4Linguistics project that builds upon this
principle involves changing the norms of how professional scholars give
presentations about Indigenous languages and Indigenous language issues.
Current practice in Linguistics allows somebody giving a research
presentation or teaching a class to go right into the language as a
grammatical object, perhaps to talk about some verb structure or
something akin to that. They may barely mention the people(s) who claim
that language, let alone their associated nationhood, sovereignty, and so
on. This is hugely problematic, but there is a relatively easy fix that
Natives4Linguistics participants are engaged in promoting, which is to put
the people first. Related to this, as a matter of policy, I have been working
to create protocols whereby when scholars submit abstracts for
conferences, those abstracts must address the social contexts and
implications of the work - the critical engagement with which will in turn
be part of the evaluation. I want to do the same for academic journals and
other venues so that it no longer will be possible for people to operate as
if "real" linguistic science is separate from community needs, or to skirt
around the ways in which colonialism has positioned Indigenous
communities as data for science rather than as agents of science - agents
who offer our own intellectual traditions to address contemporary needs.
I like the term Indig-agency [Indigenous agency], and assert that it is
essential that Indigenous peoples exercise our agency during the Decade.
3 See Wesley Y. Leonard, Producing Language Reclamation by Decolonising
'Language,' 14 LANGUAGE DOCUMENTATION & DESCRIPTION 15, 29 (2017),
http://www.elpublishing.org/PID/150.
118 [Vol. 34:SI
Ethics of the International Decade
However, I also recognize that this is quite hard, not just because of the
intellectual colonialism that is rampant across the world, but also because
the United Nations does not structurally center Indigenous nations. The
United Nations recognizes the United States. The United Nations
recognizes Canada. But the United Nations is not directly linked to various
tribal nations the way that it ideally would be, not only for the International
Decade, but in general. The proposed United Nations Convention that is
called for by Richard Grounds in his recent Cultural Survival article,
4
along with his proposal for an Indigenous co-facilitator for the Decade,
would help. But I think that we need quite a bit more.
An additional idea outlined in Grounds' Cultural Survival article is
a 50/50 Protocol, the notion of asserting as a matter of policy that when
language work is done for purposes other than directly for reclamation,
half of the funding should go toward Indigenous community needs. These
are the kinds of policies that I think we actually need, where it's not so
much about people wanting to do the right thing or trying to do the right
thing, but rather where the right outcome happens as a matter of design
because it's embedded in the policy itself. As noted earlier, I also suggest
that for purposes of language documentation, of archiving, or of featuring
languages in public-facing ways, that community definitions of language
be centered at all stages. Similar is the issue of ethics I mentioned earlier.
If we emphasize Indigenous community ethics and protocols at every
stage, we can avoid some of the problems that occur now.
I close with my response to a question posed in this conference: Do
we need a Native American Languages Protection and Rematriation Act?
My answer is yes. I also recognize that "rematriation" usually refers to
language materials, such as documentation, and think it is important to call
attention to how many materials remain inaccessible to members of the
communities they come from, and that academia has a large role in this.
The capacity to do good language work already exists in Indigenous
communities when the needed resources are in place, but anything that has
been extracted from us first needs to be returned.
mihsi neewe.
4 Richard A. Grounds, Making the Most of the International Decade of Indigenous
Languages for Indigenous Communities, CULTURAL SURVIVAL Q. (Dec. 7, 2021),
https://www. culturalsurvival.org/publications/cultural-survival-quarterly/making-most-
international-decade-indigenous-languages.
1 192023]
120 Colo. Env't. L. J. [Vol. 34:SI


Thoughts on the Ethics of the International Decade of Indigenous Languages

Carpenter, Kristen

Cowell, Andrew

Palmer, Alexis

Visions for the International Decade of Indigenous Languages 2022-2032

Koch, Richard

What are You Looking At? Emerging Privacy Concerns With Eye Tracking in Virtual Reality

Polek, Christine

Sandy, Shastri

The Disparate Impact of Artificial Intelligence and Machine Learning

Colorado Technology Law Journal

Colorado Technology Law Journal 
Volume 21 Issue 2 Article 1 
5-1-2023 
Editor's Note 
Colorado Technology Law Journal 
Follow this and additional works at: https://scholar.law.colorado.edu/ctlj 
Recommended Citation 
Colorado Technology Law Journal, Editor's Note, 21 COLO. TECH. L.J. (2023). 
Available at: https://scholar.law.colorado.edu/ctlj/vol21/iss2/1 
This Front Matter is brought to you for free and open access by the Law School Journals at Colorado Law Scholarly 
Commons. It has been accepted for inclusion in Colorado Technology Law Journal by an authorized editor of 
Colorado Law Scholarly Commons. For more information, please contact rebecca.ciota@colorado.edu. 
FROM THE EDITOR
To the authors, thank you for trusting Colorado Technology
Law Journal with your remakrs and literature. It was a pleasure
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Our members are a group of bright and hardworking
individuals. Not only am I thankful for their work on this
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your guidance and mentorship have been invaluable throughout
this process.
Cassandra Pankey
Editor-In-Chief, 2022-2023
x


Editor\u27s Note

Wu, Tim

Keynote Address by Julius Silver Professor of Law, Science
Technology from Columbia Law School

Rudin, Gabriel J.

Walling Off Privacy: Apple\u27s NeuralHash Controversy, the
ECPA, the Fourth Amendment, and Encryption

Sopko, Adam B.

Catalyzing Judicial Federalism

Joint Institute for Laboratory Astrophysics

Not a member yet

Book Review

Voices of the River: The Rise of Indigenous Women Leaders in the Colorado River Basin

Thoughts on the Ethics of the International Decade of Indigenous Languages

Visions for the International Decade of Indigenous Languages 2022-2032

What are You Looking At? Emerging Privacy Concerns With Eye Tracking in Virtual Reality

The Disparate Impact of Artificial Intelligence and Machine Learning

Editor\u27s Note

Keynote Address by Julius Silver Professor of Law, Science Technology from Columbia Law School

Walling Off Privacy: Apple\u27s NeuralHash Controversy, the ECPA, the Fourth Amendment, and Encryption

Catalyzing Judicial Federalism

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