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University of Otago Law Theses and Dissertations |
Last Updated: 13 April 2024
RACE YOU TO COURT
A legal whiteness critique of third-party litigation funding
Anna Margaret Snow
October 2023
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otāgo
Acknowledgements
Thank you to my supervisor, Dr Stephen Young, for your thoughtful direction, vital encouragement, and kindness always. I have known that I wanted to complete this dissertation under your guidance for several years and am grateful that you provided me this opportunity despite being on research leave.
Thank you for awakening a frustrating yet hopefully rewarding lifelong critical perspective.
Who needs solutions anyway?
To my friends, for the shared memories, laughs, and tears. I am deeply touched by all our moments together in this beautiful place.
To Will, for being a grounding force and always so understanding. Thank you for playing the devil’s advocate, and for believing I am far smarter than I am.
To my brothers John and Ian, for being my hype men and best friends. Your hard work, compassion, and generosity inspire me every day. Thank you for making me a better person.
To Dad, for your selflessness and curiosity. Thank you for instilling within me a love for continued learning, and an incredible work ethic. Most of all, thank you for all the opportunities that you have handed me. You are the reason I am where I am today.
To Mum, for being my ultimate role model in life and showing me what it means to be a strong and successful woman. It is hard to find the words, but I truly adore you. Thank you for taking care of me when I need it, and for the gentle reminders that there is more to life than a thesis.
And finally, to Archie, for truly being my emotional support dog.
Table of Contents
Introduction
Racism is a white problem. It was constructed and created by white people and the ultimate responsibility lies with white people. For too long we've looked at it as if it were someone else's problem, as if it was created in a vacuum.1
Third-party litigation funding (TPLF), or the funding of litigation by a third-party unrelated to the proceedings, may not appear to be teaming with racial consequences, ripe for a racial critique. Rather, the debate around TPLF predominantly focuses on ethical dimensions of commodifying justice versus improving access to civil justice.2 Notably absent from the existing literature, however, is an exploration of its potential racial implications. This dissertation does not comment on the value or lack thereof of TPLF as a legal arrangement. Instead, it aims to enrich the ongoing debate by highlighting the previously unexplored racial implications of TPLF. I ask, is TPLF racially charged, specifically in terms of reproducing and reconstructing whiteness as a dominant construct?
This dissertation will explore these questions by developing a framework for a legal whiteness critique that will be used to analyse TPLF. While my primary focus is on TPLF in New Zealand, I borrow academic discussions from the United States of America (the United States) and Australia, given their extensive dialogue on this topic. Through this dissertation, I argue that TPLF is an investment in, and representative of, the hegemony of whiteness. With this finding, I do not seek to solve racism or offer solutions. Rather, my objective is to make visible how whiteness reproduces itself in legal arrangements which appear race-neutral, in a manner that encourages us be more critical of other legal structures.
Chapter 1 combines key legal and theoretical tools from Critical Race Theory (CRT) and Critical Whiteness Theory (CWT) to introduce a framework for a legal whiteness critique. It establishes the racialised foundations of settler legal systems and demonstrates how colour- blind law safeguards these foundations under a façade of neutrality. The chapter then explains how processes of abstraction and alienation serve as mechanisms that enable whiteness to be
1 Interview with Robin DiAngelo, Academic (Nosheen Iqbal, The Guardian, 16 February 2019) transcript provided by The Guardian.
2 References to “access to justice” throughout this dissertation refer to court-based civil justice, not criminal justice.
While criminal justice also confronts significant barriers, criminal justice is not and never has been the focus of third- party litigation funding [TPLF]. See: New Zealand Law Society Access to Justice: Stocktake of initiatives (December 2020) at 8.
portrayed as a neutral standard, continually compounding the invisibility of whiteness and its privileges.
Chapter 2 provides a foundational understanding of the mechanics of TPLF. It briefly details TPLF’s legal status and operation in New Zealand, as well as its interface with class actions and the role of investment firms. Subsequently, a comprehensive literature review is conducted, evaluating both advocates for, and critics of, TPLF. This chapter ultimately discerns the absence of a racial critique within the TPLF debate.
Chapter 3 uses the framework from Chapter 1 to present a racial critique of TPLF. In a three step analysis, it showcases how TPLF facilitates the abstraction and alienation of legal claims through commodification which entrenches whiteness as a standard of value and justice. The chapter highlights TPLF's colour-blind and merit based investment strategy, which perpetuates the marginalisation of non-white racialised minorities. It then concludes by emphasising that TPLF is not just metaphorically, but literally, an investment in whiteness.
Chapter 1: A Framework for a Legal Whiteness Critique
I An Introduction to Whiteness
To be white ... is to not have to think about it.3
In seeking to make visible the racial implications of third-party litigation funding (TPLF), it becomes imperative to interrogate whiteness. Whereas "white" denotes a racial categorisation devoid of scientific grounding, "whiteness" symbolises a socially constructed power dynamic imbued with political weight and justified by law.4 Whiteness enjoys a covert presence, often escaping scrutiny in legal analyses which often focus on non-whiteness. Defined in juxtaposition to a perceived racial “other”, whiteness has been positioned at the top of the legal hierarchy.5 Those with this perceived whiteness enjoy a series of privileges which are naturalised in law as the default norm.6
Whiteness studies aim to expose the subtle reinforcement of white privilege and its role in perpetuating racial disparities.7 The often-ambiguous nature of law highlights the importance of understanding the influence of constructs like whiteness on their interpretation. Contrary to the concern that focusing on whiteness might divert attention from racism, whiteness studies are essential in understanding white privilege—the obverse of racism. Acknowledging this privilege reveals who benefits from racism, how they do so, and informs responsible action to dismantle such privilege on a personal and institutional level.8 If calling out white privilege makes you as a white reader uncomfortable, then that is a sure sign we need to continue the conversation.9 I personally acknowledge my white privilege and the shelter it provides from
3 Tim Wise “Membership Has Its Privileges: Thoughts on Acknowledging and Challenging Whiteness” in Paula Rothenberg (ed) White Privilege (5th ed, Worth Publishers, New York, 2012) 107 at 107.
4 See generally: Charles Mills The Racial Contract (Cornell University Press, New York, 1997); Steve Garner “Introduction – The Political Stakes of Using Whiteness” in Whiteness: An Introduction (Routledge, New York, 2007) 1 at 2; Victor Ray On Critical Race Theory: Why It Matters & Why You Should Care (Random House Trade Paperbacks, 2023) at 7.
5 Thomas A Mitchell “Whiteness in the Law” in Zachary Casey (ed) Encyclopedia of Critical Whiteness Studies in Education Volume 2 (Brill, 2020) 703 at 703.
6 Christine Helen Elers and Pooja Jayan “‘This Is Us’: Free speech embedded in whiteness, racism and coloniality in Aotearoa, New Zealand” (2020) 54 FAS 236 at 238.
7 John Hartigan Odd Tribes: toward a cultural analysis of white people (NCL Duke University Press, Durham, 2005) at 1.
8 Jennifer Pierce “Racing for Innocence: Whiteness, Corproate Culture, and the Backlash against Affirmative Action” in Ashely Doane and Eduardo Bonilla-Silva (eds) White Out: The Continuing Significance of Racism (Routledge, New York and London, 2003) 200 at 201.
9 Paula Rothenberg White Privilege: Essential Readings on the Other Side of Racism (3rd ed, Worth Publishers, New York, 2005) at 1.
the realities faced by those oppressed by the system I critique. I encourage readers to also reflect on their own position within this system.
Critical racial studies, rooted in the American Civil Rights movement, have relevance in settler states where racial classification was used as a tool of colonisation.10 A critical perspective highlights the intersection of law and race in legitimising the dispossession, exploitation, and marginalisation of Indigenous people as racialised minorities during colonisation.11 It necessitates confronting the fact that settler-states remain ensconced within a white- supremacist logic where this colonial foundation has not been redressed, even when progressive laws appear in place.12 Such critical discourse on the persistent and normalised undercurrents of white privilege in settler states presents a pathway for more effective redress of entrenched racial disparities.13
Acknowledging the value of a critical racial critique, this chapter unifies the legal tools of Critical Race Theory (CRT) with the social focus of Critical Whiteness Theory (CWT). It culminates in a framework for a legal whiteness critique which can be used to discern how whiteness is legally reproduced and reconstructed.
II Theoretical Legal Tools
Critical Race Theory (CRT) is a body of legal scholarship committed to the struggle against racism as institutionalised by law.14 It originates from the confluence of Critical Legal Studies and traditional civil rights scholarship.15 This engagement with civil rights discourse stemmed directly from the lived experiences of legal scholars, including Derrick Bell, Kimberlé Crenshaw, Mari Matsuda, and Patricia Williams.16 Their work highlights how racism is not a diminishing aberration of discrete acts rectified by the legal system, but rather a pervasive system embedded in the historical and ongoing practice of law.17
10 Dyaln Asafo and Litia Tuiburelevu “Critical Race Theory and the Law in New Zealand” (2021) 21 Counterfutures 92 at 114.
11 At 114-121.
12 At 111.
13 Elers and Jayan, above n 6, at 238.
14 Derick Bell “Who’s Afraid of Critical Race Theory” (1995) 4 U. Ill. L. Rev. 893 at 901.
15 Kimberlé Crenshaw and Neil Gotanda “Introduction” in Kimberlé Crenshaw and Neil Gotanda (eds) Critical Race Theory: The Key Writings that Formed the Movement (The New Press, 1995) xiii at xviii.
16 See generally: Crenshaw and Gotanda, above n 15; Natsu Taylor Saito Settler Colonialism, Race, And The Law: Why Structural Racism Persists (New York University Press, 2020) at 3.
17 Taylor, above n 16, at 3-4.
A key belief shared by CRT authors is that legal scholarship about race can never be written from a distance of objectivity, free from the social dynamics of racial power.18 Tools from CRT and CWT can therefore be used to discern how the legal system perpetuates these dynamics of racial power, particularly the dominance of whiteness. This section will explore the commonly cited critical tools of neutrality, property, colour-blindness, meritocracy, and the invisibility of whiteness, alongside the lesser-discussed processes of abstraction and alienation, to shed light on this “vexed bond”19 between race and law.
A central tenet of CRT scholarship is that racial subordination is maintained in law by (perceived) neutrality.20 It is therefore pivotal to understand how the foundations of settler legal systems are racialised and therefore lack neutrality.21 This understanding will lay the groundwork for a more comprehensive analysis of colour-blind rhetoric, abstraction, and alienation which preserve a racialised status quo. A review of CRT scholarship by Cheryl Harris and Aileen Moreton-Robinson, examining the nexus between whiteness and property, appropriately highlights the racialised foundation of these legal systems.22
[N]othing can have value, without being an object of utility.23
To substantiate the claim that settler legal systems have racialised foundations, it is appropriate to explore Cheryl Harris’ influential article “Whiteness as Property.”24 Her work traces the legal history of whiteness in the United States from colour to race to status to property as a
18 Crenshaw and Gotanda, above n 15, at xii
19 At xii; Asafo and Tuiburelevu, above n 10, at 100.
20 Cedric Merlin Powell "Rhetorically Neutrality: Colorblindness, Frederick Douglass, and Inverted Critical Race Theory" (2008) 56 CSLR 823 at 837. See also: Crenshaw and Gotanda, above n 15, at xiii, “We believe that legal scholarship about race in America can never be written from a distance of detachment or with an attitude of objectivity.”
21 The reference to settler state legal systems throughout this dissertation exclusively refers to the United States, Australia, and New Zealand as a narrowed focus.
22 Cheryl Harris “Whiteness as Property” (1993) 106 HLR 1701; Aileen Moreton-Robertson “Nullifying Native Title:
A Possessive Investment in Whiteness” in The White Possessive, Property, Power, and Indigenous Sovereignty
(University of Minnesota Press, 2015).
23 Karl Marx “Commodities” in Frederick Engels (ed) Capital: A Critique of Political Economy (S Moore and E Aveling (translators), Progress Publishers, Moscow, 2010) at 30.
24 Harris, above n 22.
progression rooted in white supremacy.25 In doing so, Harris showcases how whiteness itself evolved into a vested property interest that has been constructed, protected, and enforced by law.26 The entanglement of law, property and whiteness reveals how race has been intricately woven into the fabric of legal structures and doctrines.
Harris examines the historical role of law in transforming whiteness into a valued social and legal status. She underscores how the United States legal system has historically used race as a basis for determining fundamental rights and statuses, such as enslavement, property ownership, and citizenship.27 The racial identity of Blacks and Native Americans was used as an ideological basis for slavery and conquest.28 Although the legally backed oppression of both differed in form (one relating to seizure of labour, the other of land), the common foundation was racialised conceptions of property that were ratified by law.29 The law associated whiteness with freedom and property rights. This resulted in exclusionary practices such as precise articulation of racial group membership, race-based exclusionary land rights, and the treatment of Blacks as property.30 Such exclusivity accorded whiteness a valuable legal status, transforming it from a privileged identity to a vested interest.31 As such, whiteness came to share key characteristics with property, including status, the right to use and enjoy, and the right to exclude.32
Consideration of the United States settler state context in the subordination of Native Americans makes Harris’ whiteness as property analysis meaningful in other settler states. For example, in New Zealand, the legalised alienation of Māori land was key in the evolution of whiteness becoming an esteemed property interest. Stuart Banner explains how the British manipulated land markets to shift wealth and power from Māori to themselves throughout the 19th century.33 They achieved this by having the military backed power to define the land
25 Harris, above n 22, at 1714.
26 At 1709.
27 At 1724, 1726, 1744.
28 At 1715.
29 The degraded status of Blacks as chattel slaves was recognised by law in the 1660s, and many laws parcelled out differential treatment based on racial categories. For Native Americans, their land was seized through a racialised system of property rights in land where ‘race’ rendered their possession of their lands as invisible as possession was defined to only include white cultural practices. See: Harris, above n 22, at 1715, 1718, 1721.
30 At 1721, 1724, 1740.
31 At 1725.
32 A 1731.
33 The New Zealand Settlements Act 1863 allowed the colonial government to confiscate vast tracks of Māori land from iwi who failed to pledge allegiance to the Queen of England. Land was also alienated through land sales to the British colonial government in a market system designed by British to secure their power. For more, see: Stuart
market and enforce property rights.34 Racialised identity determined roles in this property market where Māori were sellers, and the British were buyers.35 This legally and socially constructed market was designed to secure power in the hands of settlers by affirming who was white and therefore what exclusionary privileges accrued.36 As an example, voting rights were contingent on possessing individual freehold or leasehold land, meaning those with traditional Māori land rights could not vote.37 Thus as the law associated whiteness with voting and property rights, it was endowed with a tangible value.38 A synthesis of Banner and Harris’ analysis underscores how New Zealand’s colonial legal foundations transformed whiteness into property imbued with status, rights, and exclusion. This illustrates the racial biases embedded in New Zealand's legal system.
A key shared feature of property and whiteness, Harris notes, is the "right to exclude” others.39 This characteristic persisted post slavery and conquest in the United States as whiteness determined who could vote, travel, attend school, and obtain work. It defined the structure of social relations.40 This traditional and exclusionary form of whiteness as property was affirmed by legal doctrine. For example, in the United States Supreme Court case of Plessy v Ferguson, white legal status was denied to Plessy who was one-eighth Black, and the “separate but equal” doctrine was endorsed.41 This legitimated the claim of whiteness as a pure racial identity, and therefore maintained whiteness as an exclusionary property interest.42 Nearly sixty years later, this traditional form of whiteness as property was rejected and replaced with a more subtle form of white privilege. The United States Supreme Court overturned Plessy in Brown v Board of Education by ruling “separate...[is] inherently unequal.”43 However, the Court failed to clearly expose the many inequities produced by segregation.44 Instead, the resulting racial disadvantage, substantial inequality and exclusion was legally accepted as the status quo and a new form of whiteness as property was condoned.45 Whiteness manifests as property both
Banner “Conquest by Contract: Wealth Transfer and Land Market Structure in Colonial New Zealand” (2000) 34 LSR 47 at 47, 90.
34 Banner, above n 33, at 91.
35 At 54.
36 At 54, 90; Harris, above n 22, at 1725.
37 Stuart Banner “Two Properties, One Land: Law and Space in Nineteenth-Century New Zealand” (1999) 24 Law & Social Inquiry 807 at 841.
38 Harris, above n 22, at 1721, 1724.
39 At 1714.
40 At 1745.
41 At 1746; Plessy v Ferguson [1896] USSC 151; 163 U.S. 537 (1896) at 551.
42 Harris, above n 22, at 1737.
43 Brown v. Board of Education (Brown I) [1954] USSC 42; 347 U.S. 483 495 (1954) at 495.
44 Harris, above n 22, at 1751.
45 Harris, above n 22, at 1753.
materially (e.g., in housing or employment discrimination) and symbolically (with white identity being viewed as pure and superior).46 Even if non-white individuals own assets, they are symbolically excluded because only white people inherently possess "whiteness." This exclusivity retains whiteness as a highly valued form of property.47
Having analysed the racialised foundations of whiteness as property in New Zealand, it persists today in the form of unequal treatment and significant inequality. This is regarded in law as a neutral baseline. In Ngaronoa v Attorney-General of New Zealand the New Zealand Court of Appeal concluded that the legal ban on prisoner voting, while presenting differential effects between Māori and non-Māori, was not discriminatory.48 By acknowledging inherent differences in outcome but labelling this as not discriminatory, the Court of Appeal implicitly validated the structural imbalances rooted in the historical marginalisation of Māori and ratified racial disparity as a neutral status quo. This reinforces the coveted position of whiteness within New Zealand’s legal system, ensuring that its benefits and privileges remain undisturbed and unchallenged. Such analysis showcases how New Zealand’s legal system, like the United States, has failed to redress its racialised foundations rooted in exclusion, othering, and alienation of land.49
The analysis of whiteness as property substantiates how settler states like New Zealand or the United States established their legal systems based upon racial exclusion, premised on a misguided belief in genetic superiority over their subjects.50 While overtly racist laws may have since been repealed, the enduring impact of these racialised foundations manifests in intergenerational wealth gaps, loss of land, ongoing poverty, and disenfranchisement. Without acknowledgement or redress, racial inequity remains the norm, and a legal system built and dependent upon racism is very clearly not neutral.51
46 At 1760.
47 At 1724.
48 Ngaronoa v Attorney-General of New Zealand [2017] NZCA 351 at [149]. In the Ngaronoa decision, it was held, “while we accept that there are differential effects as between Māori and non-Māori voters that follow from the ban on prisoner voting, that difference is not discriminatory as it does not impose a material disadvantage on Māori.”
48 Harris, above n 22, at 1745.
49 At 1753.
50 Georgina Tuari Stewart and others “Colonization of all forms” (2022) Educational Philosophy and Theory 1 at 3. 51 Liana Macdonald “Silencing And Institutional Racism In Settler-Colonial Education” (Sociology PhD, Victoria University of Wellington, 2018) at 2; Alexis Hoag “Derrick Bell’s Interest Convergence and the Permanence of Racism: A Reflection on Resistance” (24 August 2020) Harvard Law Review Blog
<https://harvardlawreview.org/blog/2020/08/derrick-bells-interest-convergence-and-the-permanence-of-racism-a- reflection-on-resistance/>
The lack of neutrality inherent in the legal system which preserves a status quo of white privilege is actively protected, invested in, and reproduced in ways that look beneficial. This argument is made by Aileen Moreton-Robinson’s in The White Possessive, Property, Power, and Indigenous Sovereignty.52 In her book, Moreton-Robinson extends Cheryl Harris’ notion of whiteness as property to Australia, another settler state.53 She examines Australia’s native title law to make a legal argument about the possessive investment in whiteness. Central to her argument is that whiteness is a system that protects the privileges of white individuals through subtly diminishing the rights of non-white Indigenous people in ways that appear beneficial or colour-blind.54
Moreton-Robinson’s concept of the “possessive investment in whiteness” captures the white person’s zealous protection of their whiteness and its privileges.55 The term “possessive” underscores an intense desire to own, control, and dominate, while “investment” highlights the strategies employed to achieve such ends.56 Moreton-Robinson explains that in Australia, like New Zealand and the Untied States, whiteness manifests itself in law by defining who is white, what privileges this generates, and what property accrues.57 This has made whiteness a valuable asset worth protecting.58 By examining the history of native land title in Australia, Moreton- Robinson exposes how Australian law protects its possessive investment in whiteness in ways perceived as normal and even benevolent by white people.59
As an example, Moreton-Robinson cites the seminal decision of Mabo and Others v Queensland.60 This decision appeared to recognise Aboriginal land rights but simultaneously entrenched them as subordinate to the Crown. It created (in Australia) a doctrine of extinguishment, where if Aboriginal land title could not be recognised under the narrow test determined by the Court, it could not exist.61 She contends this exemplifies how Australian law
52 Moreton-Robertson, above n 22, at 66.
53 At 67.
54 At 77.
55 At 66.
56 At 67.
57 At 6.
58 At 66.
59 At 66.
60 Mabo v The State of Queensland (No 2) [1992] HCA 23; [1992] 175 CLR 1.
61 Moreton-Robertson, above n 22, at 68.
offers seemingly fair avenues of “recognition” while protecting whiteness as elite.62 The system places the burden of proof on Aboriginal peoples based on white-defined criteria, like requiring written evidence of a legal land claim despite an Aboriginal oral tradition.63 This perpetuates whiteness as the defining measure of rights, and further entrenches its inherent value as a property interest to be possessively guarded.
In minimising or erasing Aboriginal land rights, white Australia continues to benefit from past racial discrimination, particularly through intergenerational transfers and inherited wealth that passes on the spoils of discrimination to succeeding generations.64 By producing law that claims to ‘recognise’ or benefit Aboriginal people, the Australian government engages in a possessive investment in whiteness under a guise of neutral and fair progress.65 In asserting its underlying sovereignty, the Australian government protects a vested interest in whiteness, and indoctrinates a racial hierarchy in Australian law.66
The possessive investment in whiteness showcases how not just neutral, but even apparently beneficial law, can covertly uphold white privilege.67 Colour-blind law is an instrument of this investment through presenting as neutral or progressive. The reality, however, is that it protects a property interest in whiteness by dismissing any attempts to rectify racial discrimination as an infringement of white people’s rights – their vested property.68 In this dissertation, the notion of legal investment in whiteness will be taken quite literally in relation to third-party litigation funding.
It is certainly appealing to imagine a world where race no longer matters. We will reach that day much sooner if we confront our fears, our hopes, and our dreams and acknowledge that they all are intertwined with race.69
62 At 76.
63 At 68.
64 At 74.
65 At 76.
66 At 76.
67 At 77.
68 Harris, above n 22, at 1716, 1758.
69 Powell, above n 20, at 894.
After recognising the racialised foundations of these legal systems, it is appropriate to delve into colour-blind legality. CRT scholarship commonly cites colour-blindness as a legal tool that preserves the status quo. When this status quo is rooted in racial exclusion, its preservation inadvertently sustains systemic racism.
Legal colour-blindness is the principle that laws should not acknowledge or differentiate based on race. This positions colour-blindness as fair and neutral, which may well be the case in a theoretical system that has addressed and rectified is racist foundations. This notion of colour- blindness is likely the society Dr. Martin Luther King Jr. envisioned when he dreamt one would be judged, “by the content of his character and not by the colour of his skin.”70 However, mainstream legal discourse co-opted this colour-blind ideal to argue race should never be a factor in decision making, even where it is needed to remedy racial disparity. The inherent paradox is that in outlawing any mention of race by defining this as racial discrimination, it has become so much more difficult to remediate its effects.71
Early legal endorsement of colour-blindness was evident in the previously discussed case of Plessy v Ferguson. Justice John Marshal Harlan in his dissent claimed, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.”72 This precedent has been legally re-affirmed in 2023 by the United States Supreme Court decision of Students For Fair Admissions, Inc. v President And Fellows Of Harvard College which will be discussed in greater depth in section II(B)(2).73 Legal colour-blindness has explicitly shaped the way United States law understands equality, but its reach extends beyond the United States, as it covertly operates in New Zealand and beyond.
To understand how colour-blindness operates as a legal tool reinforcing whiteness, I present a three-part analysis. The first part, as already discussed in section II(A), establishes that the status quo is rooted in racial exclusion. This section then details the second stage, which is how colour-blindness labels redress as "discriminatory," obstructing affirmative action policies designed to rectify racial disparities. The final part of the analysis underscores how colour-
70 Martin Luther King Jr. Why We Can’t Wait (New York, Signet, 1964); Martin Luther King Jr. Where Do We Go from Here? Chaos or Community (New York, Harper & Row, 1967).
71 Louis Menand, The Changing Meaning of Affirmative Action, the New Yorker, January 2020,
https://www.newyorker.com/magazine/2020/01/20/have-we-outgrown-the-need-for-affirmative-action.
72 Plessy, above n 41, at 559 (Harlan, dissenting).
73 Students For Fair Admissions Inc. v President And Fellows Of Harvard College 600 U.S. 181 (2023).
blindness protects a status quo steeped in white privilege under a guise of neutrality by promoting a merit-based approach.
The illusion of colour-blindness is that race must be ignored at all costs to preserve neutrality.74 Yet, Critical Race Theory (CRT) scholarship challenges this notion by highlighting how such an approach upholds white supremacy in law.75 This is because colour-blindness not only denies the existence of entrenched racial disparities but frames any attempts to combat them, like affirmative action, as discriminatory.76 In doing so, it safeguards a legal system that has yet to confront its racially biased foundations or the resulting inequalities.
Affirmative action is a form of equal opportunity legislation that seeks to acknowledge racial differences in an attempt to redress historic and systemic racism.77 It is perhaps best explained by President Lyndon B. Johnson in the following quote:
You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'you are free to compete with all the others,' and still justly believe that you have been completely fair.78
Colour-blind rhetoric frames affirmative action laws that genuinely seek to rectify racism as discriminatory for deviating from an already supposedly neutral system.79 This portrayal of affirmative action as reverse racism denies the crucial context that race-consciousness exists to counteract unaddressed disadvantages that racialised minorities face because of an entrenched racist status quo. It also ignores the fact that racial oppression has meaning because of what white people have done to non-white people because of their racial identity.80
Section 12 of the Residential Tenancies Act 1986 (NZ) exemplifies this determinantal effect of colour-blind law. It prohibits discrimination based on race when granting a tenancy
74 Powell, above n 20, at 849.
75 At 838.
76 Crenshaw, above n 15, at xv.
77 At xv.
78 Lyndon Johnson (Howard University Commencement Address 1965, Howard University, Washington D.C., 4 June 1965).
79 Crenshaw, above n 15, at xv.
80 Harris, above n 22, at 1775.
agreement.81 While this may appear fair, it suggests that the current legal system is already neutral, meaning any race-conscious housing policy would be an unjust deviation from this.82 Yet, as has been established, New Zealand’s legal system is not neutral because it is predicated on unredressed racial exclusion through the alienation and theft of Māori land. The repercussions, including poverty, intergenerational wealth gaps and unequal access to resources, unfairly relegate many Māori to inferior tenancies in less prosperous areas than their white counterparts.83 This effectively produces racial segregation through seemingly race- neutral law.84 Such laws obstruct policies aimed at recognising and rectifying race-driven housing inequalities, thereby underscoring how colour-blind laws perpetuate racial disparity when enacted within a system that has not addressed its discriminatory origins.
Colour-blind law turns race relations into a Sisyphean task where strides towards racial equality, through policies like affirmative action, can be legally obstructed.85 Support for colour-blind ideology therefore disguises a desire to maintain resource distribution based on merit not race, because this continues white privilege.86
Opponents of affirmative action advocate for a merit-based system that allocates opportunities based on individual effort and perseverance.87 This insinuates that the “cream rises to the top” without acknowledging that this “cream” is often white.88 Yet this is not because white people are better. It is because the system of meritocracy has been shaped by white people who have had the power to determine the meaning and consequences of merit, and then accrue it in a system designed to value their attributes.89 These hidden race-specific preferences conceal
81 Residential Tenancies Act 1986 (NZ), s 12.
82 Crenshaw, above n 15, at xv.
83 Statistics New Zealand “Te Pā Harakeke: Māori housing and wellbeing 2021” (26 August 2021)
<https://www.stats.govt.nz/reports/te-pa-harakeke-maori-housing-and-wellbeing-2021#overview>
84 Statistics New Zealand, above n 83.
85 Kimberlé Crenshaw “Race, Reform, and Retrenchment: Transformation and Legitimation in Indiscrimination Law” in Kimberlé Crenshaw and Neil Gotanda (eds) Critical Race Theory: The Key Writings that Formed the Movement (The New Press, 1995) 103 at 131.
86 Harris, above n 22, at 1778.
87 Crenshaw, above n 85, at 131.
88 Eduardo Bonilla-Silva “The Central Frames of Racism” in Eduardo Bonilla-Silva (ed) Racism without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States (2nd ed, Rowman & Littlefield Publishers Inc., 2006) 25 at 32.
89 Crenshaw, above n 15, at, pg xxvi.
barriers that influence who is successful and who is less successful.90 Meritocracy thus inadvertently shifts blame for individual hardship and deprivation to poor decision-making rather than systemic barriers. As such, it denies non-white minorities the redistributive resources necessary to address inequity.91
The colour-blind endorsement of meritocracy is clearly demonstrated in the recent United States Supreme Court case of Students For Fair Admissions, Inc. v President And Fellows Of Harvard College.92 The Court ruled that race-based quota policies for college admission were unconstitutional on the basis of discrimination.93 Instead they endorsed a merit-based approach, noting racial preference undermined equality.94 Ironically, meritocracy also undermines equality by privileging the white people who have been able to define, then obtain, merit within a system historically skewed in their favour.95 As history repeats itself,96 the Court’s dismissal of affirmative action as discrimination frames efforts to redress racial disparity as the problem, rather than the issue being unaddressed and embedded racism. This re-victimises the very groups these policies were designed to assist.
The legal rejection of affirmative action exchanges a substantive, race-conscious remedial approach for one that obscures the significance of race and rejects history.97 The favouring instead of a merit-based approach is premised on the notion everyone is the "same," or similarly situated, which ignores history in the name of colour-blindness.98 This means race can be decontextualised and a misleading sense of neutrality can be preserved.99
Colour-blindness is therefore a "neutral" articulation of white privilege. It purports to take no heed of race and focus instead on individual merit. However, the racial underpinning could not be clearer: non-white minorities do not meet (white-defined) criteria, so providing them opportunity will exclude white people who, based on a system of merit, are entitled to take elite
90 Douglas Hartmann and others “An Empirical Assessment of Whiteness Theory: Hidden from How Many?” (2009) 56 Social Problems 403 at 408.
91 Macdonald, above n 51, at 17.
92 Students For Fair Admissions, above n 73.
93 At 2.
94 At 56.
95 Crenshaw, above n 15, at xxvi
96 See Harris, above n 22, at 1766 for an analysis of United States court decisions City of Richmond v J.A. Croson Co. [1989] USSC 15; 488 U.S. 469 (1989) and Wygant v Jackson Board of Education [1986] USSC 166; 476 U.S. 267 (1986) which overturned affirmative action.
97 Powell, above n 20, at 848.
98 Powell, above n 20, at 832.
99 At 832.
opportunities and resources.100 This narrative is not exclusive to the United States. In New Zealand, the University of Otago’s ‘Mirror on Society’ race-based admissions policy to medical school was (almost) legally challenged in 2020.101 While that case was eventually dropped, that it was a topic of public discussion showcases some resistance to race-consciousness.
CRT contributes a vital critique that colour-blindness wears its antiracist pretensions boldly but acts overwhelmingly to protect structural racial inequality.102 Colour-blindness and its system of meritocracy appear perfectly neutral by implying that everyone stands to gain equally under such a system. However, given the racialised foundations of these legal systems that colour- blindness ignores, it becomes a bald assertion of white privilege. Such a stance equates whiteness with competence and universal benefit, while racialised minorities become unfairly labelled as perpetrators of discrimination for selfish ends.103 The resistance to affirmative action, indoctrinated by colour-blindness, allows whiteness to be legally reproduced at the top of the racial hierarchy.
Whiteness, historically entwined with property and privilege, is safeguarded by colour-blind law. Yet, to fully grasp how the legal system perpetuates whiteness, it is central to explore the mechanisms of abstraction and alienation at play.
Legal abstraction operates on the premise that the law judges everyone as identical abstract entities, based on universal and objective standards.104 Using this approach, one cannot demand legal protection tailored to their individual background.105 John Rawls utilised abstraction theory in positing that behind a “veil of ignorance,” where no one knew of their social standing,
100 Powell, above n 20, at 850.
101 Maria Hook, Jane Calderwood Norton and Andrew Geddis “An affirmative case for Otago medical school’s affirmative action policy” (23 September 2020) The Spinoff < https://thespinoff.co.nz/society/23-09-2020/an- affirmative-case-for-otago-medical-schools-affirmative-action-policy>
102 Ian Lopez White by Law: The legal construction of race (10th Anniversary Edition, New York University Press, New York, 2006) at xviii.
103 Powell, above n 20, at 853.
104 Lucy William “Abstraction and the Rule of Law” (2009) 29 OJLS 481 at 482.
105 At 482.
everyone would agree on a theory of justice that does not privilege one group over another.106 On this basis, the legal system is an abstraction. It is colourblind, and blind to all differences. It treats all alike and apparently, equal because it regards all people as having the same bundle of formal legal rights.107 It assumes all citizens can achieve the same standards of conduct regardless of societal positioning.108 As an example, in negligence the legal standard is of reasonable care. This is an abstract and objective standard which is assumed to be in everyone’s equal reach regardless of their individual context.109 This is law’s abstraction.
The implications of abstraction in racial contexts is profound. CRT scholar Derrick Bell explored “decontextualization” to highlight how abstraction masks power dynamics that underpin whiteness.110 Bell explains that legal abstractions are presented as objective and universally applicable truths that in reality overlook systemic racial inequity which produces different outcomes for different groups.111 The decontextualised law pushes lived realities of non-white minorities to the periphery, prioritising generalised and abstracted norms shaped by the experiences of white people in power.112 Bell thus usefully identifies how decontextualised or abstracted legality is key in how whiteness is pervasively reproduced.
Legalised “reasonable” standards are abstractions that reflect white worldviews to the detriment of racialised minorities. As an example, the operation of the stop-and-frisk law in New York City permits police officers to stop and search an individual if there is “reasonable suspicion” they have, are, or are about to commit a crime.113 In practice, the vague and decontextualised standard permits interpretation in line with a white perspective of reasonable suspicion. The result has seen overwhelming use of this law as a method of racially profiling and harassing non-white minorities.114 In New Zealand, the Search and Surveillance Act 2012 employs a similar “reasonable grounds” legal standard in carrying out warrantless searches.115
106 John Rawls A Theory of Justice (Revised ed, Routledge, 2017) at 21-29; Mari J. Matsuda “Liberal Jurisprudence and Abstracted Visions of Human Nature: A Feminist Critique of Rawls' Theory of Justice” (2017) 16 N.M. L. Rev. 613 at 617.
107 William, above n 104, at 484.
108 At 485.
109 At 485.
110 Bell, above n 14, at 901.
111 At 901.
112 Matsuda, above n 106, at 619.
113 Legal Information Institute “Stop and Frisk” Cornell Law School
<https://www.law.cornell.edu/wex/stop_and_frisk>
114 Taahira Thompson “NYPD’s Infamous Stop-and-Frisk Policy Found Unconstitutional” (21 August 2013) The Leadership Conference Education Fund <https://civilrights.org/edfund/resource/nypds-infamous-stop-and-frisk- policy-found-unconstitutional/>
115 See for example: Search and Surveillance Act 2012 (NZ), ss 6-11, 14-18.
The law is itself an abstraction, but it also facilitates abstraction, like the creation of whiteness. In settler states such as New Zealand or the United States, migrant settlers became alienated from their own culture due to geographical and psychological distance.116 Stripped of their identities, Rawls’ “veil of ignorance” theory would suggest this ultimate abstraction would lead to the creation of laws and identity devoid of cultural biases. However, in these settler states, a white identity emerged premised on racialised and abstracted sameness to legitimate their colonial projects of extraction.117 Colonial law enshrined a racial hierarchy where certain races were ostensibly genetically inferior and, therefore, destined to be governed by a “superior” race.118 Using natural law and purported biology, this system endorsed white privilege as being an "objective fact".119 Consequently, an abstracted identity of whiteness premised on purity yet detached from cultural contexts, was legally legitimated and imbued with power.120 Law therefore reproduces whiteness through both being a product and perpetrator of abstraction, necessitating alienation of racialised minorities in its process.
Legal abstraction involves and depends upon alienation. Alienation contains the notion of being separated from the “other” or experiencing a sense of divide between individuals or groups.121 Where everyone has individual experiences, racialised non-white minorities are alienated from their cultures and/or property and subordinated to a supposedly universal legal system designed to overlook and detach their lived realities.
Theories of alienation notably emerged from the thinking of Karl Marx (as heavily influenced by Georg Wilhelm Friedrich Hegel). Marx relates alienation primarily to the capitalistic structure, emphasising the disconnection workers feel from the products of their labour, which
116 Katie Higgins and Jessica Terruhn “Kinship, whiteness and the politics of belonging among white British migrants and Pākehā in Aotearoa/New Zealand” (2020) 47 JEMS 3564 at 3568.
117 At 3568.
118 There is well documented evidence of settlers viewing Indigenous populations as genetically inferior (see: Stewart, above n 50, at 3). This was reflected in laws which prohibited certain races from voting, speaking certain language, owning property, or even having citizenship. See for example: New Zealand Settlements Act of 1863; Native Schools Act 1865; New Zealand Constitution Act 1852.
119 Harris, above n 22, at 1738.
120 For further information on how the law in the United States constructed whiteness through legal cases which set rigid standards for who was “white”, see: Harris, above n 22, at 1738; Lopez, above n 102, at 6.
121 Sujit Debnath “Concept of Alienation in Hegel’s Social Philosophy” (2016) 37 JICPR 51 at 64.
are appropriated by capitalists for profit.122 The intersection of capitalism and race has been explored more in depth by numerous scholars.123 Of importance to my argument is Marx’s theory of the alienability of property as the detachment of oneself from their very essence for survival.124 When a person is alienated from their property, they become alienated from their true nature and, consequently, from other people.125 Individuals come to determine the worth of others based on prevailing standards of value. In his critique of capitalism, Marx identifies this standard as money, which acts as a universal abstraction, converting various individualised forms of value into a singular universally accepted metric.126 Consequently, an individual's self-worth and identity become inextricably linked to this general measure of value, the physical symbol of an abstraction, purely as means to be exchanged for continued survival.127
Drawing parallels to Cheryl Harris’ conception of whiteness as a form of property provides a deeper understanding of the interplay between whiteness and alienation. Marx articulates that one’s property, whether tangible assets such as land or intangible assets such as labour, is a direct extension of oneself.128 However, this property becomes alienated from its owner when exchanged for an abstracted value, represented in Marx’s capitalist critique by money. By corollary, whiteness as one’s property is also an extension of the individual. This racialised property becomes alienated from its owner when the legal system transforms it into an abstracted value. Whiteness is codified in law not as an individual identity but as a commodified property interest, equating it with property, rights, and status. As whiteness is alienated and exchanged for an abstracted notion of privilege, this becomes the universally accepted metric, like money, against which persons determine their worth and other’s worth.129 Non-white racialised minorities must either submit to this metric of whiteness or be othered – and often experience both. Thus, Marx’s theory of alienation and Harris’ perception of whiteness as property reveals a deep entanglement of whiteness and alienation, offering a nuanced perspective on the legal reproduction of whiteness.
122 Debnath, above n 121, at 63; Nancy Leong “Racial Capitalism” (2013) 126 HLR 2151 at 2175; Gajo Petrović
“Marx’s Theory of Alienation” (1963) 23 Philosophy and Phenomenological Research 419 at 421.
123 While racial capitalism may be relevant it is beyond the sizeable scope of this dissertation. For more see: Cedric J. Robinson Black Marxism: The Making of the Black Radical Tradition (Penguin Books Limited, 2021(1983)); Leong, above n 122.
124 Petrović, above n 122, at 421.
125 Karl Marx “Economic and philosophic manuscripts of 1844" in Wesley Longhofer and Daniel Winchester (eds)
Social Theory Re-Wired (2nd ed, Routledge, 2016) 152-158.
126 EK Hunt “Marx’s Theory of Property and Alienation” in Anthony Parel and Thomas Flanagan (eds) Theories of Property: Aristotle to the Present (Wilfred Laurier University Press, Ontario, 1979) at 301.
127 At 299.
128 At 296.
129 Hunt, above n 126, at 301.
The interplay among whiteness, abstraction and alienation in law establishes a self-sustaining cycle that reproduces whiteness. The legal system alienates individuals from their legal claims and then abstracts these claims into generalised legal criteria that appear neutral and fair. This cycle embeds whiteness, in its abstracted form, as the legal benchmark by which all other racial groups are measured and valued. As non-white minorities seek legal remedies, their lived experiences are alienated to align with these abstracted legal criteria. Subordination to this forced alienation re-legitimises law that reproduces whiteness as the universal standard. When people invest money into this legal system, they inadvertently support and continue these processes. Whiteness and law, intertwined in discourse, continually and reciprocally validate and support each other, making efforts to address racial disparities even more challenging.
As a white person, I realise that I had been taught about racism as something which puts others at a disadvantage, but had been taught not to see one of its corollary aspects, white privilege, which puts me at an advantage.130
Critical Whiteness Theory (CWT) identifies the invisibility of whiteness as a central tool preserving its pervasive power. Emerging as an offshoot of CRT and standing on the shoulders of centuries of theorising by people of colour,131 CWT seeks to make visible the unchallenged role of whiteness in maintaining white supremacy and thereby perpetuating systemic racism.132 John Hartigan posited that the central focus of whiteness studies is to understand how white people continuously benefit from seemingly race neutral arrangements.133 Though CWT generally focuses on societal displays of whiteness, this dissertation seeks out its legal manifestations. This section examines the invisibility of whiteness as a fundamental principle of CWT and will subsequently integrate this with the legal perspective of CRT to form a robust framework.
130 Peggy McIntosh “White privilege and male privilege: A personal account of coming to see correspondences through work in women’s studies” in Margaret Anderson and Patricia Hill Collins (eds) Race, class and gender (Wadsworth, California, 1992) 76 at 76.
131 Scholars such as W.E.B. Du Bois, Ralph Ellison, James Baldwin, and Franz Fanon laid crucial foundational groundwork for what has now become Critical Whiteness Studies. See: Tim Engles “Toward a Bibliography of Critical Whiteness Studies” (2006) 51 Faculty Research & Creative Activity at 10.
132 Nolan Cabrera “Cause with effect: critical whiteness studies and the material consequences of whiteness on communities of color” (2022) 35 IJQSE 711 at 711.
133 John Hartigan Jr. “Establishing the Fact of Whiteness” (1997) 99 American Anthropologist 495 at 496.
Whiteness is an invisible bundle of expectations and courtesies.134 Central to its elusiveness is the basic claim that white individuals possess minimal racial self-awareness or understanding of their own privileges.135 Ruth Frankenberg captures this deficiency in her portrayal of whiteness as a privileged "standpoint".136 From this vantage point, white individuals often interpret societal norms and structures as neutral because they are unable to see their own white privilege.137 White privilege refers to the societal advantages implicitly awarded to individuals based on their whiteness, often unacknowledged by those who benefit from it.138
A system of meritocracy is pivotal in sustaining the invisibility of white privilege. While it purports to be neutral and fair by distributing opportunities based on individual capability, merit is often discerned from an abstracted benchmark of whiteness. As a result, white individuals reap societal benefits derived from their racial identity, though it remains unnoticed under the guise of a neutral and fair system. Meritocracy, condoned by colour-blind law, is thus an effective strategy for legitimising the pervasive persistence of white privilege and hegemony.139
While CRT scholars highlight the role of colour-blind law in sustaining systemic racism, CWT scholars underline its role in sustaining white privilege.140 By constructing an understanding of outcomes as the result of impersonal principles like colour-blindness, merit and equal opportunity, white people can be blissfully unaware of the invisible institutional arrangements that reproduce their privilege.141
134 Margaret L Anderson “Whitewashing Race: A Critical Perspective on Whiteness” in Ashley Doane and Eduardo Bonilla-Silva (eds) White Out: The Continuing Significance of Racism (Routledge, New York, 2003) 25 at 25.
135 Hartmann, above n 90, at 406.
136 At 406.
137 At 406.
138 For more on white privilege see: Mills, above n 4, at 11. Mills argues that society is shaped by a tacit agreement among white individuals to privilege their interest at the expense of non-white people: “all whites are beneficiaries of the Contract, though some whites are not signatories to it.”
139 Ashley Doane “Rethinking Whiteness” in Ashley Doane and Eduardo Bonilla-Silva (eds) White Out: The Continuing Significance of Racism (Routledge, New York, 2003) 3 at 13; Robin DiAngelo White fragility: Why it's so hard for white people to talk about racism (Beacon Press, 2018) at 21.
140 Doane, above n 139, at 3.
141 Nancy Ditomaso and others “White Views of Civil Rights: Color Blindness and Equal Opportunity” in Ashley Doane and Eduardo Bonilla-Silva (eds) White Out: The Continuing Significance of Racism (Routledge, New York, 2003) 189 at 198.
III A Framework for a Legal Whiteness Critique
When you are accustomed to privilege, equality feels like oppression.142
Through the intersection of CRT and CWT, I can present a critique of the legal reproduction and reconstruction of whiteness. CRT highlights how legal structures, masked under neutrality, can sustain systemic racism. When synthesised with CWT, it is evident that these legal structures covertly reinforce white privilege. Drawing together the legal tools discussed in this chapter, I propose a framework for a legal whiteness critique. Such critique moves past static conceptualisations of whiteness to reveal ways in which whiteness is being recast.143
The legal whiteness critique as a framework suggests that law reproduces whiteness in a 3-step process, although the steps are not necessarily sequential. This critique seeks to delineate how the legal system covertly maintains and protects whiteness while projecting an aura of neutrality and colour-blindness. The following is an elucidation of this framework.
The first step of the critique involves the alienation and subsequent abstraction of lived experiences by the legal system to present whiteness as a neutral norm. In seeking to form a legal claim as a result of a harm or entitlement, individuals or groups are alienated from their specific contexts. This alienation occurs, so that the unique lived experience can be transformed into the abstracted criteria for a legal claim.
A pertinent example of this process in New Zealand is the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act), which determines the recognition of Māori customary marine title.144 Māori relationships with their lands, waters, and resources are based on complex customary practices and a deep spiritual connection rooted in whakapapa (genealogy) and kaitiakitanga (guardianship).145 However if Māori seek customary title recognition under the Act, they are required to demonstrate their intricate relationship with the foreshore through specific legal criteria.146 This transforms a profound relationship into abstracted property rights,
142 Commonly cited as being said by Steve Lewis, Speaker of the Oklahoma House of Representatives.
143 Doane, above n 139, at 18.
144 Marine and Coastal Area (Takutai Moana) Act 2011, s 58.
145 Garth R. Harmsworth and Shaun Awatere "Indigenous Māori knowledge and perspectives of ecosystems" in John Dymond (ed) Ecosystem services in New Zealand – conditions and trends (Manaaki Whenua Press, Lincoln, New Zealand, 2013) 274 at 276.
146 Marine and Coastal Area (Takutai Moana) Act, ss 58, 59.
founded on racialised ideas of property that historically sanctioned the alienation of Māori lands and imbued whiteness with value. While the Act appears to consider tikanga Māori, it simultaneously reduces it to an evidentiary value for the purpose of allocating property entitlements that, rather than questioning the basis of title or Crown sovereignty, must support it. As such, the seeking of a legal claim subordinates the complex relationships and realities of tikanga Māori to the white possessive.147 This exemplifies how the legal system alienates then abstracts to form a legal claim.
The alienation and abstraction of legal claims reinforces whiteness as a universal legal standard. This is because the system operates based on unredressed racialised foundations and such processes allow the system to continue in this way, thereby protecting white privilege. If a claim contests the prevailing standard of whiteness, the legal system inherently thwarts its fruition. This is because to have a recognised legal claim, it must fit abstracted legal criteria, which necessitates alienation of the claim. Such is the steadfast domination of whiteness. This dynamic was evident following the Māori claim to part of the foreshore and seabed in Attorney General v Ngati Apa.148 This case contested the traditionally white-entrenched status quo of property rights. The law responded with abstracted criteria for customary title (through enacting the Marine and Coastal Area (Takutai Moana) Act 2011) which made contesting the benchmark of white-defined property unfeasible due to the confinement to a system that reproduces whiteness.149 The reciprocal relationship between alienation and abstraction continually protects and validates a seemingly neutral, white standard of justice that side-lines racial realities. This is perpetuated by colour-blind law.
As a second step, the processes of abstraction and alienation normalise whiteness though colourblind law. While colour-blind law, like systems of merit, may seem to offer universal, equal and fair rights, it is merely a manifestation of “decontextualized” claims as highlighted by Derrick Bell.150 By not addressing the racialised foundations of the legal system, law which
147 I make this argument drawing parallels to Aileen Moreton-Robinson’s critique of native land title in Australia, where she showcases how any recognition of land title within a colonial system creates continued subordination of Indigenous groups, and possessively entrenches whiteness as dominant. See: Moreton-Robinson, above n 22, at 68. 148 Attorney General v Ngati Apa [2003] NZCA 117, [2003] 3 NZLR 643.
149 The possibility of a Māori customary claim to the foreshore and seabed was affirmed in Ngati Apa, subject to
certain criteria. The Foreshore and Seabed Act 2008 first overturned this possibility, then the Marine and Coastal Area (Takutai Moana) Act 2011 established a legal criteria for recognition. For more, see: Jacinta Ruru “A Politically Fuelled Tsunami: The Foreshore/Seabed Controversy in Aotearoa Me Te Wai Pounamu / New Zealand” (2004) 113 JPS 57.
150 Bell, above n 14, at 901.
is colour-blind preserves a status quo of white privilege. As an aforementioned example, the commonly used “reasonable standard” in law falsely assumes that all can and will be judged by the same objective standard, despite ingrained and foundational biases.151 However, prioritising decontextualised norms of reasonableness shaped by the experiences of white people in power forces lived realities of racialised minorities to the periphery.152 While the law claims universality in its application, and suggests entitlements are based on a colour-blind and equal foundation, its roots are steeped in racial exclusion. Far from being neutral, colour-blind laws simultaneously stem from and feed back into the processes of abstraction and alienation that continually amplify and entrench whiteness and its associated privileges.
In the final step, the processes of abstraction, alienation, and the façade of colour-blindness are reinforced through a possessive investment in the continuation of these processes. Cheryl Harris and Aileen Moreton-Robinson emphasise the exclusivity of whiteness as a valuable property interest, made even more potent by its scarcity.153 The cunningness of investment in whiteness is that it can be covert, neutral, or even superficially beneficial. Moreton-Robinson's critique of native title in Australia serves as a stark example.154 While the recognition of native title in law by the Australian government appears beneficial for racialised non-white Aboriginals, it is nested within an abstracted legal system that alienates claims not in accordance with its white-defined criteria.155 This underscores a possessive investment in maintaining power dynamics tilted towards white supremacy.156 White individuals, both consciously and subconsciously, invest in maintaining this status quo. As I will explore in the context of third-party litigation funding, this investment can be tangible and seemingly advantageous, yet still covertly reproduces and reconstructs whiteness.
IV Conclusion
This chapter has integrated CRT's focus on the role of legal structures in perpetuating racism with CWT's examination of social dynamics that pervasively privilege whiteness. It has proposed a three-step framework centralised on exposing how whiteness is legally reproduced
151 William, above n 104, at 485.
152 Matsuda, above n 106, at 619.
153 Harris, above n 22; Moreton-Robinson, above n 22.
154 See generally: Moreton-Robinson, above n 22.
155 At 77.
156 At 77.
through abstraction, alienation, and colour-blindness, all obscured by perceived neutrality. This framework will be employed in Chapter 3 to critique whether the ostensibly race-neutral arrangement of third-party litigation funding is in fact, racially charged. Such analysis seeks to highlight how legal arrangements that appear devoid of racial implications harbour processes of abstraction and alienation to reinforce whiteness.
Chapter 2: Third-Party Litigation Funding
I Introduction
Access to the courts is the constitutional right of every citizen ... no unnecessary monetary obstacle should be placed in the path of those who seek access to the courts.157
Third-party litigation funding (TPLF) is a legal arrangement where an external party funds a plaintiff’s lawsuit in return for a share of any resulting award or settlement.158 The lawsuits which tend to be funded are commercial claims and class actions (referred to as representative proceedings in New Zealand) due to their ability to generate the most potential for a return on investment.159 TPLF has re-emerged as a significant development in civil litigation and accordingly attracted polarising views as various jurisdictions have debated its costs, benefits and regulatory needs.160 What appears uncritiqued however, are its racial implications.
It is improtant to note that the TPLF industry operates differently in various jurisdictions due to unique legal landscapes. This dissertation cannot cover all differences and nuances in detail here.161 The focus is more broadly on the concept of third parties investing in litigation to receive a profit, rather than the differing legal regulation of TPLF. For clarity, my analysis of TPLF centres on its operation in New Zealand, borrowing discussions from the United States and Australia due to their long-standing discussion on TPLF.
157 Byrne v Ireland [1972] 1 I.R. 241 at 12.
158 Christopher Hodges and others Litigation Funding: Status And Issues Research Report (Centre for Socio-Legal Studies, Oxford Legal Studies Research Paper No. 55/2012, September 2012) at 10.
159 Wayne Attrill “Australia: Litigation Funding Comparative Guide” (23 March 2023) Pencarrow Associates Pty
Limited <https://www.mondaq.com/australia/finance-and-banking/1285402/litigation-funding-comparative-guide>; Maya Steinitz "Whose claim is this anyway-Third-party litigation funding" (2010) 95 MLR 1268 at 1277; David Abrams and Daniel Chen “A Market for Justice: A First Empirical Look at Third party litigation funding” (2021) 15 UPJBL 1075 at 1084; Peta Spender “After Fostif: Lingering Uncertainties and Controversies About Litigation Funding” (2008) 18 JJA 101 at 110.
160 Jasminka Kalajdzic and others “Justice for Profit: A Comparative Analysis of Australian, Canadian and U.S. Third
Party Litigation Funding” (2013) 61 AJCL 93 at 93.
161 The United States has a particularly different approach to TPLF as it has roots in personal injury and tort actions. Today it has three types of TPLF arrangements; nonrecourse loans to individuals, loans to law firms, and funding complex commercial claims. It has a limited market for funding class actions because it permits lawyer contingency fees, unlike New Zealand, which means lawyers can secure their fees based on the pay-out of a case which renders third party funding unnecessary. For more information on the United States’ litigation financing regime see: United States Government Accountability Office Third-Party Litigation Financing: Market Characteristics, Data, and Trends (GAO Highlights, GAO-23-105210, December 2022). For a comparative analysis of the United States, Canada and Australia, see: Kalajdzic,, above n 160, at 129.
This chapter provides a brief history of the development of TPLF and its interface with maintenance and champerty before delving into the logistics of TPLF and how it legally operates in New Zealand. It then provides a literature review of proponents and critics of TPLF who debate whether it is a bid for access to justice, or a commodification of justice.162 This review will reveal that a racial critique is missing from the debate thus far.
II History
A brief history of the development of TPLF underscores recurring concerns about its role in preserving powerful vested interests and challenging the integrity of the judicial system. In medieval England, wealthy landowners used litigation as an economic weapon to further personal interests by financing others' property disputes in return for claiming portions of the adjudicated land as reward.163 This manipulation by society’s elite led the common law courts to view litigation funding for profit as unlawful for offending against the ancient doctrines of maintenance and champerty.164 Lord Mustill noted that historical prohibitions on TPLF were introduced because the justice system could not withstand the undue influence of, “unscrupulous men of power.”165 However, its prohibition in effect achieved the opposite by gatekeeping justice for society’s elite.166
The development of maintenance and champerty as both crimes and torts in medieval England prohibited third parties from funding or maintaining litigation.167 Maintenance is the wrongful aiding and abetting of litigation by a party who has no interest in the proceedings, and champerty is a type of maintenance that agrees to divide litigation proceeds between the owner of the litigated claim and an unrelated party who supports the claim.168 Prohibiting these arrangements was introduced to safeguard the integrity of the justice system by discouraging profit-making, excess litigation, bribing of witnesses, pursuance of worthless claims, and
162 Kalajdzic, above n 160, at 95.
163 Gian Marco Solas “A Historical Overview” in Third Party Funding: Law, Economics and Policy (Cambridge University Press, 2019) at 25.
164 Saunders v Houghton [2009] NZCA 610, [2010] 3 NZLR 331 at [24]; Marco, above n 170, at 17.
165 Giles v Thompson [1993] UKHL 2, [1994] 1 AC 142 at 1.
166 Steinitzt, above n 159, at 1299.
167 Marco, above n 163, at 24.
168 Joshua G. Richey “Tilted scales of justice the consequences of third-party financing of American litigation” (2013) 63 ELJ 489 at 502.
effective third-party control.169 In essence, TPLF was banned in an attempt to stop the legal system from merely preserving vested, powerful interests.
However, the twentieth century saw a shift in attitude towards TPLF as concerns mounted that its prohibition hindered financially constrained individuals from accessing justice.170 The dilemma was such that while the torts of maintenance and champerty sought to prevent exploitation by the affluent, it paradoxically made legal recourse a luxury only the affluent could afford. Only the independently wealthy individuals could bring a case to court.171 This meant that contrary to intent, the judicial system catered almost exclusively to those with significant resources and power. Thus as the legal system became more formalised and less prone to outside corruption from vested interests (or so it seemed),172 a relatively recent series of New Zealand court decisions have given TPLF the judicial green light.173
TPLF re-emerged as an instrument to place justice in reach of the disadvantaged and level the playing field against the power monopoly of the wealthy.174 It has been lauded as allowing marginalised individuals to exercise their rights and defend their interests.175 The use of TPLF underwent a transformative shift as maintenance and champerty were rendered archaic and obsolete in many jurisdictions.176 However, despite changing views, as the law develops, debate remains over the use of TPLF.177
III The Mechanics of Third-party Litigation Funding
A general explanation of how TPLF typically operates forms a foundation for understanding how investment firms acquire a property interest in alienated commercial legal claims. Grasping this foundation is pivotal when segueing into a deeper racial legal analysis of TPLF
169 Spender, above n 159, at 103-104; PricewaterhouseCoopers Inc and Others v National Potato Co-operative Ltd
[2004] ZASCA 64, [2004] 3 All SA 20 at [30]; Steinitzt, above n 159, at 1299.
170 Marco above n 163, at 17.
171 Lord Neuberger “From Barretry, Maintenance And Champerty To Litigation Funding” (Harbour Litigation Funding First Annual Lecture, Gray’s Inn, 8 May 2013) at [33].
172 Abrams and Chen, above n 159, at 1083.
173 See generally: Saunders, above n 170; Waterhouse v Contractors Bonding [2013] NZSC 89, [2014] 1 NZLR 91;
PricewaterhouseCoopers v Walker [2017] NZSC 151, [2018] 1 NZLR 735.
174 Lord Neuberger, above n 171, at [33].
175 Ronald Sackville “Some Thoughts on Access to Justice” (2004) 2 NZJPIL 85 at 86.
176 Australia has outright abolished the doctrines of maintenance and champerty. The United States has diverse state- level stances, where some states have abolished them entirely, whilst others have construed them so narrowly as to permit TPLF. New Zealand has not abolished the doctrines and their stance remains unclear. See: Law Commission Class Actions and Litigation Funding (NZLC PP45, 2020) at 286; Attrill, above n 159, at 2.
177 Sections IV and V in this Chapter delve into such debate.
as a tangible investment in whiteness. This section provides a general overview of TPLF, touching on its legality, interplay with class actions, and the role of investment firms. As my focus is on the broader arrangement of third parties investing in litigation and not its specific legality, this overview does not discuss proposed reform or regulation of TPLF.178
At its simplest, TPLF is an arrangement where a financier who is not party to a lawsuit agrees to fund a litigant (typically a plaintiff) in exchange for a portion of any settlement or award at trial.179 Funding can be full or partial, covering costs of court fees, lawyer fees, and expert fees.180 The funder has no direct interest in the outcome, other a return on their investment.181 Virtually all litigation finance transactions are “nonrecourse”, meaning the funder’s return is secured only by awarded proceeds from the funded case. If the case fails, the funder recovers nothing.182 If the case is successful, the funder will be reimbursed for costs of litigation plus agreed interest.183 It is difficult to discern exact funder profits as most settlements are confidential. Although New Zealand has little data on this, research in Australia found the median funding commission charged by litigation funders in class actions from 2013 to 2018 was 25.5 per cent in addition to repayment for capital invested (for example, legal fees paid).184 In the United States, prominent litigation funding firm Burford Capital noted if their investment is successful, they will “largely double [their] money.”185
A diverse range of parties utilise TPLF to navigate the financial risks and costs of lawsuits. While financing for defendants is possible, it is seldom used in practice.186 In class actions, plaintiffs often rely on TPLF as individual claims can be small and not financially viable to pursue on their own.187 Insolvency practitioners often leverage it to reclaim assets for
178 For more information on the current legal status of TPLF in New Zealand and options for legal reform, see: Law Commission, above n 176, at 361-374.
179 Hodges, above n 158, at 571.
180 At 10.
181 Abrams and Chen, above n 159, at 1083.
182 Suneal Bedi and William C. Marra “The Shadows of Litigation Finance” (2021) 74 VLR 563 at 574.
183 Law Commission, above n 176, at 244.
184 At 116.
185 Lesley Stahl “Litigation Funding: A multibillion-dollar industry for investments in lawsuits with little oversight” (23 July 2023) CBS News <https://www.cbsnews.com/news/litigation-funding-60-minutes-transcript-2023-07-23/>
186 Bedi and Marra, above n 182, at 571.
187 Law Commission, above n 176, at 246.
creditors.188 Commercial entities use it not only to assert valid claims but also for effective capital management and to maintain profitability—even solvent firms might opt for TPLF to optimise capital use.189 In jurisdictions allowing contingency fees, like the United States and United Kingdom, law firms might employ TPLF to balance cash flows and reduce risks.190 This practice is not observed in New Zealand.191
Plaintiffs turn to TPLF primarily due to liquidity constraints or a desire to distribute risk.192 Liquidity issues arise where claimholders lack the financial means to pursue litigation, have their capital engaged elsewhere, or need to allocate funds for other personal or corporate obligations. 193 Litigation is also risky as the outcome can depend on uncontrollable factors, which means risk-averse litigants may be unwilling to devote finite resources to pursue what could be valuable legal claims.194 This dynamic prescribes an inherent value to litigation and has created a growing market for TPLF as funders seek to stake a property interest in potentially valuable claims as an investment opportunity.195
In New Zealand, TPLF has entered the legal landscape without formal regulation.196 Historically, the torts of maintenance and champerty prohibited TPLF. While some jurisdictions have distinctly abolished these doctrines, New Zealand’s stance remains uncertain.197 The Supreme Court in Waterhouse v Contractors Bonding Ltd did affirm the underlying policy of maintenance and champerty to protect the integrity of the courts and the parties as remaining part of New Zealand law.198 To date however, there have been no examples in New Zealand of funding arrangements giving rise to a claim based on these torts or being deemed unenforceable due to public policy concerns.199
188 In New Zealand the first use of litigation funding the Law Commission identified was in the insolvency context in
Re Nautilus Development Ltd (in liq) [2000] 2 NZLR 505 (HC). See: Law Commission, above n 176, at 246.
189 Law Commission, above n 176, at 246.
190 At 247.
191 At 27.
192 Bedi and Marra, above n 182, at 578.
193 At 578.
194 At 579.
195 At 580.
196 Law Commission “Ko ngā Hunga Take Whaipānga me ngā Pūtea Tautiringa | Class Actions and Litigation Funding” (2022) New Zealand Government <https://www.lawcom.govt.nz/our-projects/class-actions-and-litigation- funding>
197 Law Commission, above n 176, at 286.
198 See generally: Waterhouse, above n 173 at [25]–[26]; PricewaterhouseCoopers v Walker , above n 173, at [111].
199 Law Commission, above n 176, at 260.
New Zealand courts have preferred evaluating litigation funding agreements from an abuse of process perspective rather than through the archaic lens of maintenance and champerty.200 This shift was evident in the case of Auckland City Council as Assignee of Body Corporate 16113 v Auckland City Council where the High Court noted a decreasing reliance on the maintenance and champerty in favour of prioritising public access to justice.201 The Court suggested these archaic mechanisms have become obsolete given the court's ability to prevent abuse of process and protect the vulnerable.202 The Supreme Court’s judgement in Waterhouse v Contractors Bonding further illustrates this stance, indicating an abuse of process arises if a litigation funding arrangement effectively assigns a cause of action to a third party in circumstances where it is not permissible.203 Thus while the torts of maintenance and champerty are yet to be formerly abolished, New Zealand courts permit TPLF so long as it does not involve an abuse of process.
The New Zealand courts have adopted a cautiously permissive approach to litigation funding. They explicitly embrace a supervisory jurisdiction over third-party funding arrangements of class actions due to concerns over abuse of process, and given the weight of class actions in enabling one plaintiff to bind many.204 Nevertheless, the courts have been pragmatic in expressly recognising potential benefits of TPLF in promoting access to justice and await an appropriate claim to clarify potential availability of remedies against funders, under the torts of maintenance and champerty.205 There is however no legislated regulation of TPLF in New Zealand as of yet, but it is coming.206
The litigation funding scene in New Zealand is growing. In 2020 there were forty identified cases of a plaintiff receiving litigation funding, with numbers likely to have risen since then.207
200 At 261.
201 Auckland City Council as Assignee of body Corporate 16113 v Auckland City Council [2007] NZHC 1411; [2008] 1 NZLR 838 (HC) at [45].
202 Auckland City Council, above n 201, at [45]– [46].
203 Waterhouse v Contractors Bonding Ltd, above n 173, at [57]. Jurisprudence lacks clear definition of what a bare cause of action is, however some unassignable claims include rights to sue for tort, unliquidated damages for breach of contract, and rights to sue in equity. See: BC Bailey “Litigation Funding: Some Modest Proposals” (LLB (Hons) Dissertation, University of Otago, 2018) at 10.
204 Law Commission, above n 176, at 264.
205 WilsonHarle “Litigation Funding in New Zealand” (2023) Wilson Harle Barristers & Solicitors
<https://wilsonharle.com/legal-information/nz-legal-guides/litigation-funding-in-new-zealand>
206 The New Zealand Government responded to the Law Commission’s recommendations in relation to class actions and litigation funding in 2022 and said it intended to begin policy work to advance them in 2023. It noted this would take time and be balanced against other Government policies. See: Law Commission, above n 195.
The types of claims funded have been class actions, insolvency proceedings, insurance proceedings, negligence claims, breach of fiduciary duty, statutory demand for repayment of a loan, a relationship property claim, and a land claim.208 The New Zealand Law Commission also identified five domestic based litigation funders and six overseas based funders operating in New Zealand.209 LPF Group is the largest and advertises it will consider funding claims worth $2,000,000 NZD or more. The general scope for receiving litigation funding in New Zealand appears to be between (at a low minimum) $200,000 - $5,000,0000 NZD.210 The market is small due to the newness of TPLF, it lack of regulation, and the uncertainty about its legal status.211 However it is likely to only increase, particularly given its success in Australia, and incoming legislated regulation.
Class actions enable a collective of individuals with shared legal or factual claims to have their cases resolved in a single proceeding.212 Litigation funding is crucial for these group lawsuits, given their high costs and complexity. This is especially evident in consumer lawsuits where individual claims are small in value, making it difficult for claimants to cover legal expenses themselves. As contingency fees are not permitted in New Zealand, TPLF often becomes the only viable option.213 Thus, an increase in litigation funding has correlated to an increase in class actions.214 The structure of class actions brings additional challenges for litigation funding, necessitating more judicial oversight due to the passive involvement of a larger group.215
While there are various legal requirements to bring a class action,216 the primary requirement is establishing “commonality,” or a common issue of fact or law among all class members. This means class actions aggregate claims into one generalised legal claim, and aggregate class members who share this degree of commonality. Usually, in common law jurisdictions, classes are formed on an ‘opt-out’ basis, where those who fall within the class definition become part
208 Law Commission, above n 176, at 252-255.
209 At 255.
210 At 257.
211 At 257.
212 At 262.
213 At 27.
214 At 245.
215 At 27.
of the class unless they specifically opt out.217 However there are also ‘opt-in’ proceedings where individuals must actively join the proceeding to become part of the class. Any decision on common issues is binding on all class members, meaning no individual can relitigate those issues.218 Due to the ability for class actions to “enable one plaintiff to represent, and to bind, many”,219 courts endeavour to ensure funding arrangements do not constitute an abuse of process. To do this, they examine the details of the funding agreement to ensure there are no unfair, oppressive, or misleading elements present. Should such concerns arise, courts will refuse to grant leave to the arrangement.220
Class actions also require an elected representative class member who will bear any adverse costs orders. As the costs of a class action are often substantial, the potential pay-out is as well.221 For this reason, class actions have been described as “entrepreneurial in nature”, and they have provided a business opportunity for litigation funders.222 Thus while TPLF is not limited to class actions, many class actions would be unable to proceed without it.223 It is common in New Zealand for litigation funding to be the key method of financing class actions.224
The interface between TPLF and class actions has dual outcomes. On one hand it allows individuals with limited resources to collectively seek redress without shouldering immediate financial burden. On the other, the increasing use of TPLF has catalysed an increase in class actions. The essence of class actions is aggregation and abstraction of harm for economic purposes. This limits what constitutes a recognisable harm for a class action as it is dependent on there being a specific type of harm that is commonly shared amongst a class. To receive funding, a claim must also be seen as profitable to justify funding. This narrowing and exclusionary practice cultivates and disguises racial implications, and is what TPLF invests in.
217 Law Commission, above n 176, at 37.
218 At 38.
219 Southern Response Earthquake Services Ltd v Southern Response Unresolved Claims Group [2017] NZCA 489, [2018] 2 NZLR 312 at [78].
220 Law Commission, above n 176, at 264.
221 At 36-37.
222 At 38.
223 Law Commission, above n 195.
The investment firms which provide litigation funding tend to be private equity, hedge funds, trusts, and other deep-pocketed investors that can afford to take on risk.225 The process of funding claims varies between funders; some wait to be approached whereas others actively seek out funding opportunities after hearing about them in the media.226 Cases sought are those where risk is small and estimated probability of winning a substantial settlement is large.227 Generally, a high degree of initial screening and formal due diligence is carried out in deciding whether to fund a case. Funders will examine estimated merits and quantum of the case, enforceability against the defendant, and the plaintiff’s legal representation.228 In Australia, it was estimated that two in twelve cases considered by a funding panel would be successful.229
Financiers base interest fees and funding costs off of the estimated case settlement value. In return, they claim a monetary stake in the final payment. This disbursement is structured as a non-recourse loan which allows for high premiums.230 Commercial third-party litigation financiers may command as much as half of a potential court settlement in exchange for taking on the risk of covering lawyer costs and other case-related fees.231
In practice, many third-party funders obtain a degree of de facto control over their investments, often without explicit contractual authority.232 Funders can play a more active or passive role in the conduct of the litigation depending on the terms of the funding agreement and the jurisdiction in which they operate.233 A passive funder mostly pays the bills for litigation expenses, whereas an active funder also has input into decisions about the conduct of the litigation.234 Funders may take a more active role in class actions because the representative plaintiff may have weaker incentives to monitor and direct the lawyer as they share any sum
225 Insurance Information Institute What is third-party litigation funding and how does it affect insurance pricing and affordability? (The Institutes, 27 July 2022) at 3.
226 Law Commission, above n 176, at 248.
227 Abrams and Chen, above n 159, at 1088.
228 Law Commission, above n 176, at 248-249.
229 Australian Taxation Office Your case matters: Tax and superannuation litigation trends - 3rd edition (Australian Government, July 2007 - December 2012) at 31.
230 Insurance Information Institute, above n 224, at 3.
231 At 3.
232 Radek Goral “Justice dealers: The Ecosystem of American litigation finance” (2015) 21 SJLBF 98 at 104.
233 Law Commission, above n 176, at 245.
234 At 246.
recovered.235 However, in New Zealand, if control amounts to assigning a bare cause of action, the agreement will not be upheld.236 While funders are not permitted to exercise total control of the litigation as this would be deemed objectionable,237 they still obtain a property interest in the litigation by having a vested interest, and direct ownership over a portion of any awarded sum.
Investment firms obtain a property interest in commercial cases, entering agreements to benefit from an abstracted harm or claim. This arrangement appears neutral and even beneficial, however, when critically assessed, two polarising perspectives emerge.
IV Justifications
The following provides a literature review of prominent justifications for TPLF. Proponents of TPLF often cite its potential advantages as improving access to civil justice and levelling the playing field against the wealthy monopoly, reducing the risks of litigation, and fostering healthy development of the law.238
Advocates for TPLF argue it enhances access to civil justice for plaintiffs who might otherwise be unable to afford litigation.239 Broadly, access to justice champions the idea that everyone should have effective means to protect their legal rights, underscoring the principle of equality before the law which is rooted in human dignity and political equality.240 No monetary obstacle should therefore be placed in the path of those seeking to access justice.241 As touched upon in the history of TPLF, its prohibition resulted in the powerful securing an effective monopoly on justice.242 "Access to justice" thus became emblematic of the aspiration to mitigate legal disparities stemming from societal inequalities.243 Given its profound implications, it is unsurprising that access to justice is often cited as a justification for TPLF because giving a
235 Law Commission, above n 176, at 246.
236 See: PricewaterhouseCoopers v Walker, above n 173, at [116].
237 BC Bailey, above n 203, at 12; Omni Bridgeway “Litigation Funders: Champions or Champertous?” (1 December 2017) Omni Bridgeway <https://omnibridgeway.com/insights/blog/blog-posts/global/2017/11/30/litigation-funding- champions-or-champerty>
238 Law Commission, above n 176, at 291.
239 Richey, above n 168, at 499.
240 Sackville, above n 175, at 86.
241 Hilary Biehler “Maintenance and Champerty and Access to Justice – The Saga Continues” (2018) 59 Irish Jurist 130 at 136.
242 Lord Neuberger, above n 174, at [33].
243 Sackville, above n 175, at 86.
plaintiff their day in court is seen as socially desirable.244 If low-income plaintiffs or businesses were unable to bring meritorious claims due to cost barriers, there would be suboptimal deterrence of wrongful behaviour.245 TPLF therefore promotes access to justice by providing access to courts for plaintiff’s with limited financial resources.246
Litigation funding also has the power to redistribute justice by reducing the powerful elite’s grip on justice.247 As articulated by Marc Galanter, the inherent structure of the legal system “creates and limits the possibilities of using the system as a means of redistributive change.”248 He distinguished between two types of litigants: "one-shotters" and "repeat players." The former, often individual litigants like tenants or wrongfully terminated employees, typically have high stakes in their singular cases.249 On the other hand, "repeat players" like insurance companies or banks, routinely engage in similar litigation and possess the resources and expertise to navigate the system to their advantage.250 While this categorisation may be reductive, it underscores the disparity in resources and experience between individual and institutional litigants. Big players, familiar with the system, can strategise for long-term benefits. However, individuals may not want to flirt with the risk of short-term loss in favour of long-term gain that will likely accrue to someone else.251 TPLF therefore absorbs the risks of litigation and aligns structurally weak “one-shotters” who make infrequent use of the courts with powerful funders who make repeated use of the courts. TPLF therefore has the ability to alter bargaining dynamics by empowering the less privileged to negotiate from a position of greater strength, thereby promoting a more equitable justice system.252
TPLF provides a solution for plaintiffs wary of the unpredictable nature of legal outcomes.253 Even if financially capable, many plaintiffs are risk-averse and may settle for less than a claim's actual value to sidestep potential losses.254 Such settlements can deter valid claims, leading to insufficient deterrence of wrongful behaviour. TPLF addresses this by distributing the risk and
244 Sackville, above n 175, at 86.
245 Richey, above n 168, at 499.
246 At 499.
247 Steinitzt, above n 159, at 1271.
248 Marc Galanter “Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change” (1994) 91 LSR 95 at 95.
249 At 98.
250 At 98.
251 Steinitzt, above n 159, at 1301; Galanter, above n 248, at 98.
252 Steinitzt, above n 159, at 1301.
253 Richey, above n 168, at 499.
254 Ronen Avraham and Abraham Wickelgren "Third-Party Litigation Funding - A Signalling Model” (2014) 63 DPLR 233 at 246.
costs associated with litigation, making it less daunting for plaintiffs.255 This can lead to an increase in access to substantively just outcomes and meritorious cases.256 Litigation funders that have extensive experience can provide a plaintiff a more objective perspective of the claim, a clearer understanding of strengths and weaknesses, a commercial assessment of quantum and duration, and potential difficulty of enforcement and recovery.257 In this way, TPLF increases access to justice by identifying and then funding meritorious claims.
Support for TPLF is often framed in terms of its perceived benefits, such as enhancing access to justice, levelling the legal playing field, and assisting the underprivileged. However, as highlighted in Chapter 1, even seemingly beneficial arrangements can mask underlying vested interests, including those linked to race. A deeper exploration of these dynamics will be undertaken in Chapter 3.
V Concerns
This section provides a literature review of the main critiques of TPLF. Critics of TPLF cite potential disadvantages as including ethical concerns of commodifying of justice, burdening the court system, and encouraging meritless litigation.
Critics argue that TPLF transforms justice into a commodity rather than preserving its status as a public good.258 This is because the ultimate aim of financiers is not to facilitate access to justice, but to ensure financial returns.259 As such, TPLF has been labelled, “a travesty of justice that turns courts into casinos.”260 TPLF associates litigation with hedging bets, maximising profits, and ownership of an asset.261 This commodification of justice has been argued as constituting an abuse of process for misuse of court processes to generate profit.262 For example, the High Court of Australia in Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd noted, if courts exist to serve justice, then turning them into profit-making avenues is an abuse
255 Richey, above n 168, at 499.
256 Law Commission, above n 176, at 293.
257 At 298.
258 Spender, above n 159, at 110.
259 JM Shepherd “Ideal versus reality in third-party litigation financing” (2012) 8 JLEP 598 at 600; See also Avraham and Wickelgren, above n 254, at 235.
260 Goral, above n 232, at i.
261 Bedi and Marra, above n 182, at 571.
262 BC Bailey, above n 203, at 42
of their primary function.263 There is a prevalent discomfort with third parties profiting from disputes that they have no personal stake in. It transforms justice, a revered principle, into a financial transaction, and introduces market values into a domain that should be beyond market influences.264
There are also concerns that TPLF’s widely cited justification of increasing “access to justice” is flawed given its confinement to high-value commercial claims.265 In Waterhouse v Contractors Bonding, the New Zealand Supreme Court highlighted that funders prioritise cases promising returns that justify litigation expenses and risks, suggesting that the "access to justice" argument might be overstated.266 Importantly, the areas where the demand for legal services and access to civil justice are greatest – housing, credit/debt, and employment – remain unserviced.267 Furthermore, public interest cases or those seeking non-monetary resolutions, such as Waitangi Tribunal inquiries, are unlikely to attract TPLF due to their lack of economic viability, even if they are meritorious or in the interests of justice.268 TPLF therefore shifts the focus from seeking justice to pursuing returns on investment. 269
As legal claims evolve into pure commodities when perceived as an investment, they are assigned a quantifiable dollar value, devoid of intrinsic worth. This commodification has socially undesirable consequences, such as the complete monetisation of legal recoveries and rendering non-monetary remedies unattractive.270 There is also concern in relation to securitisation of funding agreements, where funders package their investments for sale in a secondary market.271 Such practices amplify the influence of vested interests who have no proper reason to be concerned with the litigation.272 In this way, TPLF alienates litigation further away from its proper function in seeking to serve justice, as well as from the specific context of claimants. Instead, justice is placed in the hands of vested interests, which, as I argue below, have become about preserving whiteness.
263 Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43, [2009] 239 CLR 75 at [61].
264 Byroger Parloff “Have you got a piece of this lawsuit?” (29 June 2011) Fortune
<https://fortune.com/2011/06/28/have-you-got-a-piece-of-this-lawsuit-2/>; Bradley Wendel “Alternative Litigation Finance and anti-Commodification Norms” (2014) 63 DPLR 655 at 657.
265 Avraham and Wickelgren, above n 254, at 239.
266 Waterhouse, above n 173, at [41].
267 Spender, above n 159, at 110.
268 Law Commission, above n 176, at 292.
269 Bedi and Marra, above n 182, at 571.
270 Steinitzt, above n 159, at 1321.
271 Law Commission, above n 176, at 341.
272 At 341.
Even if TPLF does increase access to justice, there are further concerns over funder profits. As aforementioned, litigation funders claim a (sometimes) substantial portion of a plaintiff’s recovery. Concerns arise as there is an imbalance in bargaining power because plaintiffs are dependent on litigation funding to pursue their claim and may be unable to effectively negotiate a fair funding commission.273 This concern may be more prevalent in class actions where the plaintiffs may be less commercially astute and may have no experience in civil litigation. Regardless, excessive profits for financiers that reduce a claimant’s recovery could corrode public perceptions of the civil justice system and of TPLF as a tool for accessing justice.274
According to the critical view, the infusion of money into a realm where it seems incongruous only serves to exacerbate inequality and dilute the sanctity of justice. The existing legal system has long been congruous with representing vested interests of those financially secure enough to access it at the expense of eroding the intrinsic value of justice.275 This continues when TPLF equates money with the representation of justice. In Chapter 3, I argue this system alienates and decontextualises justice from the individual, carrying implications that extend beyond the commodification of justice. If justice predominantly hinges on a profit-defined criteria, then only those with vested interests are able to access justice. This allows vested interests who have historically shaped the law in their favour to continue to do so. I contend this vested interest has become synonymous with whiteness, which is legally reproduced through TPLF.
VI Conclusion
Third-party litigation funding (TPLF) stands at a crossroads of increasing access to justice and protecting commercial interests. Its resurgence is defended by proponents who see it as a mechanism to promote access to justice that has the potential to level a playing field skewed in favour of the wealthy. Conversely, critics argue that TPLF commodifies justice, turning courts into a stock exchange or casino, and litigation into a commodity. This compromises TPLF’s ability to be a defender of fairness and equity – it does not improve it.
273 Law Commission, above n 176, at 341.
274 At 341.
275 Lincoln Caplan “Lawyers and the Ick Factor” (9 July 2015) The New Yorker
<https://www.newyorker.com/news/news-desk/lawyers-and-the-ick-factor>
The debate on TPLF, while extensive, appears to overlook its potential racial implications. While some argue it is a neutral or even benevolent system, it seems to reinforce existing power structures, particularly those rooted in whiteness. As touched upon in Chapter 1, legal arrangements which appear neutral or even beneficial can allow systems of whiteness to remain unchallenged. TPLF as an arrangement that commodifies justice whilst abstracting and alienating legal claims, may mean that it unintentionally reinforces a system that allows for the domination of one group over another in the name of economic maximisation and production.276 As further explored in the next chapter, TPLF can be viewed as a "white saviour" construct, which claims to help the disadvantaged but ensures that the reins of power remain with the existing dominant group.
276 Cara Nguyen “The Relationship Between White Supremacy and Capitalism: A Socioeconomic Study on Embeddedness in the Market and Society” (2020) 4 SUURJ 7 at 15.
Chapter 3: A Legal Whiteness Critique of Third Party Litigation Funding
I Introduction
How do we rectify a system that so brilliantly serves its intended purpose?
– Dorothy E. Roberts.
Third-party litigation funding (TPLF) appears to be a neutral legal arrangement, designed to fairly promote access to justice for all. By seeking to address economic barriers to civil justice, the re-emergence of TPLF seems to challenge the stronghold the wealthy have historically maintained over access to the courts.277 Yet its reception has not been unanimously positive as critics have pointed to ethical and regulatory concerns. What remains unexplored, is whether TPLF inadvertently perpetuates systemic racial inequity. This chapter therefore uses the framework for a legal whiteness critique outlined in Chapter 1 to analyse potential racial implications of TPLF. While the re-emergence of TPLF has been justified by a cited ability for the legal system to better defend against outside corruption,278 I contend that the legal system has not yet resisted the powerful construct of whiteness. Even if TPLF is an attempt to solve issues of access to justice, it has inadvertently created a re-investment in white privilege.
II Alienation, Abstraction, and Third-Party Litigation Funding
Understanding how alienation and abstraction manifest in TPLF is an improtant first step in understanding how TPLF is reproduces and reinforces whiteness as the predominant norm. As explained in the framework at Chapter 1(III), legal claims are alienated and then abstracted so as to appear universal, fair and equal. However, this is a process reinforces white privilege where the legal foundation is based on unredressed and unjust racial biases. TPLF as a legal arrangement also perpetuates, and is subject to, processes of abstraction and alienation.
Foremost, TPLF as a legal arrangement both alienates and abstracts. Parties who seek funding must ensure their legal claim fits both within the abstracted criteria of a legal claim, but also within the financier’s abstracted criteria for funding. The key criteria litigation financiers
277 Lord Neuberger, above n 171, at [33].
278 Abrams and Chen, above n 159, at 1083
examine are whether the claim has merit (discussed at greater depth in the next step), whether the case can provide a return on the financier’s investment, the defendant’s ability to pay, as well as the calibre of the plaintiff’s proposed legal representation.279 Fewer than 10 per cent of cases will meet this initial criteria.280 If a case does meet these criteria, a contractual funding agreement will be made, outlining terms and conditions.281 This further alienates the claim from its individual context, reducing it to an abstracted legal agreement premised on a return on investment. The repeated abstraction and alienation of legal claims is how TPLF contributes towards maintaining whiteness as the default standard, side-lining diverse experiences and failing to redress racialised foundations.
In addition, the role of TPLF in commodifying legal claims also highlights a deeply embedded system of abstraction and alienation. It has already been established how the legal system alienates and abstracts legal claims to reproduce whiteness. The involvement of TPLF however, when rooted in a return-on-investment paradigm, deepens these processes to entrench whiteness and profit as the benchmark value of justice. TPLF alienates legal claims from their contexts by exchanging them for an abstract monetary value. As financial value is ascribed to previously priceless claims, like citizenship or child custody, their inherent worth is distorted.282 This reflects Marx’s theory of alienation, where a part of oneself, in this case a legal claim, is exchanged for an abstracted value of potential profit.283 Initially, the claim is traded for white-centric legal standards. When third-party funded, the claim is further alienated when exchanged for a potential return on investment. Legal claims are thus reduced to an abstract dollar amount with no value other than being exchanged for similarly valued commodities – like whiteness.284
The result of these processes is that third-party financiers primarily invest in high-worth commercial claims.285 This is evident as the minimum threshold for receiving litigation funding in New Zealand is (at the very least) $200,000 NZD.286 In the United States, this minimum
279 Law Commission, above n 176, at 249.
280 At 249.
281 Maurice Blackburn Lawyers “In review: third party litigation funding in New Zealand” (8 December 2022) Lexology <https://www.lexology.com/library/detail.aspx?g=24bc9642-572d-4950-b2c0-0df19367503d>
282 Michael J. Sandel What Money Can’t Buy: the Moral Limits of Markets (Farrar, Straus & Giroux, New York,
2013) at 9.
283 Hunt, above 126, at 301.
284 Steinitzt, above n 159, at 1321.
285 Hodges, above n 158, at 71.
286 Law Commission, above n 176, at 257.
value can be $750,000 USD.287 These types of commercial claims, often class actions, insolvency, or insurance proceedings are therefore seen more valuable due to their ability to be exchanged for money and whiteness, the synonymous abstracted value of justice.288 The cases which disproportionately affect non-white minorities, like housing and employment, are side- lined as they do not align with TPLF’s profit-driven criteria.289 Through alienation and abstraction, TPLF entrenches whiteness and profit as the benchmark of justice. This suggests that whiteness is a distinct property interest in litigation.
III The Colourblind, Merit-based Investment
The second step of the framework necessitates examining how TPLF utilises colour-blind merit-based practices to reproduce white privilege. TPLF appears neutral and even beneficial by projecting itself as universally accessible to anyone who fulfils the legal commonality requirements for class actions, and more generally the financier’s merit-based criteria for funding. Moreover, its predominate use in corporate and commercial claims seemingly distances TPLF from racial contexts. However, a legal whiteness critique highlights that colour-blind, merit-based investment is the product of, and perpetuates, abstraction processes that inadvertently protect white supremacy.
The merit-based approach to litigation funding reproduces whiteness. Investment firms select cases based on perceived merits, primarily weighing the potential success and return on investment against associated risks.290 The use of meritocracy apparently ensures the ‘best case’ receives funding in a seemingly colour-blind manner. However, instead of being objective, the concept of merit is often defined by the white majority, setting criteria that echo white values and preserve their privileged position. Cases viewed as likely to succeed typically align with a whiteness-based, profit-driven benchmark for success.291 This means TPLF’s merit approach is skewed in favour of benefitting a white majority.
287 Abrams and Chen, above n 159, at 1088.
288 Law Commission, above n 176, at 252-255.
289 For statistics on housing and employment discrimination, see: Devah Pager and Hana Shepherd “The Sociology of Discrimination: Racial Discrimination in Employment, Housing, Credit, and Consumer Markets” (2007) 34 ARS 181. 290 Law Commission, above n 176, at 244.
291 Shepherd, above n 259, at 600; Avraham and Wickelgren, above n 254, at 239.
Yet, New Zealand’s biggest litigation funder LPF Group claim they have “levelled the playing field” in relation to accessing justice.292 But they have not. The racial issues prevalent in access to justice remain unaddressed as TPLF side-lines non-white groups with issues that do not align with white-centric "merits." While TPLF purports to provide equitable opportunities through its merit-based model, it covertly reinforces racial inequities by privileging whiteness that is already advantaged within a biased system. Analysing what constitutes merit in the realm of litigation funding reveals this dynamic.
A crucial marker of merit for litigation financiers is the potential high value pay-out of a claim, ensuring a lucrative return on their investment.293 Funders therefore focus almost exclusively on high-value commercial claims, rather than areas of civil justice most in need of financial support. The Legal Need Survey conducted by the Organisation for Economic Co-operation and Development (OECD) spanning 25 years highlights that civil legal issues pertaining to housing and employment are most globally prevalent, yet these sectors remain underfunded.294 Alarmingly, these areas are also rife with discrimination against non-white groups.295 Sara Sternberg Greene's 2015 study in the United States emphasises the consequence of this disparity, as Black individuals are less likely than white individuals to seek legal help for civil issues due to systemic constraints.296 In New Zealand, the Law Commission has also highlighted that claimants identifying as Māori or Asian are less likely to be aware they even have a possible claim.297
The required criteria of having a profitable claim in order to receive third-party funding undermines its pretence of increasing access to justice and instead continues to entrench racial disparity. Of course, third-party financiers are unlikely to be interested in funding the types of litigation most in need, like housing or employment. This is because there would be a significantly lesser return on investment in cases involving the already marginalised, excluded, or dispossessed. To illustrate, the average pay-out for a personal grievance claim made by an employee for unjust dismissal in New Zealand in 2020 ranged between $10,000 - $20,000
292 Phil Newland “About LPF Group” LPF Group <https://www.lpfgroup.co.nz/about-us>
293 Hodges, above n 158, at 2.
294 OECD and Open Society Foundations Access to Justice Legal Needs Surveys (OECD, 2019) at [1.6.1].
295 Pager and Shepherd, above n 289.
296 Sara Sternberg Greene “Race, class, and access to civil justice" (2015) 101 ILR 1263 at 1270.
NZD.298 This is a mere tenth of the minimum claim value threshold set by LPF, New Zealand’s largest funding group.299 Similarly, the Tenancy Tribunal’s maximum compensation for tenancy disputes stands at $100,000 NZD, only half the minimum threshold set by the same group.300 TPLF is fundamentally an investment in abstracted legality with a focus on profit. This not only maintains the existing racial hierarchy but also further alienates non-white minorities from a legal system that becomes further out of reach.
In their study based in the US, Abrams and Chen found that litigation funding firms discern merit for commercial claims as being those with sufficient primary evidence that is documentary.301 Financiers thus avoid claims that rely heavily on oral testimony and witness credibility because they are seen as presenting greater risks.302 Aileen Morton-Robinson highlighted that in the context of Australian native title claims, a disregard for oral testimony significantly harms Indigenous groups, as much of their evidence is sourced from oral history.303 Therefore, it is not surprising that the rates of access to justice for Māori-specific legal issues are poor, given tikanga Māori is rooted in oral tradition.304 These are not the types of cases which receive funding. Financiers are interested in cases with (what they view as) a "strong legal foundation" because this is the most likely to yield profit.305 What constitutes a strong legal foundation however is based on abstracted, white-centric legal norms. This means non-white views of justice, evidence, and law do not align with the “strong legal foundation” envisioned by litigation financiers. TPLF therefore reproduces whiteness by employing colour- blind criteria of merit defined by those in power who are concerned purely with profit.
TPLF is a product of the legal system that enables a colourblind re-investment and extraction from this system that has yet to rectify its foundational racial biases. This means its merit-based
298 Employment New Zealand “Compensation for personal grievance claims: Jul – Dec 2020” (13 January 2021) New Zealand Government <https://www.employment.govt.nz/about/employment-law/compensation-and-cost-award- tables/compensation-for-personal-grievance-claims-jul-dec-2020/>
299 Law Commission, above n 176, at 257.
300 Tenancy Services “Types of Tenancy Tribunal Orders” (2023) New Zealand Government
<https://www.tenancy.govt.nz/disputes/tribunal/decisions-the-tribunal-can-make/types-of-tenancy-tribunal- orders/#:~:text=The%20Tribunal%20can%20award%20compensation,filed%20through%20the%20District%20Court
>; Law Commission, above n 176, at 257.
301 Abrams and Chen, above n 159, at 1088.
302 At 1088.
303 Rewa Kendall “How Might Tikanga Concepts Inform the Use of Māori Knowledge as Expert Evidence?” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 166 at 177.
304 Colmar Brunton Access to Justice Research 2021 (New Zealand Law Society, October 2021) at 16.
305 Newland, above n 292.
approach makes TPLF exclusive to those who benefit from abstraction and alienation, which primarily includes white individuals.
IV A Tangible Investment in Whiteness
The concluding step of this framework underscores TPLF as a tangible investment in abstraction, alienation, colour-blindness, and therefore whiteness. While TPLF appears to be a neutral legal arrangement, it is built upon and entangled with racial foundations. As this section will explain, promoting TPLF as universally and equally advantageous masks the reality that it side-lines racialised minorities. Such analysis reveals the reality that whiteness remains exclusive and coveted property. White individuals are deeply invested in preserving this privileged status and as such, TPLF serves as a literal manifestation of this commitment.
TPLF represents an investment in whiteness behind a façade of seemingly inclusionary access to civil justice. Third-party financiers often cite themselves as taking responsibility for increasing access to justice.306 However, historically, the Western legal system has operated to exclude non-Western forms of justice to instead favour their own. Access to justice has been predominantly framed through the lens of Western legal ideologies such as the rule of law and separation of powers which presents its own courts as the primary avenue for legal redress.307 Despite TPLF’s façade of benevolence, it mirrors Moreton-Robinson's analysis of the possessive investment in whiteness existing through apparently beneficial laws. By remaining passive in the face of racial inequity and lauding as a saviour of the underprivileged without effecting any real redress, TPLF actually perpetuates white privilege.
A more concrete example of TPLF’s investment in whiteness is evident when critiquing class actions which have become increasingly prevalent following the re-emergence of TPLF.308 Class actions epitomise the exclusivity of abstraction and how this reproduces whiteness. They inherently involve a process of aggregation because they set exclusive criteria for class membership which narrows what types of legal harm are viewed as compensable. Whether opt-
306 Newland, above n 292.
307 Diana Zacca Thomaz and Heaven Crawley “What do we mean by Access to Justice (A2J)?” (concept note presented for MIDEQ Work Package 8, 26 March 2021) at 2.
308 Law Commission, above n 176, at 245.
in, or opt-out,309 class actions rely on a “commonality” requirement which necessitates a shared question of fact or law among all class members and discerns who is and is not included.310 Although class actions appear inclusive because they support large groups in seeking legal recourse, they are only inclusive to the degree that the “common” legal harm fits within a narrow understanding of what type of harm is compensable. The effect is that commonality abstracts the genuine nature of harms, alienating lived experiences and packaging them into a universalised class. This means class actions actively facilitate the abstraction of claims, feeding into the reification of whiteness as the status quo. Third-party financiers can play an active role in this, as they assist in identifying, contacting and organising class members.311 TPLF invests in, and therefore facilitates, class actions which benefit those most able to take advantage of alienation and abstraction: white people.
Even the contemplation of race in how class actions are discerned does little to obscure the fact it is a legal arrangement premised on abstraction and exclusion. The New Zealand Law Commission has contemplated the role of tikanga Māori in class action representative proceedings (but were silent on the matter in relation to TPLF).312 They note it is commensurate with tikanga for Māori rangatira to pursue claims on behalf of their collectives, and cite the Waitangi Tribunal claims process, the Māori Land Court, and the Marine and Coastal Area (Takutai Moana) Act 2011 as avenues for such process.313 However, as there are limitations in law concerning the recognition of Māori collective litigation,314 the Law Commission noted class actions may be an alternative route.315 As such, they recommended tikanga be contemplated in discerning classes and representative plaintiffs for Māori collective claims in any new class action legislation.316
The inclusion of tikanga in deriving classes and representative plaintiffs for Māori collective claims appears inclusive. However, not only is this not yet a reality, it does not challenge the
309 Class actions can be opt-in by class members who must choose to part of the proceedings, or opt-out where class members are automatically part of the proceedings unless they opt-out by a certain date. For more, see: Law Commission, above n 176, at 16.
310 At 245.
311 At 182.
312 At 11.
313 At 77.
314 Law Commission, above n 176, at 209. See specifically the reference to Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 at [796]–[802] and [810] where the Court rejected the standing of Wakatū and the trustees of Te Kahui Ngahuru Trust to represent descendants of customary owners of certain land.
315 Law Commission, above n 176, at 209.
316 At 210.
notion that class actions are a colour-blind legal process that alienate and abstract in ways that preserve whiteness as a norm. Integrating tikanga does not challenge this dynamic. If anything, it cements it. This is because Māori claims are still assimilated into class actions, a legal arrangement that reproduces whiteness. As Moreton-Robinson made clear, recognition within the system is still subordinate to the system.317 It is a profound paradox: seeking legal redress necessitates submitting to a system that reproduces whiteness, and such submission only re- entrenches the power of whiteness as the legal standard of justice.
TPLF, by facilitating class actions, claims to enhance access to justice. Yet this is misleading where TPLF invests in a system embedded in unredressed racial inequity and itself utilises colour-blind practices which do not redress this. If racialised minorities must aggregate and decontextualises their claims to be recognised in a legal system that continually reproduces whiteness, then as Bell emphasised, this overlooks systemic racial inequity which produces different outcomes for different groups.318 TPLF, therefore, represents exactly was Moreton- Robinson demonstrated as an investment in whiteness under the guise of benevolence.319
While the re-embrace of TPLF has sought to level the litigation playing field by funding those who could not otherwise afford litigation, it has inadvertently created a new type of vested interest in the form of preserving whiteness. Regardless of whether investors may be unaware of these consequences, the outcome is the same. Chief Justice Winkelmann's assertion that without access to justice the rule of law morphs into arbitrary decisions made by a select few is particularly apt here.320 TPLF, in fostering a misleading image of increasing access to justice, reduces the law to decisions made by a select few who have the power to define what cases are worthy of justice. Really, TPLF increases a restrictive interpretation of justice that translates to a tangible investment in whiteness.
317 Moreton Robinson, above n 22, at 68.
318 Bell, above n 14, at 901.
319 Moreton Robinson, above n 22, at 67 – 68.
320 Chief Justice Helen Winkelmann "Access to Justice - Who needs lawyers?" [2014] OtaLawRw 2; (2014) 13 Otago LR 229.
Conclusion
...That which is not seen cannot be discussed or changed..321
This dissertation asked whether TPLF reproduces and reconstructs whiteness. It began by establishing the unredressed racialised foundation of legal systems built and dependent upon white privilege. It unveiled that beneath ostensibly neutral and colour-blind laws lies a process of abstraction and alienation. This process systematically erases individual context, setting a generalised standard of whiteness as the benchmark against which all else is measured. Through its invisible nature, this whiteness remains pervasive in laws which purport to be racially neutral and fair. Culminating this analysis, I presented a three step legal whiteness critique to uncover how whiteness, a powerful social construct, is legally reproduced in ways that most are inattentive to.
The focus of this dissertation was a critical examination of third-party litigation funding (TPLF), which appeared to be a legal arrangement completely divorced from race. TPLF re- emerged after being prohibited by the doctrines of maintenance and champerty as it was thought the legal system was safe from “unscrupulous men of power.”322 Yet through the application of a legal whiteness critique it becomes apparent that the legal system does not yet have the power to protect the vulnerable or resist the pervasive force of whiteness.
TPLF as an apparently race-neutral legal arrangement represents a tangible investment in whiteness. It has evolved from its origins as a tool utilised by powerful interests to acquire the property of land, into an arrangement utilised by vested interests to reinvest in the property of whiteness. In critiquing TPLF, I have illuminated that the subtle yet formidable force of white privilege continues to shape justice systems. If TPLF, a seemingly neutral legal arrangement, is biased in this way, it questions the legitimacy of any law or legal arrangement which purports to be racially neutral and unbiased.
321 Stephanie Wildman and Adrienne David “Language and Silence: Making Systems of Privilege Visible” (1995) 35 SCLR 881 at 896.
322 Giles, above n 165, at 1.
If New Zealand, or other settler states, seek to reap the potential benefits of TPLF in terms of promoting access to civil justice,323 this must be realised in a way that manages potential racial implications that could arise. Democratic society is defined not only by the existence and stability of its legal institutions but by their accessibility to all citizens.324 Of course addressing procedural and financial barriers to justice is a pressing contemporary challenge.325 However, it is also important to acknowledge the persistent role whiteness plays in producing inequitable outcomes. There is thus more work to be done, because in a system with unredressed racial foundations, the law is always ripe for a racial critique.
323 Law Commission, above n 176, at ii.
324 At ii.
325 At ii.
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Statistics New Zealand “Te Pā Harakeke: Māori housing and wellbeing 2021” (26 August 2021) <https://www.stats.govt.nz/reports/te-pa-harakeke-maori-housing-and-wellbeing- 2021#overview>
Taahira Thompson “NYPD’s Infamous Stop-and-Frisk Policy Found Unconstitutional” (21 August 2013) The Leadership Conference Education Fund
<https://civilrights.org/edfund/resource/nypds-infamous-stop-and-frisk-policy-found- unconstitutional/>
Tenancy Services “Types of Tenancy Tribunal Orders” (2023) New Zealand Government
<https://www.tenancy.govt.nz/disputes/tribunal/decisions-the-tribunal-can-make/types-of- tenancy-tribunal- orders/#:~:text=The%20Tribunal%20can%20award%20compensation,filed%20through%20t he%20District%20Court>
Wayne Attrill “Australia: Litigation Funding Comparative Guide” (23 March 2023) Pencarrow Associates Pty Limited <https://www.mondaq.com/australia/finance-and- banking/1285402/litigation-funding-comparative-guide>
WilsonHarle “Litigation Funding in New Zealand” (2023) Wilson Harle Barristers & Solicitors <https://wilsonharle.com/legal-information/nz-legal-guides/litigation-funding-in- new-zealand>
H OTHER RESOURCES
Chief Justice Helen Winkelmann "Access to Justice - Who needs lawyers?" [2014] OtaLawRw 2; (2014) 13 Otago LR 229.
Diana Zacca Thomaz and Heaven Crawley “What do we mean by Access to Justice (A2J)?” (concept note presented for MIDEQ Work Package 8, 26 March 2021).
Interview with Robin DiAngelo, Academic (Nosheen Iqbal, The Guardian, 16 February 2019), transcript provided by The Guardian.
Justice Sarah Derrington “Litigation Funding: Access and Ethics” (Australian Academy of Law Lecture, Brisbane, 4 Ocotber 2018).
Lord Neuberger “From Barretry, Maintenance And Champerty To Litigation Funding” (Harbour Litigation Funding First Annual Lecture, Gray’s Inn, 8 May 2013).
Lyndon Johnson (Howard University Commencement Address 1965, Howard University, Washington D.C., 4 June 1965).
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