Hopeless cases: race, racism and the “vexatious litigant”

Herman, Didi (2012) Hopeless cases: race, racism and the “vexatious litigant”. International Journal of Law in Context, 8 (1). pp. 27-46. ISSN 1744-5523. (Full text available)

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http://dx.doi.org/10.1017/S1744552311000371

Abstract

In this article, I explore how courts respond to vexatious litigants. These are individuals who have been made the subject of a s.42 order under the Supreme Court Act 1981. Their names are added to an existing list of ‘vexatious litigants’, published by the Court Service and the Law Gazette. Vexatious litigants are prevented from launching any further legal actions without the express permission of a judge. I first set out a brief history of the concept of vexatious litigation in England, and then explain the governing legal framework. The second section considers the literature in the area, a short third section discusses some case histories, and the fourth and main part of the article explores some questions raised by observing judicial narratives of ‘vexatiousness’ in decisions involving not-white and/or immigrant litigants. I argue that we can understand vexatious litigation as being about a passionate search for justice, as opposed to or at least as well as an ‘obsession’. That, rather than suffering from ‘delusions’, many vexatious litigants may, instead, be very well aware of ‘reality’ but simply not prepared to accept or succumb to it. I argue that while vexatious litigants appear to be unable to ‘get over’ their old injuries, we can reconceptualise these dynamics in a way that acknowledges how such melancholic attachments can underpin human agency and social change. I also suggest that it is worth reversing the gaze to consider the emotional worlds of the judges involved in these cases, and the psychic investments of the legal system itself.

Item Type: Article
Subjects: K Law
Divisions: Faculties > Social Sciences > Kent Law School
Depositing User: Jenny Harmer
Date Deposited: 08 Aug 2012 14:02
Last Modified: 02 Jul 2013 23:06
Resource URI: http://kar.kent.ac.uk/id/eprint/30070 (The current URI for this page, for reference purposes)
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