Will Gideon's Trumpet Sound a New Melody? The Globalization of Constitutional Values and Its Implications for a Right to Equal Justice in Civil Cases (original) (raw)
Related papers
Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine
Northwestern University Law Review, 2003
NORTHWESTERN UNIVERSITY LAW REVIEW to the layperson's need for assistance of counsel in court proceedings.' Rather, during the mid to late 1700's, English law forbade the assistance of counsel in nearly all criminal cases.' The law required each defendant "to appear before the court in his own person and conduct his own cause in his own words." 6 Scholars and historians offer various explanations of this prohibition on counsel. 7 Some point out that criminal prosecutions were initiated by private parties, who represented themselves; accordingly, selfrepresentation by defendants was not thought to be unfair.' Others suggest that a 'level playing field' was enforced by a neutral judge who "viewed indictors, prosecutors, jury, and prisoner with impartial distrust." 9 Still others suggest that the English government banned counsel because the monarchy was too weak and too unstable to risk the possibility that defense counsel would achieve the acquittal of accused felons." In contrast, the colonists rejected the English "private party" prosecutions and adopted a strong public prosecutor system. In that system, a professional prosecutor confronted the private citizen. The colonial prosecutor knew the law, the jury system, and the judge more intimately than could any individual defendant. This gave the prosecutor an unfair advantage that colonial lawmakers could not justify." The American impulse to determine legal rights by reference to the "settled usages and modes of proceeding" of English law gave way to the realities of an American society that demanded different protections. 2 Although the early American counsel guarantee was 4 Powell v. Alabama, 287 U.S. 45, 60 (1932) (stating that "[i]f recognition of the right of a defendant.., to have the aid of counsel depended upon the existence of a similar right at common law as it existed in England when our Constitution was adopted," the right to counsel could not be justified as a necessary component of due process), 5 Faretta v. California, 422 U.S. 806, 823 (1974). 6 Id. (quoting 1 POLLACK & MAITLAND, THE HISTORY OF ENGLISH LAW 211 (2d ed. 1909)). The sole exceptions were at the outer edges of criminal procedure-counsel was permitted both in misdomeanor and treason cases. Scholars have posited that this distinction arose precisely because those accused of misdemeanors and treason were prosecuted by England's only public prosecutor-the Crown. This ban on counsel in felony cases persisted until 1836 when Parliament gave criminal defendants the right to appear through counsel.
Owen W. Gallogly - Equity's Constitutional Source - 132 Yale Law Journal 1213-1599 (March 2023)
Over the past three decades, the Supreme Court has led a historicist revolution in equity jurisprudence. In a series of decisions known as the "new equity" cases, the Court has sought to limit federal equitable remedies to the forms of relief typically issued by the English Court of Chancery at the Founding. It has read this stringent limitation into various federal statutes that refer to equity-from the Employment Retirement Income Security Act to the Judiciary Act. But these cases miss the mark on their own quasi-originalist terms. By focusing on statutes as the basis for the judiciary's power to grant equitable relief, the Court has overlooked the underlying source of that power: the provision of Article III that extends "[t]he judicial Power" to cases in "Equity." This Article uncovers federal equity's constitutional source. Applying the Supreme Court's historically inflected methodology, it argues that "[t]he judicial Power" in "Equity" is best understood as vesting the federal courts with inherent power to grant equitable relief. That power is coextensive with the remedial authority of the Founding-Era English Chancellor. Put simply, Article III empowers federal courts to apply the system of equitable remedies administered by the Court of Chancery in 1789 as the baseline of federal equity power. Thus, absent express congressional action (which is rare), it is Article III itself-not federal statutes-that defines the limits of federal equity. Returning equity to its constitutional source suggests that the judiciary has greater leeway to develop the federal system of equitable remedies than the Court's time-bound new equity cases seem to permit. To be sure, the remedial power incorporated by Article III was not illimitably flexible. Founding-Era Chancellors were bound by settled rules from which they did not depart absent legislative authorization. But nor was it fixed in time. Chancery could elaborate the system of equitable remedies in a gradual, accretive, precedent-based way. Article III vests an equivalent power in the federal courts. By ignoring this power and instead tying federal equity to particular statutes, the Court has, in the name of fidelity to history, adopted an ahistorical, cramped understanding of the federal equity power.
Columbia Law Review, 1981
See notes 13-14 and accompanying text infra. 2. See Haines v. United States, 453 F.2d 233 (3d Cir. 1971); Ehrlich v. Van Epps, 428 F.2d 363 (7th Cir. 1970); Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969). 3. See note 18 and accompanying text infra. 4. See note 21 and accompanying text infra. 5. See note 26 and accompanying text infra. 6. See notes 8-12 and accompanying text infra. 7. See notes 24-34 and accompanying text infra. 366 UNCOMPENSATED ASSISTANCE I. BACKGROUND Judicial appointment of attorneys to represent impecunious litigants without compensation is not a new development. Colonials and early American statutes 9 authorized courts to provide counsel at the request of indigents charged with capital crimes.' 0 By the late nineteenth century most state courts had ceased to depend on statutory authority, exercising the power to appoint counsel as part of their inherent or constitutional authority to regulate the practice of law within the state." Appointments during this period were still generally limited to criminal cases in which the defendant faced a serious penalty. 2 In recent years the need for legal representation for the poor has increased. Growing recognition of the importance of legal representation to obtaining a fair outcome in criminal cases, 3 culminating in the Supreme Court's announcement of a constitutional right to counsel in criminal prosecutions," has resulted in greater demands upon lawyers' time. An increasing rate of criminal activity '" and the requirement of representation at a greater number of stages of the criminal justice process ' 6 have also contributed to this burden. In civil cases as well
The Disenfranchised Right to Counsel
Abstract In this paper I will highlight academic research pertaining not only to the diminished state of the indigent defense system but also in regards to the legalized discrimination against Black-Americans. The topics explored in this research proposal will concentrate around the systematic mass incarceration of Black Americans and the right to counsel for indigent defendants. Thus in support of the literature review of the present research study seeks to explore what (if any) influence does defense counsel type has on incarceration racial disparities? Although, I hypothesize that, if African-American defendants rely on the public defender system, then they will be less likely to be acquitted and or receive longer sentences when compared to White defendants with or without a private attorney. My proposal positions to develop a quantitative research design to evaluate public defenders effectiveness. The research method is intended to be piloted in two groups—public defenders vs private attorneys; and within each group I will compare the sentencing outcomes between two subgroups—White and Black defendants. The sample population will be mined from a collection of defendants convicted of felony drug related charges from the state of Connecticut’s public judicial database records.
Due Process as Choice of Law: A Study in the History of a Judicial Doctrine
William and Mary Bill of Rights Journal, 2016
This Article argues that procedural due process can be understood as a choice-of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law - personal notice, oral hearing, neutral judge, and jury trial - and summary procedures employed in administrative agencies.This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It begins with a reading of due process cases in state courts before the Civil War, and argues that, in many of these cases, courts were asked to negotiate the institutional conflict between themselves and various summary bodies, including non-common-law courts, magistrates, commissioners, corporations, and even legislatures, which played a significant role in t...
1982
for research support during the author's tenure at that institution. 1. Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976) [hereinafter cited as Chayes]. 2. Fiss, The Supreme Court, 1978 Term/Forward: The Forms of Justice, 93 HARV. L. REV. 1 (1979) [hereinafter cited as Fiss]. 3. See id., for a description of the Burger Court's reaction to "structural" litigation. 4. 445 U.S. 326 (1980).