Gideon in White/Gideon in Black: Race and Identity in Lawyering

Abstract:     
This essay endeavors to show that the politics of community-based legal action is a remedy too often out of the reach of liberal lawyers, even when their springboard is the work of John Hart Ely in Gideon v. Wainwright. Part I describes the history of Gideon v. Wainwright, documenting Gideon's personal background and the procedural contours of the litigation. It chronicles Ely's participation in the litigation and its continuing hold on his legal imagination. Part II uncovers the jurisprudential roots of Ely's vision of lawyering in a legal process conception of political access rights and minority equality rights developed through his writings on civil rights, constitutional law, and criminal procedure. It explores how Ely's process vision was enlarged by the civil rights movement and at the same time tempered by separation of powers considerations of role competence, institutional function, and political legitimacy. Part III exposes the legal process underpinnings of client-centered lawyering models erected in defense of the unrepresented. It demonstrates that these liberal-lawyering models of representation in the fields of poverty law and criminal justice focus on adversarial rights and material outcomes at the expense of democratic empowerment and minority collaboration. Part IV examines Ely's work for lessons of clinical legal education, criminal defense practice, and poverty law advocacy in impoverished communities of color. It seeks to discern in Ely's work a core set of democratic norms and narratives of political access and minority equality generalizable to multicultural clients and communities. Further, it sketches community-centered guidelines for lawyers laboring to advance the legal, political, and economic interests of unrepresented individuals and groups.

Accepted Paper Series