Lassiter v. Department of Social Services: Why is it Such a Lousy Case?

Abstract:     
Every year in my 1L Civil Procedure course, I introduce the subject with a collection of due process cases. The cases force students to confront the tension between procedural efficiency and fairness right out of the gate. It sets a fantastic tone for a course that is essentially all about managing that tension. One particular case, Lassiter v. Department of Social Services, really gets students’ attention. The debate about that case is inevitably a lively one. And, for that, I am so very grateful. However, every year when I teach it, I find myself rejecting the case and its approach even more. In short, the case is about the termination of parental rights and whether, during the hearing to adjudicate one’s parental rights, an indigent parent should have a state-appointed attorney. Why do I dislike this case so much? Well, that is a thorny question. There are a number of reasons to despise this case. It is written without any acknowledgment of race or institutionalized racism, nor does it confront the failings of our criminal justice system. The Court also turns a blind eye to the realities of poverty. Thus, there are many angles from which one could attack this decision, as it is a case that finds itself at the intersection of so many “isms.” Yet, for me, the case is most offensive because it is so sexist. The characterization of motherhood and its value to our society is not just off-putting, it is plain irksome.

Number of Pages in PDF File: 9

Keywords: due process, access to justice, right to counsel, civil procedure

Accepted Paper Series