Conceptualizing Constitutional Litigation as Anti-Government Expression: a Speech-Centered Theory of Court Access

Abstract:     
This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for prisoners may recover - violates the right of access to the courts.

Number of Pages in PDF File: 70

Keywords: court access, first amendment, constitutional litigation, public law, constitutional law, due process, litigation, civil rights, prisoner's right, prison litigation, attorney fees, right to petition, redress

JEL Classification: K10, K19, K40, K41, K49

Accepted Paper Series