Keeping Families Together, Saving Money, and Other Motivations Behind New Civil Right to Counsel Laws

31 Pages Posted: 12 Nov 2009 Last revised: 17 Mar 2010

Laura Abel

Yeshiva University - Benjamin N. Cardozo School of Law, National Center for Access to Justice

Date Written: December 2009

Abstract

Several states have a statutory civil right to counsel in certain types of cases, but the legislative intent that led to the passage of these statutes has received little attention until now. Although many of these statutes concern child welfare — for example, keeping children out of foster care when possible — there is no reason to believe that a legislature’s willingness to expand or improve the right to counsel is necessarily limited to the child welfare arena. In passing these statutes, legislators were motivated by expectations of financial savings, a desire to fix failing state child welfare bureaucracies, and notions of fundamental fairness. These statutes bundled the civil right to counsel with larger pieces of societal reform legislation as a means to an end rather than an end in itself. Legislatures often provide funding for specific types of civil legal aid that have been shown to save government money or to have other beneficial effects. There are statutes providing for a right to counsel in cases concerning civil commitment, mandatory medical treatment, paternity, and other types of legal disputes. Civil right to counsel legislation may be more likely to succeed if it is part of broader legislation aimed at solving a social problem than if it is proposed as a stand-alone bill that lacks the same level of support. An examination of the civil right to counsel legislation as it pertains to child welfare reveals that there is no single path to success because varying political climates mean that a statute or political strategy that succeeds in one place may not succeed in another. Understanding the legislative motivations that led to the enactment of these statutes can prove useful to advocates who seek the expansion of the civil right to counsel.

Keywords: Civil Gideon, right to counsel, legislative history, American Bar Association

JEL Classification: I3, K1, K4, I18, 13, J18

Suggested Citation

Abel, Laura, Keeping Families Together, Saving Money, and Other Motivations Behind New Civil Right to Counsel Laws (December 2009). Loyola of Los Angeles Law Review, Vol. 42, p. 1087, 2009; NYU School of Law, Public Law Research Paper No. 09-67. Available at SSRN: https://ssrn.com/abstract=1503007

Laura Abel (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law, National Center for Access to Justice ( email )

55 Fifth Ave.
New York, NY 10003
United States

HOME PAGE: http://www.ncforaj.org

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