The Political Economy of Criminal Procedure Litigation

58 Pages Posted: 24 Mar 2010 Last revised: 25 Apr 2011

Date Written: April 23, 2010


Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number of indigent defense or-ganizations has expanded the Supreme Court’s freedom to select cases that frame constitutional issues in ways that conform to the ideological preferences of the Court’s Justices.

This framework exposes a potential, but heretofore unidentified, link between the Warren Court’s decision in Gideon v. Wainwright and the relative conservatism of contemporary criminal procedure doctrine. Specifically, by mandating the creation of a vast number of state-subsidized organizations representing poor defendants, the Court’s deci-sion in Gideon weakened the power that such organizations once had to constrain the Supreme Court’s criminal procedure agenda. This Article thus complicates the traditional narrative of constitutional criminal pro-cedure’s doctrinal shifts, in which the liberal innovations of the Warren Court were simply eclipsed by the decisions of later and more conserva-tive Courts, by attending to the economic and institutional conditions that underpin those shifts.

Keywords: Criminal Procedure, Constitutional Law, Constitutional Litigation, Political Economy, NAACP, Scottsboro, Litigation, Legal Theory

Suggested Citation

O'Rourke, Anthony, The Political Economy of Criminal Procedure Litigation (April 23, 2010). Georgia Law Review, Vol. 45, p. 721, 2011; Columbia Public Law Research Paper No. 10-239. Available at SSRN:

Anthony O'Rourke (Contact Author)

University at Buffalo Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States

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