Gideon's Law Protective Function

22 Pages Posted: 3 Dec 2012 Last revised: 11 Jun 2013

Nancy Leong

University of Denver Sturm College of Law

Date Written: December 1, 2012

Abstract

Gideon v. Wainwright dramatically affects the rights of indigent defendants by entitling them to representation. But Gideon has another systemic consequence as well. In addition to protecting the rights of individual defendants in particular trials, Gideon also protects the integrity of the development of the law by ensuring that the legal principles courts articulate are the product of a legitimate adversarial process. While law protection was not a central rationale for the outcome in Gideon, the decision’s reasoning and the surrounding historical context resonate with the concern for the integrity of judicial lawmaking. And an examination of subsequent cases reveals the influence of appointed counsel on the shape of the law. The guarantee of counsel, then, has significant benefits for courts’ lawmaking endeavor, and, indeed, serves as an independently sufficient rationale for the provision of counsel to indigent defendants. This alternative rationale for Gideon offers a justification for extending the entitlement to counsel to certain civil contexts that raise concerns similar to those present in the criminal context.

Keywords: Gideon, right of counsel, civil Gideon, rights, lawmaking, excessive force

Suggested Citation

Leong, Nancy, Gideon's Law Protective Function (December 1, 2012). Yale Law Journal, Vol. 122, 2013; U Denver Legal Studies Research Paper No. 13-01. Available at SSRN: https://ssrn.com/abstract=2183729

Nancy Leong (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans. Ave.
# 465A
Denver, CO 80208-0600
United States

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