Participation, Equality and the Civil Right to Counsel: Lessons from Domestic and International Law
25 Pages Posted: 8 Mar 2013
Date Written: March 5, 2013
Dissenting in Goldberg v. Kelly, Justice Black warned that the majority’s interpretation of the 14th Amendment’s due process clause would inevitably lead to a civil right to counsel, particularly in cases involving dramatic need. This essay argues that Justice Black was essentially correct, but rather than arising from the plaintiff’s desperate circumstances, the seeds of a constitutional right to counsel in civil cases are to be found in Goldberg’s emphasis on the values of democratic citizenship and community participation and Gideon’s consideration of procedural equality. While these ideas are not themselves new, two principles drawn from international jurisprudence – the human right to “civic participation” and the concept of “equality at arms” – resonate with emerging U.S. jurisprudence in this area, and suggest new approaches to domestic advocacy on civil counsel. For example, adding considerations of equality to the constitutional due process calculus would position courts to examine the broader class-based impacts of the denial of civil counsel in cases such as mortgage foreclosures or insurance redlining. Rather than conduct a case-by-case review, which slows litigation, creates uncertainty, and deters litigants from coming forward, U.S. courts viewing the civil right to counsel through the lenses of civic participation and equality of arms could act to mitigate the class-based impacts of procedural inequality in addition to the case-specific impacts. This approach, grounded in democratic values rather than need, would begin to address the concerns of both the majority and the dissent in Goldberg.
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