Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law
122 Yale L.J. 2260 (2013).
Domestic efforts to establish a right to civil counsel by drawing narrow analogies to Gideon v. Wainwright have met with limited success. In contrast, two principles drawn from international jurisprudence—the human right to “civic participation” and the concept of “equality of arms”—resonate with emerging U.S. jurisprudence in both state and federal courts and suggest new directions for domestic advocacy on the civil right to counsel. First, the human right to civic participation, incorporating access to justice, underscores the democratic values at stake when individuals are not able to fully participate in civil judicial processes because of lack of counsel. Second, the concept of equality of arms hones in on the source of that democratic distortion—inequality—and sets a baseline for ensuring acceptable procedural protections. Strengthening considerations of participation and equality within 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 more broadly to mitigate the classbased impacts of procedural inequality in addition to the case-specific impacts. This approach, grounded in democratic values rather than need, does not ignore the lessons of Gideon, but draws on its more subtle themes—themes that have sometimes been eclipsed by a focus on liberty interests.