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May 2, 2013

"Gideon's Shadow"

The title of this post is the title of this notable new piece by Justin Marceau, which is available via SSRN. Here is the abstract:

The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elaborating on this paradoxical aspect of the Gideon right -- that the very prominence of the right tends to dilute other rights, or at least justify limitations on non-Gideon rights -- this essay analyzes the judicial and scholarly practice of employing the counsel right as a cudgel to curb other rights.

This piece now joins my list of must-read pieces providing a provocative perspective during a period that has included lots of Gideon celebrations now that the decision is 50 years old. Here are links to posts noting other articles and commentary in this milieu:

May 2, 2013 at 04:14 PM | Permalink


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I started it and it's a very interesting concept. I'll have to come back to it after work.

Posted by: Juan | May 3, 2013 2:15:32 PM

Gideon needs to be revised. All citizens deserve: The Right To Competent Counsel. Having been a lawyer for forty years and having observed what goes on, competency needs to be put front and center in law schools, law associations, bar associations and in court.

Posted by: liberty1st | May 5, 2013 12:06:44 AM

This decisions is the greatest in the history of lawyer rent seeking. In rent seeking, the taxpayer is made to pay at the point of a gun, and gets nothing in return. So the cost of a government road or police protection is profit, not rent. The rent paid for an apartment is profit, not rent.

A study has shown that criminal defendants trying their own cases, get the same trial outcomes as public defenders. The PD's add no value. They just take $billions in fees, at the point of a gun, enforcing a Supreme Court decision.

Posted by: Supremacy Claus | May 5, 2013 6:27:48 AM

Many times I have seen the judge using appointed counsel as a fig leaf, covering the nakedness of the court.

Posted by: KRG | May 6, 2013 12:50:48 PM

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