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Vol. 167, Issue 5


Featured Article

The Sixth Amendment Facade: The Racial Evolution of the Right To Counsel

Shaun Ossei-Owusu
167 U. Pa. L. Rev. 1161 (2019)

One of the most perilous pitfalls of constitutional criminal procedure scholarship is the inexact treatment of race vis‐a‐vis the Sixth Amendment right to counsel. This imprecision exists because of historical and theoretical blind spots. In right to counsel literature, race is either neglected, subsumed under poverty, or understood in the simple terms of disproportionality (e.g., how indigent defense’s failures acutely impact racial minorities). A historical examination of early legal aid institutions and jurisprudence reveals the centrality of race in modern indigent defense schemes. Throughout the twentieth century, the politics of race informed right to counsel decisions and policies in ways that shape the current landscape but have been unrealized by scholars. Inattention to the role of race ultimately limits intellectual discussions on the right to counsel as well as indigent defense reform efforts.

This Article supplies a distinct way of thinking about the right to counsel and, in doing so, extends a different set of analytical possibilities. It argues that race has shaped the scope and trajectory of indigent defense. The Article uses a diverse array of untapped historical sources to radically reinterpret the legal landscape before Gideon v. Wainwright—a period that is often insufficiently attended to—and shows how race operated in the background of constitutional interpretations of the right to counsel and governmental commitment to this provision. The Article then revisits the post‐Gideon world. It demonstrates how unacknowledged anxieties about race, along with recoded ideas about indigent defense as a social welfare policy, influenced the Court’s clarification of Gideon. The Article concludes with a discussion on how this history can inform contemporary criminal justice reform.

Featured Comment

Injustice At The Border: Application Of The Constitution Abroad Through The Conflict Of Laws

Margaret Kopel
167 U. Pa. L. Rev. 1241 (2019)

Deciding whether the U.S. Constitution applies abroad is a complicated question and one that is not easily answered by looking at Supreme Court precedent. The problems of the current approach have been highlighted in recent years by the cases of Hernandez v. Mesa and Rodriguez v. Swartz, two cross‐border shooting cases where courts were unsure as to how or why different Amendments could protect noncitizen children killed in Mexico by U.S. government agents shooting from within the United States. This Comment surveys the precedents as well as the leading theories in extraterritorial application of the Constitution and shows why the landscape as we face it is unsatisfactory for dealing with cases like Hernandez and Rodriguez. Interest analysis, within the conflict of laws, asks courts to look at the purpose of a law domestically and to extend that law abroad if its domestic purpose would be served by doing so. I argue that under this approach, the Due Process Clause of the Fifth Amendment should be extended abroad because its domestic purpose in restraining arbitrary executive action is served by restraining that Executive no matter where it acts.

Online Exclusives
 Last updated: June 23, 2019


Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower

Stephen B. Burbank
168 U. Pa. L. Rev. Online 18 (2019)

The University of Pennsylvania Law Review Online presents the first installment of “Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar,” a series of articles, essays, and commentaries addressing the current state and direction of the judiciary. Contributors include scholars, judges, and practitioners whose extensive experience and diverse perspectives illuminate the relationship between judicial independence and accountability, as well as the forces which shape that relationship. Contributions to the series will be published throughout the summer and fall. The series begins with Professor Stephen B. Burbank's “Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower.” From his experiences as a Supreme Court clerk during Watergate, as a reporter on the judicial committee implementing the Judicial Conduct and Disability Act, and finally as a law professor deeply engaged in the study of judicial power, Professor Burbank suggests several lessons on how judicial accountability is essential to maintaining an independent judiciary.

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this Essay, I aim to provide practical context for some of the important lessons to be learned from the periods of stress for the federal judiciary that I have observed as a lawyer and concerned citizen and to provide theoretical context for lessons I have deemed significant as a scholar.


The Creditors' Bargain Reconstituted: Comments on Barry Adler's The Creditors' Bargain Revisited

Edward J. Janger
167 U. Pa. L. Rev. Online 47 (2019)
Responding to Barry E. Adler, The Creditors' Bargain Revisited

In his book, The Logic and Limits of Bankruptcy Law, Thomas Jackson asserts that bankruptcy law should approximate the bargain creditors would strike at the initiation of the firm (T1) regarding the possibility that the firm might later fail and default on its debts (T2). Jackson reasons that the firm’s creditors would choose a collective remedy that limits the power of individual creditors to force an inefficient liquidation. They would agree to stop the race of diligence.

In his thoughtful and provocative contribution to this symposium, The Creditors’ Bargain Revisited, Barry Adler asks whether, in the current world of finance and bankruptcy, creditors would choose the same collective remedy? His answer is, “No.” As he sees it, creditors would prefer the unfettered right to exercise their negotiated remedies. Barry offers three pieces of evidence: (1) sophisticated creditors frequently say that they would prefer to opt out of collective bankruptcy in favor of individual collection; (2) creditors frequently seek to adopt bankruptcy remote structures such as securitization through special purpose vehicles to avoid the bankruptcy process; and (3) blanket (often second) lien financing is frequently used by undersecured creditors to control and implement an all asset sale. Instead, he posits his preferred, noncollective, approach to insolvency: an express bargain based in creditor autonomy, or as he puts it, “a contractual alternative to bankruptcy.”

My response proceeds in three steps. First, I channel Inigo Montoya from The Princess Bride to suggest that the “Creditors’ Bargain” does not mean what Barry thinks it means. Second, I situate Barry’s contractualism in relation to the alternate “collective” theories of bankruptcy value distribution: the relativism of Baird and Casey; and a more rigorous version of the creditors’ bargain articulated by me and Melissa Jacoby in previous work. Third, I argue for the normative superiority of the collective approach, both for its fidelity to the Creditors’ Bargain heuristic and because of its consistency with a broader set of corporate governance norms that seek to encourage adequate capitalization and risk internalization.