It’s Not Triage if the Patient Bleeds Out

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In their article, Triaging Appointed‐Counsel Funding and Pro Se Access to Justice, Professors Benjamin Barton and Stephanos Bibas argue not only that the issues at stake in criminal litigation are “more important” than those at stake in civil proceedings, but also, that pursuit of a civil right to counsel will deepen the scarcity of legal resources available to indigent criminal defendants while replicating “Gideon's shortcomings in the criminal context.” They believe Turner dealt a “death blow” to a constitutional right to civil counsel, and that such a result should be “cheer[ed].” We first examine whether the case‐by‐case approach would work any better in civil cases than it did in pre‐Gideon criminal cases. We then examine Barton and Bibas' belief that providing fewer procedural protections in civil cases is justified by the “lesser” interests involved. Finally, we articulate the actual scope of the civil right to counsel advanced by advocates (which is considerably narrower than what Barton and Bibas claim), and we set forth reasons why neither the current economic crisis nor the problems with indigent criminal defense justify inadequate protection of fundamental legal rights in civil cases.

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