Volume 160, Issue 4 
April 2012

Triaging Appointed-Counsel Funding and Pro Se Access to Justice

Benjamin H. Barton & Stephanos Bibas

If appointing some lawyers is good, then appointing more lawyers must be better. At least that seems to be the logic of the civil Gideon movement, which favors appointing counsel in civil cases just as Gideon v. Wainwright required appointing counsel in criminal cases. The impulse is understandable: both indigent and pro se litigants face many hurdles in civil courts, and the stakes can be quite high. But even though criminal defendants do enjoy the Gideon right to counsel, the quality and availability of indigent criminal defense remain hobbled by inadequate funding. Gideon’s shortcomings in the criminal context should caution us against assuming that a new judicially created right will alleviate chronic shortages.

Over the last century, Powell v. Alabama, Gideon, and related cases have steadily expanded the Sixth Amendment right to counsel in criminal prosecutions, from a right to retain one’s own counsel to a right to appointed counsel in any case resulting in actual imprisonment. Counsel must also meet minimum standards of effectiveness. The services that must be provided have also grown to include expert assistance such as psychiatric examinations in criminal cases raising mental health issues. Civil litigants have had much less success, as the Supreme Court has repeatedly rejected a constitutional right to counsel in a variety of civil proceedings. Rather than giving up hope, however, scholars and activists have continued to advocate for broad civil Gideon rights. Most notably, the American Bar Association (ABA) endorses appointing counsel for all poor people in adversarial proceedings implicating basic human needs, such as food, shelter, safety, health, or child custody. Historically, bar associations’ support for expanding Gideon has proven quite influential.

Last year, the Supreme Court reopened the civil right-to-counsel debate by agreeing to hear Turner v. Rogers, in which a pro se mother sued a pro se father for failing to pay child support. The issue was whether the father had an automatic right to appointed counsel before he could be conditionally confined for civil contempt. Many activists hoped that the Court would overturn or narrow its earlier precedents and recognize a categorical right to counsel, at least in civil cases that result in a deprivation of liberty. Instead, all nine Justices rejected the claimed right to counsel, though a five- Justice majority required courts to help pro se litigants navigate the process themselves. In child support proceedings, the majority noted, courts may provide this assistance by (1) giving notice that ability to pay is a key issue; (2) asking defendants to fill out financial disclosure forms; (3) allowing defendants to respond to questions about their finances; and (4) making express findings regarding defendants’ ability to pay.

Turner dealt the death blow to hopes for a federally imposed civil Gideon. Thirty years ago, the Lassiter court rejected a civil Gideon right in termination-of-parental-rights cases by a 5-4 vote over a vehement dissent.14 By 2011, the civil Gideon argument could not garner a single vote. That was true even though the defendant in Turner faced one year in jail and Lassiter in dictum had presumed a right to appointed counsel when physical liberty is at stake.15 Given the importance of the liberty interest in Turner, the Court’s decision leaves little room for advocates to insist that a lesser liberty interest qualifies for Gideon’s protections.

Codifying Custom

Timothy Meyer

Codifying decentralized forms of law, such as the common law and customary international law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules and therefore to justify and explain codification. The literature, however, overlooks codification’s distributive consequences. In so doing, it misses a common motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how it affects the general welfare.

This Article fills the gap in the literature by examining three rationales for why states codify customary international law: (1) a desire to clarify the substantive content of customary law in order to promote cooperation (the Clarification Thesis); (2) a desire to enhance compliance through mechanisms such as monitoring, enforcement, and dispute-resolution provisions (the Compliance Thesis); and (3) a desire to define the content of customary rules for a state’s individual benefit (the Capture Thesis). While codification’s proponents conceive of the enterprise in terms of the Clarification and Compliance Theses, I argue that states frequently use codification to capture customary international legal rules to benefit themselves at the expense of the general welfare. As states with divergent views on how to interpret a customary rule pursue conflicting codification efforts, they entrench schisms in the law along regional or ideological lines, thereby delegitimizing customary rules and increasing fragmentation. Thus, far from being an unqualified boon to benevolent legal ordering, codification can replicate, magnify, or alter the power dynamics present in forming bare customary law. Indeed, the fragmentation of customary law that can result from codification actually prevents a unified understanding of customary law from emerging—the exact opposite of codification’s ostensible purpose. This Article uses the Capture Thesis to explain important developments in customary international law, including the outlawing of the slave trade in the nineteenth century, the rise of bilateral investment treaties, and the inability to reach an agreement on a multilateral investment treaty.

Getting More By Asking Less: Justifying and Reforming Tax Law’s Offer-In- Compromise Procedure

Shu-Yi Oei

The Offer in Compromise (OIC) is a procedure by which the IRS may agree to forgive a portion of the tax liabilities of certain taxpayers. This Article suggests a framework for evaluating the effectiveness of any proposed reforms to this pro- cedure. It presents three arguments that support forgiving tax debts through devices such as the OIC. These arguments are rooted in revenue-raising, fair- ness, rehabilitative, and socioeconomic considerations. Unfortunately, an analysis of the OIC’s recent history shows that its current structure tends to undermine its effectiveness. The power to effectuate the procedure is dispersed among four stakeholders with divergent interests: Congress, the IRS, the taxpayer, and finan- cial and other supporters of the taxpayer. Each of these players has conflicting and contradictory interests in OIC-procedure outcomes. Over time, the actions and decisions of each of these players can lead to conflicting and counterproduc- tive behaviors and responses by other players, and this undermines the program’s overall effectiveness. Given this dynamic among stakeholders, reforms that would minimize or eliminate such downward-spiraling interactions of divergent interests should be adopted. Conversely, reforms likely to provoke or exacerbate such interactions should be avoided. This Article provides examples of each type of reform.


To Copy or Not to Copy, That Is the Question: The Game Theory Approach to Protecting Fashion Designs

Tedmond Wong

Fashion designers in the United States, unlike those in many for- eign jurisdictions, enjoy only limited intellectual property protection for their creative endeavors. The American patent, copyright, and trademark systems each present obstacles to obtaining protection for fashion designs. Copyright and trademark law protect certain elements of fashion designs, such as unique fabrics and logos, but the protections do not extend to the general shape and appearance of a fashion design. Moreover, copyright and trademark law do not grant protection to products and features that serve a utilitarian purpose. On the other hand, patent law presents difficult statutory barriers; a design must be novel and nonobvious, and can only gain protection after a lengthy litigation process. The result is a gap in intellectual property protection that leaves fashion designers vulnerable to a stitch-by-stitch, seam-by-seam replication of the designs they labor to create.

While the duplication of fashion designs is not a new phenomenon, the practice has recently received increased attention due to high-profile lawsuits by famous designers including Anna Sui and Diane von Furstenberg against low-end, mass retailers such as Forever 21. The defendants in these cases are known as “fast-fashion” firms for their ability to replicate original designs at alarming speed, on a large scale, and at low cost. Many fashion designers disapprove, claiming that fast-fashion firms’ capabilities of quickly copying original designs and bringing those copies to market deprive original designers of profits and stifle design firm creativity. The fashion industry, represented by the industry group Council of Fashion Designers of America (CFDA), has sought Congress’s assistance to rectify the longstanding dearth of intellectual property protection for fashion designs. The Senate introduced a proposal to amend the copyright statute known as the Innovative Design Protection and Piracy Prevention Act (IDPPPA) last session, and the House of Representatives recently introduced the same proposal.

In this Comment, I address the normative question of the optimal scope of intellectual property protection for fashion designs through game theory’s unique perspective of law and economics. I do so by developing a game theoretic model that evaluates the impact of greater legal protection on the incentives of fashion designers to bring lawsuits to protect their designs and of fast-fashion firms to make replicas of these designs. Analyzing the incentives at play will allow me to predict whether the IDPPPA in its current form will deter fast-fashion firms from replicating designs, encourage innovation, and maximize welfare in the fashion industry.

Scaling the Wall and Running the Mile: The Role of Physical-Selection Procedures in the Disparate Impact Narrative

Yiyang Wu

Since the Supreme Court’s landmark decision in Dothard v. Rawlinson in 1977, gender-based disparate impact litigation has been limited in scope, but there remains room for growth. This Comment focuses on one particularly successful subset of gender-based disparate impact cases, physical-selection procedures. An examination of these decisions shows that plaintiffs have faced an uphill battle in combating unfounded assumptions, both in establishing a prima facie case as well as in rebutting the affirmative defense. Indeed, some lower courts have relied on arguments that are inconsistent with the Supreme Court case law as it has progressed since Griggs v. Duke Power Co.

At the same time, the success of physical-selection procedure cases offers hope for expansion going forward. By contextualizing an industry’s practices, referring to narratives of female applicants, and providing examples of reasonable alternatives, advocates have succeeded in positively framing their arguments in a manner that factfinders are likely to welcome. In doing so, advocates can help reclaim the ideals of Title VII and the disparate impact movement.


When 10 Trials Are Better than 1000: An Evidentiary Perspective on Trial Sampling

Edward K. Cheng

In many mass tort cases, individual trials are simply impractical. Take, for example, Wal-Mart Stores, Inc. v. Dukes, a class action employment discrimination suit that the Supreme Court reviewed last Term. With over 1.5 million women potentially involved in the litigation, the notion of holding individual trials is fanciful. Other recent examples of the phenomenon include the In re World Trade Center Disaster Site Litigation and the fraud litigation against light cigarette manufacturers, in which Judge Weinstein colorfully noted that any “individualized process . . . would have to continue beyond all lives in being.”

Faced with an unserviceable number of plaintiffs, courts have proposed sampling trials: rather than litigating every case, courts would litigate a small subset and award the remaining plaintiffs statistically determined amounts based on the results. But while sampling is standard statistical practice and often accepted as evidence in other legal contexts, appellate courts have balked— based on due process concerns—at the notion of court-mandated, binding trial sampling.

Despite this appellate reluctance, the controversy continues unabated. Trial courts have soldiered on by using nonbinding sampled trials (dubbed “bellwether trials”) to induce settlement, and a few brave appellate courts, including the Ninth Circuit in Dukes, have even hinted at an increased receptivity to sampling. Given that trial courts have few practical alternatives, one wonders if it is just a matter of time before their appellate brethren recognize the necessity of sampling.

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