INTRODUCTION :: “Civil Gideon” is a short-hand name for a concept that has been the white whale of American poverty law for the last forty years-a constitutional civil guarantee to a lawyer to match the criminal guarantee from Gideon v. Wainwright. This Article argues that the pursuit of civil Gideon is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform.
This Article and the civil Gideon advocates agree on one key point. The current treatment of persons too poor to afford counsel in America’s civil courts is an embarrassment and is a serious and growing problem. Despite this common ground, three key difficulties led to this Article. First, Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel, there is little in indigent criminal defense that makes one think that a guarantee of civil counsel will work very well. Second, focusing our attention on pro se court reform is a much, much more promising and likely palliative to the legal problems of the poor. Lastly, and most importantly, civil Gideon is a deeply conservative and backward looking solution to this problem, while pro se court reform has the potential to do more than just help the poor. It has the potential to radically reshape our justice system in ways that assist everyone. At the end of this Article, I describe a science fiction thought experiment: imagine a world where the courts that deal with the poor are so simple, efficient, transparent, and pleasant that for once the justice system of the poor was the envy of the rich. Pro se court reform actually offers this possibility.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital