How the Effort to Secure a “Civil Gideon” Morphed into a Call for Mandatory Representation for Self-Represented Litigants: A Discussion of Rabeea Assy’s Injustice in Person: The Right to Self-Representation

How the Effort to Secure a “Civil Gideon” Morphed into a Call for Mandatory Representation... I. Introduction Scholars often encounter papers or books they wished they would have written, if only they had time to do so. This was my thought when I first saw Rabeea Assy’s Injustice in Person: The Right to Self-Representation.1 The book is a real tour de force on a subject in which I and relatively few other scholars have a great interest. A quick review of the table of contents reveals that the book covers the waterfront of virtually every possible issue arising from self-representation. Assy’s writing style is very clear. He provides the reader with summaries of his arguments at the end of each chapter of the book. His argument in the order he presents it reflects a tight logic, and is heavily referenced with footnotes to empirical studies, anecdotal data, case law, and commentaries. The depth and breadth of his scholarship is truly impressive, especially because he utilizes a comparative approach that includes national and international courts’ management of litigants in person (LIPs).2 While the book is impeccable in all these respects, his argument—that LIPs should not be permitted to access courts unless they are represented by counsel—is not one to which I can subscribe. I address the two supporting pillars of Assy’s claim that mandatory representation should be imposed upon LIPs, namely, (i) that the individual’s right to autonomy (recognized by the US Supreme Court in Faretta v. California3 as the primary justification for the right to self-representation) has no applicability to civil cases, and (ii) that LIPs produce inefficiencies in the administration of justice resulting in unfair and higher legal fees for represented parties. Then, I discuss some (US) constitutional issues relevant to LIP litigation, including due process of law and access to courts. This is followed by an examination of potential practical consequences of Assy’s proposal for mandatory representation. Because of the book’s comprehensiveness, in this piece I’m unable to address all of the topics he covers, and do not comment on his discussion of international tribunals’ management of LIPs, his interesting attack on the plain-English movement, his insightful critique of the procedural justice literature, and other interesting topics. II. Autonomy argument A central, but in my view erroneous, assumption Assy makes about self-representation is that the justification recognized for the right of self-representation namely, that it enhances individual autonomy, is inapplicable to civil cases. In contrast to criminal cases, he asserts that “civil proceedings concerning private law disputes typically pose no threat to individual liberty and involve no public interest other than the efficient and effective administration of justice, [and that] litigants are not entitled to such special consideration as might be accorded criminal defendants.”4 The state is justified in mandating counsel because, first, it is obligated to provide “a fair and reasonable procedural system [and] … A requirement of legal representation is fully compatible with this obligation, insofar as it ensures that the legal system fulfils its function.”5 It must be remembered, however, that autonomy is one aspect of liberty, a bedrock value protected from deprivation in America by the due process clause6 and similar provisions in other constitutions. A common synonym for liberty is freedom, which is a much broader concept than autonomy. Kant wrote that “What else can freedom of the will be but autonomy; that is, the property of the will to be a law unto itself? … [A] free will and a will subject to moral laws are one and the same.”7 Professor Raz agrees: “[A] powerful argument in support of political freedom is derivable from the value of personal autonomy.”8 One cannot be truly free without having autonomy, and vice versa. It is true that freedom and autonomy can be restricted by law for appropriate reasons. In On Liberty, Mill’s view was that autonomy, which he referred to as “individualism,” could be morally restricted if the action one takes causes harms to another: The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people. But if he refrains from molesting others in what concerns them, and merely acts according to his own inclinations and judgment in things which concern only himself, the same reasons which show that opinion should be free prove also that he should be allowed, without molestation, to carry his opinions into practice at his own cost.9 As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it becomes open to discussion.10 Whenever, in short, there is definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty and placed in that of morality or law.11 Having made these points, Mill then notes that there is another, indirect form of harm that an individual may cause, which he refers to as a contingent, or constructive injury. This is an injury a person may cause to society “which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself, the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom.”12 Mill states that “[W]e are now speaking of conduct which, while it does not wrong to others, is supposed to do great harm to the agent himself … .”13 According to Mills, “to extend the bounds of what may be called moral police until it encroaches on the most unquestionably legitimate liberty of the individual is one of the most universal of all human propensities.”14 Preventing intemperance is an example of societies’ “gross usurpations upon the liberty of private life.”15 Likewise, the act of self-representation, while not specifically discussed by Mills, qualifies as an activity which results in constructive harm. In and of itself, it harms no one. It has been recognized for centuries, albeit with some restrictions in modern times. Mills’ characterization of constructive harm as doing “great harm to the agent himself” seems apropos, reflecting Assy’s description of his proposal as “justified paternalism.”16 Self-representation, while not specifically cited by Mills, fits the definition of activities coming within this category. Thus, the absolute prohibition of self-representation as an activity causing mere constructive harm is morally impermissible.17 Assy’s basic argument is that the autonomy rational is context-specific, and only applies in the criminal context.18 “[T]he real issue here is not so much the promotion of free choice per se as the extent of the state’s power over the individual.”19 The conditions that undermine autonomy, however, are irrespective of context. The view that the right to autonomy is limited to criminal cases is an artifact of a prior time when the state was the most powerful entity. Modernly, large corporations, or even small, corporations are also very powerful actors who occupy the same position. They have both more power and greater resources than the individual. The same substantial concern to protect autonomy should apply to civil claims and defenses involving LIPs and corporate entities. The concerns expressed earlier in Faretta about the potential consequences of a criminal prosecution are just as meaningful to much of today’s civil litigation. To argue that “[t]he scope, content and, to a large extent, conduct of a civil case are determined by the parties”20 is not entirely true. The laws giving rise to civil remedies are often drafted with corporate interests in mind. The claim that “the state may occasionally be a party to civil litigation,”21 disregards a host of regulatory proceedings and civil suits initiated by the government. These include enforcement actions by a wide range of administrative agencies which can sue and be sued. And, both the state and corporations have important economic and other interests in the outcome of public and private-sector litigation. While there is a distinction between loss of liberty and loss of property, it is one without a difference. The reality is that, if civil litigation can put a person on the street, penniless, and without recourse to necessary goods and services, his condition is worse than if he were in prison, receiving free meals, a place to sleep, and perhaps some educational opportunities. Additionally, Assy’s contention “that the Faretta reasoning has developed on the basis of a conception of a classic criminal process that involves the state’s attempt to deny individual liberty by force”22 (which does not apply to civil cases) is bottomed upon a particular form of constitutional interpretation. If one interprets the US Constitution strictly, as covering only what was understood in 1787 and 1791 when the Articles and Bill of Rights were, respectively, adopted, then certainly the Faretta reasoning is limited to criminal cases. If, however, one interprets the Constitution to be a living document whose principles are meant to apply to all similar situations, then autonomy interests would necessarily apply also to the civil arena.23 Lastly, Assy’s argument doesn’t take into account that the right to own and alienate property (not that property is the only subject of civil litigation) is considered the sine que non of freedom to many, especially Conservatives and Libertarians.24 Infringement of property rights to them equates to a loss of freedom, just as would the potential consequences of a criminal conviction. In sum, both autonomy and freedom are necessary in a civil society, and are equally important in civil and criminal cases. III. Inefficiencies argument A. Inadequate empirical data In addition to attacking the autonomy rationale’s applicability to self-representation in civil cases, Assy’s argument is based on a second assumption, i.e. that LIPs cause inefficiencies in court administration and increased costs to represented parties. He presents data on the comparatively lower success rates of LIPs,25 but these—while evidencing the obvious fact that parties with counsel fare better in adversary proceedings—do not support the inefficiencies proposition. His chapter on Self-Representation and the Administration of Justice (Ch. 3), in which he argues that LIPs disrupt court efficiency, is devoid of empirical data, and consists entirely of commentaries, with some court decisions sprinkled in. He overgeneralizes by his parade of horribles when stating that LIPs “are likely” to neglect time limits, miss court deadlines, obstruct the general administration of justice, fail to comply with procedures, make unnecessary applications, waste public resources, cause extra costs and delays resulting from judges granting LIPs accommodations, lack the skills and expertise to conduct their cases competently, and on and on. He adds that sometimes they abuse the process by “habitually and persistently filing nuisance claims for the purposes of harassing, intimidating, and wearing down others.”26 These claims are gross exaggerations, and, like similar claims in other parts of his book, they can all be applied to some lawyers. Even assuming LIP-caused court inefficiency is greater than lawyer-caused inefficiency, Assy doesn’t delve deeply into the question of what level of inefficiency is justified in the legal system generally to ensure a fair process for all litigants. In other words, isn’t a certain level of inefficiency the cost of doing business for a justice system? After all, efficiency and expediency are not the primary goals of a justice system; fairness is. And, just as increases in crime eventually require the selection of more judges, the building of more courtrooms, and the building of more penal facilities, so too should the state respond accordingly to the rising tide of LIPs who need to be accommodated to ensure trial fairness and access to justice. This is not in my view accomplished by the imposition of unwanted counsel, which restricts individual autonomy and presents a myriad of practical problems, as described below. As for cost increases to represented parties, these cannot (and need not) be addressed merely by greater numbers of judges. Whatever increases can empirically be attributed to LIPs (if it ever can be), are increasingly minimized by the pretrial assistance programs many US state and federal courts and elsewhere (e.g., England, Canada, Australia, New Zealand) have established. We must always remember that not all LIPs are alike; they fall on a continuum of competence to navigate the legal process. While many LIPs need assistance, most judges have anecdotal evidence of some who have conducted themselves as nearly as competently as some lawyers. So, we shouldn’t assume that all LIPs are procedurally and substantively inept. Success rates cannot be the only measure of whether an LIP has competently prosecuted his claim or presented her defense in a civil case. Like represented litigants, not all LIP claims or defenses have merit, so losing a case is not necessarily an accurate measure of LIP competence. Data on both LIP successes and competence are needed to understand and address the LIP challenge. Most American state and federal courts have confronted the challenge of the rising tide of LIPs that began in the late 1990s with a wide variety of innovative programs and services that have greatly improved their knowledge and preparation for trials. The horror stories recited in some of the court opinions Assy cites are not likely to occur in progressive courts which adopt such programs. There will always be vexatious LIPs, just as there will also be vexatious lawyers, who reduce court efficiency and drive up costs; but these are not the typical self-represented litigants who in good faith pursue legitimate claims or defenses, and expect to be treated justly. Finally, the increased costs and delay arguments are made by judges and lawyers with negative experiences with LIPs. They obviously prefer an adversarial system with two represented parties in every case. But, what if we asked a represented party, “Which would you prefer to be your (civil) case adversary: someone without a lawyer, or someone with a lawyer?” There is no doubt that he or she would choose an LIP adversary since, in their mind, there would be a greater likelihood of success. Studies Assy cites show that this is the reality.27 Thus, if on occasion delay and costs increase where an LIP is the adversary, this is the price represented parties must pay for justice in a constitutional democracy that recognizes the right to self-representation. B. Current American practices A recent report by the Federal Judicial Center28 provides an excellent summary of programs and services which federal courts have implemented to manage nonprisoner LIP litigation. In his chapter on Suggested Case-Management Practices for Civil Pro Se Litigation, the author of that report makes an excellent point: This material is also not meant to be a step-by-step procedural guide for civil pro se cases, which can vary greatly. Cases may be simple or quite complex. The litigants may be as capable as an attorney or poorly educated, may be erudite or not even speak English. Some are sincere and have a legitimate claim, others are abusive filers with a personal or political axe to grind. It is simply not possible to design a one-size-fits-all approach that will be appropriate for every case and every litigant. There should, however, be something here that is potentially helpful in most situations.29 The report describes, among other things, a wide range of programs and approaches for managing LIPs, including standardized forms, instructional manuals, interactive eForms, and early screening of complaints by the court, the court’s staff attorneys, legal services providers, or volunteer lawyers. They provide LIPs with notice and explanations of pleading deficiencies needing correction, thus “lessening the chance that the court will have to deal with an inadequate complaint that may require amending and re-amending while likely inviting repeated motions to dismiss.”30 Additional LIP assistance methods include conferences, held early and often for purposes of case management, pretrial settlement, or discovery, and referral of the case to a host of alternative dispute resolution mechanisms (e.g., early neutral evaluation, mediation, mini-trial, moderated settlement conference, summary jury trial, and arbitration), and limited-scope representation (or, unbundled legal services), pretrial instruction on courtroom procedure and decorum, and proper notice of summary judgment requirements.31 None of these require additional expenditures by the represented party; since the programs are merely instructional for the LIP, counsel need not attend. Courts of course incur added costs not previously expended before the advent of the self-representation movement, but that is the cost of doing justice. Compared to state courts, American federal courts have been much slower to implement LIP assistance and management programs. State courts were the first to address the challenge of LIPs simply because most litigation (civil and criminal) occurs in those courts.32 The National Center for State Courts’ website33 provides a Self-Representation Resource Guide that lists similar programs and other resources developed by state courts.34 This brief review of some current programs to assist LIPs may strike Assy as more of the same: an enumeration of assistance mechanism that will never solve the “problem” of the increasing presence of LIPs in courts, and their negative effect on court efficiency in common law countries.35 He has such an unfavorable view of LIPs’ competence that no set of programs and services would seem to change his position that they are nothing but a burden to the courts that should be eliminated, and that there is no way to deal with them other than to force counsel upon them. I have suggested elsewhere that courts provide LIPs with the elements of the cause of action they are attempting to bring (or, a defense they wish to raise).36 This can be provided by court staff through various means (paper handout, web site, LIP litigation manuals, court forms tailored to various common causes of action, etc.) and reviewed with LIPs during one or more pretrial conferences to ensure that only meritorious pleadings are filed, and relevant evidence is offered at trial. American judges are reluctant to embrace this suggestion, but it is an approach to streamline LIP litigation that should be tried. Assy takes issue with that proposal as well, suggesting that, “[u]nless the case is straightforward, the judge cannot know which elements he needs to explain to the litigant without first interviewing her much as a lawyer would do.”37 The elements of an intended claim or defense would be a good start. That is exactly why an increasing number of American courts use staff or volunteer attorneys to conduct such pre-filing and pre-trial conferences. In fact, so many of the things Assy assumes a judge would be required to do (causing inefficiency) can be done by ancillary personnel.38 None of the LIP management methods is a panacea, and the quality of justice for LIPs will never be made perfect thereby (as it is never for represented parties), or even equal to that of represented parties. But, assistance programs will certainly enhance access to courts and justice for those who choose—for whatever reason—self-representation. More research is needed to evaluate the effectiveness of the numerous assistance programs with which courts in America and elsewhere are experimenting. IV. Constitutional issues A. Due process Assy makes an interesting statement when he says that: This chapter [Ch. 2] is not concerned with whether a right to self-representation in civil proceedings should be recognised under US constitutional law. It is concerned with the principles that underpin the Supreme Court’s approach in the criminal context, and the extent to which they are transferrable to the civil context.39 These principles, however, include the right to the “assistance of counsel” under the (US Constitution’s) Sixth Amendment (for criminal cases), the right guaranteed by the Fifth and Fourteenth Amendments not to be deprived of “liberty” (which by definition includes freedom and autonomy) without due process, the First Amendment right of access to courts, and other constitutional rights. The issue of managing LIPs need not (and should not) be considered solely in the abstract when specific constitutional rights apply to self-representation. Since the Sixth Amendment right to assistance of counsel in criminal cases (upon which the Supreme Court based it’s recognition of a right to self-representation)40 does not apply to civil cases, we can look, inter alia, to the due process clause. The term “due process” has no specific definition, but the Supreme Court has interpreted it to include two aspects: substantive and procedural due process. The former refers to the notion that due process not only protects certain legal procedures, but also protects certain rights unrelated to procedure.41 The latter refers to the requirement of a fair procedure when a deprivation of life, liberty, and property occurs.42 The process that is “due” an individual in any given case is to be determined by weighing a constellation of factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.43 Thus, due process contemplates a gradation in formality of procedures directly correlated to the level of complexity of a deprivation of life, liberty, or property.44 Applying these factors, (i) the private interest affected by an official action of imposing mandatory counsel would be the loss of autonomy, or “personhood,” as the Supreme Court has referred to it, the loss of which would not be partial, but absolute; (ii) the deprivation of autonomy would not be at risk; it would be complete; (iii) the probable value of unwanted counsel to an LIP would be zero, or minimal, at best; and (iv) the governmental interest is merely efficiency based, the potential fiscal burden by a mandatory representation policy would be substantial, and a host of practical problems would arise.45 This analysis militates in favor of recognition of an implied right to self-representation in civil cases (even though the Supreme Court has not yet expressly recognized the right). Assy’s proposal is based largely on the notion that LIPs cannot litigate complex cases. In the case of LIPs, case complexity should not only be measured on the basis of the complexity of the legal issues involved, but by the characteristics of the unrepresented party. The LIP’s age, educational level, language skills, previous legal or quasi-legal training, participation46 in pretrial LIP assistance programs offered by the court, and other indicia of competence are also relevant in the determination of the legal process that is due an individual. To force unwanted counsel on an LIP “for his own good” does not seem to be what the framers of the Constitution intended, at least in so far as the Sixth Amendment right to “assistance” of counsel is concerned, which was not made mandatory as would be the case under Assy’s proposal. The hopes of many for the long-sought right of a civil Gideon47 as a matter of due process were dashed most recently in 2011 by the US Supreme Court’s decision in Tennessee v. Rogers.48 In that case, the Court held that due process did not require appointed counsel in a case involving a respondent father accused of child support arrearages, despite the possibility of a penal sanction upon a finding of intentional non-payment. After reviewing the procedures used in these types of cases under state law,49 the Court found: A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would ‘alter significantly the nature of the proceeding,’ … Doing so could mean a degree of formality or delay that would unduly slow payment to those immediately in need. And, perhaps more important for present purposes, doing so could make the proceedings less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive. The needs of such families play an important role in our analysis.50 Contrary to Assy’s view that LIPs cause court inefficiencies, the Court viewed the introduction of counsel into the proceedings as a potential cause of delay given that these proceedings are usually brought by LIP petitioners. The court, while refusing to recognize a due process right to counsel in civil cases, at least recognized that the LIP petitioner would indeed be faced with an “asymmetry of representation” if she had to litigate against a represented party. That is exactly what LIPs face daily in our courts in many types of cases. Hypothetically, if the Court had found a right to a civil Gideon as a matter of due process, it would be so because the right would be considered “fundamental.”51 The state would therefore not be able to impose a mandatory representation requirement without satisfying the heavy burden of establishing a compelling state interest justification for the requirement.52 It is unlikely that such governmental interest could be established based on inefficiency grounds such that it would override a fundamental right to counsel, and the implied right to self-representation.53 B. Access to courts According to Assy, due to historical, conceptual, and empirical factors, the right to self-representation has been mistakenly conflated with the right of access to court. He argues that these factors have caused the “near absolute” right to self-representation to be taken for granted, but they don’t justify the right.54 The historical reliance upon the right to self-representation in criminal cases is misplaced, he argues, because civil cases do not involve risk of abuse of state power, the matters involve private law, and the parties control the process.55 Typical civil cases “do not entail any threat to the litigants’ liberty.”56 Further, he argues it is wrong to assume that self-representation is essential to afford access to court. Nor should we assume that, just because procedural rights are granted to the parties, “this does not necessarily entail a further right to conduct litigation in person.”57 And, while empirical data on the reason(s) why LIPs want to represent themselves is meager, those who can afford representation but are “incapable” of representing themselves should be required to have counsel.58 The matter of the relative significance of criminal versus civil cases was addressed above.59 Civil cases may have serious consequences that may affect parties more negatively than a period of incarceration. The studies Assy cites regarding reasons given for self-representation indicate that LIPs do not expect that representation is necessary. They believe they can manage their own case, and expect leniency from the court.60 Assuming they are as reasonable as represented litigants, and given the potential adverse consequences of civil litigation, why shouldn’t courts provide LIPs with the services that they expect courts to provide? In other words, if LIPs’ expectation of procedural fairness includes one or more forms of assistance, courts should provide that assistance. Both those who can afford representation but elect for whatever reason to self-represent, and those who cannot afford representation, are equally entitled to reasonable accommodations by the court. Assy also asserts here and throughout the book that LIPs’ interests “override the interests of all other litigants all the time.”61 This is a gross overgeneralization. By his own account LIPs fare worse in litigation than represented parties. If their interests override other litigants interests “all the time,” then their success rates should (contrary to the empirical studies he cites) be relatively higher, not lower, than those of represented parties. Further, Assy suggests that procedural rights granted to parties (such as access to court) need not be rights that they individually possess.62 Rather, they may be granted indirectly to a third person (their lawyer) for their benefit. This is a difficult notion to fathom. People who are told they have certain rights do not expect this statement to have a “catch” to it, namely, that these rights may only be invoked by and through another. If we extend this notion to other rights, then no rights are really rights; they are only contingencies dependent on the decisions and choices made by others. In Meeting the Challenge of Pro Se Litigation, we presented several American legal bases that support a right to self-representation in the civil context, not cited in Injustice.63 A reading of US Supreme Court jurisprudence reveals that the right to self-representation, while not expressly referred to, is impliedly protected under several constitutional bases. These include the privileges and immunities clause,64 the First Amendment right to petition the government for redress of grievances, upon which the right of access to court is based, 65 and the due process clause.66 The Magna Carta itself is a source of the right to self-representation, guaranteeing that “We will sell to no man, we will not deny to any man, either justice or right.”67 The latter was intended to stop the practice of the King imposing fees on litigants, and selling justice by a corrupt judiciary, thus establishing a right to a free and open court.68 The rights to free and open court established in the Magna Carta have been embodied in many state constitutions, and in federal law.69 These rights of access to, and free and open courts, have never been limited to represented parties. Given this constellation of constitutional sources for the rights of access to courts, and free and open courts, the likelihood of imposing mandatory counsel in the US—where the right to appointed counsel for indigents in civil cases has long been refused—is nil. V. Practical consequences A. Funding mandatory representation Assy’s proposal for mandatory representation is based on practice in “most civil law systems,” which he states impose this requirement in most proceedings except in small claims and specialized tribunals. 70 Having learned that mandatory representation is the rule in certain civil law countries, the reader is left wondering, “Who pays for it?” After the constitutional issues, this is the next biggest barrier to implementing a mandatory representation requirement in America. Legal services for the poor in the US and elsewhere is constantly facing budget cutbacks. In fact, President Trump’s recently proposed budget eliminates the Legal Services Corporation, which has been funding legal aid offices for many years.71 Instead of addressing this point, Assy provides a useful review of German civil legal procedure, explaining that it includes detailed statement of claims; early and broad disclosure (discovery) practice; episodic evidence-gathering (without a clear pretrial and trial demarcation); a prohibition on witness coaching; extensive judicial witness examinations in a minimally adversarial atmosphere; a preference for neutral witnesses; and, judicial hints and feedback to the parties regarding deficiencies of their pleadings or proof, allowing parties the opportunity to correct any errors.72 The German model advocated is summarized as a process of “collaboration, discussion, and joint investigation.”73 He accurately notes that “The German system looks like a dream come true for supporters of self-representation in common-law jurisdictions.”74 The final point Assy makes in his description of German civil procedure is that “the solution is affordable fees.”75 Obviously, were this feasible in common-law countries there would be far less self-representation, courts would not need to meet the challenge of the growing numbers of LIPs, and Assy’s book would not need to have been written. But most countries are unlike Germany, in which legal fees are “usually reasonable and predictable; legal aid is widely available (whether as an interest-free loan or a grant); and legal insurance76 provides a practical solution for many Germans.”77 Lawyers in America will not voluntarily make their fees more affordable, and it is wishful thinking (and an illegal restraint on trade) to impose mandatory legal fees.78 Thus, if mandatory representation were required for indigent persons, the money is simply not there. So, until the Constitution or the laws change, or states or the federal government find the substantial funding necessary to pay appointed counsel, a mandatory representation proposal must fail. But, Assy argues that, “it is precisely when the proceedings are less structured and judges are most active that lawyers are necessary, to ensure that the client is not lost in the confusion and that the judge gives due consideration to all available theories or lines of investigation.”79 In making his argument he concedes that German courts have no experience with self-representation.80 That being the case, those courts presumably also have no experience with LIP assistance programs established by numerous US courts. Were courts to go further and provide LIPs with the elements of the causes of action they seek to pursue or defenses they wish to raise, as I have proposed, it would eliminate the need for judges to “give due consideration to all available theories and lines of investigation.” B. Ineffectiveness claims Indigent criminal defendants in US courts often complain of irreconcilable differences with appointed counsel regarding case strategy, their lack of initiative, or their ineffectiveness. Trial judges typically reject the request for new counsel unless a serious conflict of interest exists, explaining to the defendants that they are not entitled to a new lawyer simply based on their subjective opinion that their attorney is incompetent. They will tell the defendant that, if they don’t like the court’s opinion, their choices are to hire their own lawyer or represent themselves. So, many indigent defendants are, from their point of view, forced into representing themselves.81 This has the consequence of trial courts having to manage a self-represented defendant who is given no pretrial support and training, and appellate courts facing an increased number of attorney ineffectiveness claims. The same would occur in the civil context if mandatory representation was the rule. Beyond the question of payment for legal services, trial courts would necessarily face similar ineffectiveness claims and requests for new counsel. Those hearings would then result in increased costs to the represented party (the government), something which Assy rails against. It would be interesting to find out how the countries which impose representation handle this issue. If the conservative approach taken by American criminal courts (i.e. rejection of most such claims) is used in response to ineffectiveness claims in the civil context, one wonders what proportion of litigants then decide to represent themselves in these mandatory representation jurisdictions. Germany, we are told, does not have experience with LIPs due to their mandatory representation requirement, implying litigants do not raise ineffectiveness claims. If German courts don’t have a liberal change-of-counsel policy, they may have a situation of an undetermined number of litigants being forced to work with unwanted counsel. Data are needed to answer this question, as well as to know whether the policy—whatever it is—applies to both retained and appointed counsel. It also raises the possibility of appearance-of-bias issues from the LIP’s perspective. The whole process would add a collateral matter to the adjudication of claims and defenses, and would be an added burden upon civil courts. As far as litigation delay, since it controls the process, it is the court’s obligation to remedy the problem through effective case management. With the proper combination of programs and services, LIPs will be educated, for example, through comprehensive and plainly-written web sites, will be given lay or unbundled representation, etc., and can be prepared for every court hearing. Delay from self-representation will be greatly minimized thereby, or at least reduced to the same level as lawyer-caused delay. C. Scope of mandatory representation At the outset of his book Assy suggests that “in all but simple cases” self-representation is unlikely to benefit LIPs.82 He is more specific one page later when noting that the focus of his mandatory representation suggestion is on cases involving “ordinary private law matters (such as contracts, wills and torts).”83 He exempts “cases giving rise to special consideration, such as those before subject-specific tribunals: administrative, constitutional, or judicial review proceedings; or proceedings involving corporate entities (whether private or state-owned).”84 He then describes the focus of his proposal as being on “cases involving complex factual and legal aspects,” noting that a precise and detailed definition of these terms is not needed; it is sufficient, he argues, that “there are complex cases beyond the capacity of law people.”85 As these excerpts reflect, the scope of Assy’s mandatory representation requirement is quite hazy and somewhat contradictory. It is unclear what is being referred to as a “simple case” for which mandatory representation would not be necessary. Many lawyers will agree that what they thought was a simple case when they accepted it turned out to be a “Frankenstein monster.” His list of exemptions is very broad, and would appear to permit self-representation in a wide swath of cases. So, it is difficult to know exactly what the scope of his proposed rule would be. To posit that there are complex cases beyond the capacity of laypeople begs the question: who measures complexity and how is it to be measured (and at what stages of the litigation) to implement his proposal? We can conceptualize the problem of determining the scope of mandatory representation as the relationship between LIPs with a low, medium, and high level of competence to represent themselves, and their cases, which can be characterized as having a low, medium, and high level of complexity (by whomever and however defined). Figure 1 below is my attempt to graphically illustrate Assy’s proposal. It is based on the premises that (a) LIP competence and case complexity can be measured, (b) that these factors are obvious from the outset of the adjudicative process, and (c) that the level of complexity (or simplicity, if you will) remains constant throughout the litigation. Lawyers and judges know these are false assumptions, but are made here for discussion purposes. We see from the table that certain categories of cases would not require mandatory representation: those in which the LIP’s competence to self-represent is low, medium, or high, and case complexity is low; and, where the LIP’s competence is high and case complexity is low or at a medium level. Where case complexity is high, mandatory representation should be imposed on low and medium-competent LIPs. Figure. 1 View largeDownload slide Cases in which representation would be mandatory Figure. 1 View largeDownload slide Cases in which representation would be mandatory The difficulty, however, is that there will be cases of a highly-competent LIP who may be able to handle a high-complexity case (causing the “?” designation). How would a court identify such cases as ones requiring mandatory representation? Moreover, cases falling into the medium complexity level and brought (or defended) by low or medium-level competence LIPs are also going to be difficult to identify as requiring mandatory representation. Assy’s seemingly contradictory inclusions and exclusions of cases for which his proposal would apply, and the obvious need for much more specific guidelines for courts to be able to make the decision to impose (wanted or unwanted) counsel on low, medium, and high competence LIPs and their low, medium, and high levels of case complexity—not to mention the fluidity of case complexity during the progress of a case—makes the categorical application of the rule nearly impossible. No uniform application of the rule would be possible without specific definitions of LIP competence and case complexity that would govern its application, and, even if they could be devised, judges with different attitudes toward LIPs would interpret them differently. Interestingly, near the end of his book Assy moderates his approach to mandatory representation. He there suggests that mandatory representation “need not be applied in a categorical manner as it is in civil law countries. It could take the form of a discretionary case management tool, to which the court might resort in suitable circumstances.”86 He goes on to recognize that “wasteful conduct of LIPs” can be addressed by courts through costs orders, but quickly notes that impecunious LIPs may not be deterred by them since they can’t afford to pay them.87 In this particular discussion he continues his harsh overgeneralizations that LIPs litigate “with a high likelihood of failure,” that they engage in “protracted proceedings,” they are “likely not to comply with the rules,” and they “waste resources.” As noted earlier, his empirical data supporting such claims is thin, and, moreover, the same critique can be applied to many lawyers. VI. Discussion The recognition by the US Supreme Court of a right to a civil Gideon continues to be a pipe dream. A 2002 Report of the Task Force on Pro Se Litigation of the Conference of Chief Justices (of state supreme courts) made the following observation: Too many still maintain an unrealistic belief that the answer to access to justice is simply to provide more lawyers for low-income and moderate-income people. After more than a decade of struggles to increase lawyer participation in pro bono programs and funding for legal services, the evidence is clear that we have not come close to meeting the demand for affordable legal services. If we have a single-tier justice system, it is only because so many individuals lack the financial wherewithal to enter it at all.”88 As noted above, in Turner v. Rogers the US Supreme Court refused to find a right to civil legal representation in the due process clause. Aside from the possibility of finding counsel willing to provide limited-scope, or unbundled, legal services, this leaves LIPs with one option: self-representation. That may or may not result in any given case in undue delay, or increased costs for an adversary; there is no way to determine whether these outcomes will result. Comparative studies of the relative costs to prosecute or defend against cases involving an LIP versus two represented parties would obviously be useful. Even if we assume that LIPs litigating in courts without any instructional or pretrial programming are generally likely to cause some delay and increased litigation costs, that is the “cost of doing business” for our civil courts. The argument made by Assy (and the late Justices Burger and Blackmun, dissenting in Faretta)89—that permitting LIPs to proceed without counsel would result in an unfair trial—must be juxtaposed against another possible spectacle: that which would result in observing an LIP going to trial with unwanted counsel, and without appropriate assistance. It is certainly plausible that the reasonable persons on a jury would find the court’s refusal to assist the LIP, and the imposition of mandatory, but unwanted counsel, as a more serious spectacle that threatens public trust and confidence in our courts than permitting self-representation. It is not difficult to imagine an LIP complaining throughout a trial about unwanted counsel, and the jury’s wonderment as to why the court would condone such a situation, and not permit self-representation.90 A better solution that balances the LIP’s autonomy interests and the court’s interests in efficiency is for courts themselves to retain staff attorneys, standby counsel, lay court “navigators,” or other ancillary LIP advisors. These individuals would consult with LIPs on such matters as jurisdiction, service of process, identification and service upon proper defendants, the elements of the cause of action (or defense) the LIP intends to bring, pleading deficiencies, and trial practice, generally. Assy himself acknowledges that, subject to certain restrictions, permitting lay representation may be a good alternative to mandatory representation.91 In addition, the numerous LIP assistance programs enumerated above are transforming the LIP landscape by reducing both their drag on judicial administration, and the possibility of increased costs for represented parties. Mandatory representation for LIPs is, simply put, using a sledge hammer to kill an ant. It would eliminate the constitutionally-recognized right of personal autonomy to bring civil cases, thus denying LIPs access to justice. The problems arising from the potential lack of cooperation with unwanted counsel, as occurs in the American criminal appointed-counsel context, would negate any benefit to court efficiency, and would add unnecessary costs at trial and on appeal when LIPs raise ineffectiveness claims. Rabeea Assy’s book is impressively researched, persuasively argued, and quite thought-provoking. His proposal, if it could overcome the myriad of moral, constitutional, legal, and practical barriers enumerated above, would indeed provide benefits to some LIPs, but would deprive others of their autonomy and access-to-court rights. Implementation of such a proposal flies in the face of the US Supreme Court’s adamant position that there is no right to appointed counsel for indigents in civil cases. Thus, the right to a civil Gideon—if it existed—could not, under current American law, morph into the state’s right to foist unwanted counsel on those self-represented litigants who knowingly and intelligently waive their right to counsel. Even if he is correct in arguing that autonomy is not a valid philosophical justification for self-representation in the civil context, the right must necessarily be preserved to protect the fundamental right of access to justice for all. I wish to thank editors Ori Herstein and Alon Harel of JRLS for inviting me to this stimulating symposium. I also thank my colleague Dr. Vincent Samar of the Loyola Department of Philosophy for his valuable insights on the issue of autonomy and self-representation, from which I benefited greatly in writing this comment. Footnotes 1 Rabeea Assy, Injustice in Person: The Right to Self-Representation (2015). 2 “Litigants in person” is the term used here and in Commonwealth countries to refer to unrepresented parties. Most American courts refer to them as pro se (for himself, or in his own behalf) litigants, but courts in some Western American states (e.g. California and Arizona) use the term pro per litigants, short for in propria persona, or in one’s own proper person. 3 422 US 806 (1975). 4 Assy, supra note 1, at 3. 5Id. at 5. 6 The due process clause appears in both the US Constitution’s Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to states). Each amendment prohibits the government or any state from depriving any person of “life, liberty, or property without due process of law.” 7 Immanuel Kant, Metaphysical Foundation of Morals [1785], Third Section, in The Philosophy of Kant: Immanuel Kant’s Moral and Political Writings 211 (Carl J. Friedrich, ed.) (1993). 8 Joseph Raz, The Morality of Freedom 400 (1986). 9 John Stuart Mill, On Liberty [1859] (1988) (Gertrude Himmelfarb, Ed.), at 119. 10Id. at 141. 11Id. at 149. 12Id. 13Id. at 150. 14Id. at 152. 15Id. at 156. 16 Assy, supra note 1, at 155. 17 Self-representation’s increased costs to represented parties is not empirically substantiated, as discussed in sub-section III(A), infra. 18 Assy, supra note 1, at 139–42. 19Id. at 36. 20Id. at 38. 21Id. at 39. 22Id. at 41–42. 23 Never mind that the US Supreme Court is currently comprised of nine justices who are evenly divided between the strict-constructionist and the living-document perspectives of constitutional interpretation, with one “swing vote” (Justice Anthony Kennedy). 24See, e,g., Timothy Sandefur, Cornerstone of Liberty: Property Rights in 21st Centuryamerica (2006); Terry L. Anderson & Laura E. Huggins, Property Rights: A Practical Guide to Freedom and Prosperity (2003); Richard Pipes, Property and Freedom (1999); Bernard H. Siegan, Property and Freedom: The Constitution, The Courts, and Land-use Regulation (1997); James M. Buchanan, Property as a Guarantor of Liberty (1993); James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (1992); Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964) and Milton Friedman, Capitalism and Freedom (1962), all cited in D. Benjamin Barros, Property and Freedom, 4 N.Y.U. J. of L. & Liberty 36, 37 (2009), n. 1. 25 Assy, supra note 1, at 10, n.4. The studies he cites are all subject to various methodological criticisms. For example, the studies of landlord–tenant cases focus on cases “which were estimated to have reasonable prospects of success.” Id. It is unclear how the researchers made that determination, but the same characterization can be made of any case, except for those most obviously frivolous. Also, a higher success rate for represented parties is not necessarily a product of LIP incompetence, but may also be attributed to judges’ preference to hear cases involving the traditional procedure of lawyers advocating for their respective clients. These data have no relationship to the question of the extent to which LIPs cause court inefficiencies or higher costs. 26Id. at 24. 27Id. at 10, n. 4. 28See, e.g., Jefri Wood, Pro Se Case Management for Nonprisoner Civil Litigation (2016). 29Id. at 26. 30Id. at 35. 31Id. at 26–81. 32 See Jona Goldschmidt, Barry Mahoney, Harvey Solomon, & Joan Green, Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers (1998) (reporting results of surveys of state court judges and court managers, and describing programs to manage self-represented litigants). 33http://www.ncsc.org/Topics/Access-and-Fairness/Self-Representation/Resource-Guide.aspx (“One of the biggest challenges in the court system is the increasing number of self-represented litigants. As the number of self-represented litigants in civil cases continues to grow, courts are responding by improving access to justice and making courts more user-friendly.”). 34 These include including simplifying court forms, providing one-on-one assistance, developing guides, handbooks, and instructions on how to proceed, offering court-sponsored legal advice, developing court-based self-help centers, collaborating with libraries and legal services, and using Internet technologies to increase access. 35 Assy’s focus is on common law courts. He views courts in certain civil law countries as having more LIP-friendly procedures. He cites a small sample of the latter as having an ideal system, one which mandates representation for all litigants. See Assy, supra note 1, at 24, n. 53. 36 Jona Goldschmidt, The Pro Se Litigant’s Struggle for Access to Justice: Meeting the Challenge of Bench and Bar Resistance, 40 Fam. Ct. Rev. 36, 46 (2002) (“I believe pro se litigants are entitled as a matter of due process to know the elements of commonly brought causes of action and defenses thereto. It is not enough to instruct a pro se regarding the method of introducing one's evidence if the litigant does not know the ‘rules of the game’ with respect to what it is he or she is required to prove.”). Cf. Jona Goldschmidt, Ensuring Fairness or Just Cluttering Up the Colloquy? Toward Recognition of Pro Se Defendants' Right to be Informed of Available Defenses, 61 Drake L Rev 101–90 (2013) (arguing that fairness requires that courts inform self-represented criminal defendants of legally-recognized defenses, and their respective elements). 37 Assy, supra note 1 at 111–12. 38 Assy erroneously assumes judges will be engaged in the various things that assist LIPs, which will jeopardize their impartiality. Id. at 114. Ultimately, he argues that “their assistance and explanations are too general to be substantially helpful.” Id. at 115. Again, this ignores the growing number of LIP assistance programs described. Aside from staff or volunteer lawyers, another option is for another judge to be assigned to handle pretrial conferences to prepare the LIP for trial, thus avoiding the trial judge’s appearance of bias towards the LIP. A similar strategy is used as an ADR mechanism by some courts which designate a certain judge as the “settlement judge,” whose sole role is to facilitate settlement of cases. This approach avoids the ethical and impartiality issues were trial judges to act in that role. See Jona Goldschmidt and Lisa Milord, Judcial Settlement Ethics: Judges’ Guide 11 (1996) (“The degree of forcefulness used by the judge to encourage settlement, therefore, is … inexorably linked to the trial judge’s duty to remain impartial. For this reason it is considered preferable by many that jurisdictions, where feasible, separate the settlement and trial functions of the judge.”). 39Id. at 47 (emphasis added). 40 As summarized in Indiana v. Edwards, 554 U.S. 164, 170 (2008) (authorizing courts to impose counsel for mentally ill LIPs): The Court [in Faretta] implied that right from: (1) a “nearly universal conviction,” made manifest in state law, that “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so,”… ; (2) Sixth Amendment language granting rights to the “accused”; (3) Sixth Amendment structure indicating that the rights it sets forth, related to the “fair administration of American justice,” are “persona[l]” to the accused, … ; (4) the absence of historical examples of forced representation … ; and (5) “‘respect for the individual,’ ” … (quoting Illinois v. Allen, … a knowing and intelligent waiver of counsel “must be honored out of ‘that respect for the individual which is the lifeblood of the law’ ”). (citations omitted) (emphasis added). 41 Cornell Law School, Legal Information Institute, Substantive Due Process, https://www.law.cornell.edu/wex/substantive_due_process. 42 “[I]t is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is ‘due’ would be unconstitutional.”). Id., https://www.law.cornell.edu/wex/due_process. 43 Matthews v. Eldridge, 424 US 319, 335 (1976). 44 This concept is akin to Professor Frank E. A. Sanders’ almost forgotten proposal for a Multi-Door Courthouse, in which he advocated that the “forum should fit the fuss.” See generally, Larry Ray & Anne L. Clare, The Multi-Door Courthouse Idea: Building the Courthouse of the Future … Today, 1 Ohio St. J. Disp. Resol. 7 (1985). 45See infra, section V, at 15–20. 46 The question of whether LIPs can be mandated to avail themselves of these programs is beyond the scope of this comment. But, contemporary court-annexed, mandatory mediation and arbitration programs provide a strong precedent for such a requirement as a prerequisite to going to trial. 47 Referring to Gideon v. Wainright, 372 US 335 (1963) (holding that the Fourteenth Amendment requires states to appoint counsel for indigent defendants in felony cases). 48 564 US 431 (2011). The court had earlier rejected the claim in Lassiter v. Department of Social Servs. of Durham Cty., 452 US 18 (1981), involving an action to terminate respondents’ parental rights. 49 These were (i) the fact that the critical issue in the case was the “sufficiently straightforward” question of respondent’s financial ability to pay child support, (ii) appointment of counsel for their current or former husband respondent would cause an unfair “asymmetry of representation” because the single mother petitioners are normally unrepresented, and (iii) substitute procedural safeguards existed “which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty,” referring to notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding, use of a form (or the equivalent) to elicit relevant financial information; an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and an express finding by the court that the defendant has the ability to pay. 452 US at 447. 50 564 US at 447 (citations omitted) (emphasis added). 51 “These are rights which the Court recognizes as having a value … essential to individual liberty in our society … [F]undamental rights analysis is simply no more than the modern recognition of … natural law concepts.” Ronald D. Rotunda & John E. Nowak, 2 Treatise on Constitutional Law § 15.7 (2012). These natural law concepts are also embodied in the phrase “natural justice,” in British law, Russell v. Duke of Norfolk, [1949] 65 T.L.R. 225, 231 (natural justice refers to the requirement that there must be a “full and fair opportunity to state one's case”), and Canadian law, In Re Matheson & MacMillan, Ltd. and Minister of Finance, et al., available at [1986] A.C.W.S.J. LEXIS 31504, ¶ 43 (LexisNexis Canada) (finding that the definition of natural justice, like due process, is fluid, and depends upon the circumstances of each case and the subject matter under consideration; the definition “appears to be as elusive as the identity of the Reasonable Man”), and the “remedies based on justice” under Israeli law. Hon. Ammon Straschnov, The Judicial System in Israel, 34 Tulsa L. Rev. 527, 531 (1999). 52 “[T]he Justices of the Supreme Court will apply strict forms of review under the due process clauses and equal protection clause to any governmental actions which limit the exercise of ‘fundamental’ constitutional rights.” Rotunda & Nowak, 2 Treatise on Const. L. § 15.7. 53 The Supreme Court has found other rights to be fundamental, even in the absence of an express right in the text of the Constitution. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (right to marital privacy); Youngberg v. Romeo, 457 U.S. 307 (1982) (right to reasonably safe conditions of confinement in mental hospital). 54 Assy, supra note 1, at 15. 55Id. at 17. 56Id. 57Id. at 19. 58Id. at 21. 59See supra notes 18–24. 60Id. at 21, n. 41. 61Id. at 21. 62Id. at 19 (“procedural rights are conferred upon them [parties]as legal entities, and this does not necessarily entail a further right to conduct litigation in person. As legal entities, litigants can still be accorded full access to court when they are required to exercise this right through lawyers.”). 63 Jona Goldschmidt, et al., Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers 19–24 (1998). 64 Corfield v. Coryell, 6 F.Cas. 546, 551-552, No. 3, 230 (1823) (privileges and immunities clause of the Constitution refers to rights which belong “of right” to “citizens of all free governments,” including the right “to institute and maintain actions of any kind in the courts of the state”). 65 Chambers v. Baltimore & Ohio Ry. Co., 207 US 142 (1907) (“The right to sue and defend in the courts is the alternative of force,” “the right conservative of all other rights,” “the foundation of an orderly government,” “one of the highest and most essential privileges of citizenship,” and “a right not to be denied by states against those of other states,” thus “protected by the federal Constitution”). 66 The right of access to courts under a due process theory is traced to two lines of cases, one involving prisoners’ rights and another establishing the rights of nonprisoner litigants. For prisoners, see Johnson v. Avery, 393 US 483 (1969) (striking down prison regulation prohibiting inmates from assisting each other to prepare habeas corpus petitions and other legal action); Wolff v. McDonnell, 418 US 539, 577-580 (1974) (extending Johnson to civil rights complaints); Ross v. Moffitt, 417 US 600, 616 (1974) (criminal) (“meaningful access” to courts requires states to “assure the indigent defendant an adequate opportunity to present his claims fairly”); and Smith v. Bounds, 430 US 817, 828 (1977) (“[T]he fundamental constitutional right of access to courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law, such as paralegals or law students.”). For nonprisoners, see Boddie v. Connecticut, 401 US 371 (1971) (striking down on due process grounds a statute requiring payment of filing fees for divorce petitions that made no accommodation for indigent parties, and thus denying them access to courts); Tennessee v. Lane, 541 U.S. 509, 533-34 (2004) (recognizing the “fundamental right of access to the courts”). 67 Magna Carta, Art. 40 (1215), http://www.nationalcenter.org/MagnaCarta.html. 68 Simon F. Jesup, The Law of the Federal and State Constitutions of the United States, with an Historical Study of their Principles, a Chronological Table of English Social Legislation, and a Comparative Digest of the Constitutions of the Forty-six States 171 (1908). 69 28 USC. § 452 (“All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders.”). 70 Assy, supra note 1, at 1. 71 Debra C. Weiss, Trump budget eliminates Legal Services Corp. funding, ABA Journal (March 16, 2017), http://www.abajournal.com/news/article/trump_budget_eliminates_funding_for_legal_services_corp/. 72 Assy, supra note 1, at 119–23. 73Id. at 122. This is similar to the process I have advocated for LIP litigation, see Goldschmidt, supra note 32, at 48–54, which Assy (Id. at 155–56) and others (Drew Swank, In Defense of Rules and Roles: the Need to Curb Extreme Forms of Pro Se Assistance and Accommodation in Litigation, 54 Am. U. L. Rev. 1537, 1539 (2005), have attacked as an unfair process. 74 Assy, supra note 1, at 123. 75Id. at 125. 76 There are a few insurance companies that offer limited coverage for legal needs (sometimes as an employment benefit), but these are not well known, and underutilized. See, e.g., LegalEASE, https://www.nationwide.com/individual-legal-plans.jsp; LegalShield, https://www.legalshield.com/personal/plans-and-pricing; ARAG Network Attorney, https://www.araglegal.com/individuals. 77 Assy, supra note 1, at 125. 78 Goldfarb v. Virginia State Bar, 95 S. Ct. 2004 (1975) (minimum state bar fee schedule constitutes price-fixing in violation of Sherman Anti-Trust Act). 79 Assy, supra note 1, at 124. 80Id. 81See, e.g., Smith v. Grams, 565 F.3d 1037, 1045 (7th Cir. 2009) (after discharging two attorneys, defendant “inquired about his options, to which the court responded, ‘Well, … you can represent yourself.”); US v. Daniel, 962 F. 2d 100, 101 (1st Cir. 1992) (“After asking appellant whether he wanted Padilla to continue with the hearing and receiving the response, “[n]ot quite, sir,” the judge said to appellant, “Well, then you represent yourself.”). 82 Assy, supra note 1, at 5. 83Id. at 6. 84Id. One would assume that cases involving constitutional law, judicial review (presumably referring to appeals), and cases against corporations would be included as those for which the author would mandate representation. Curiously, the representation obligation is instead limited to cases involving contracts, wills, and torts, which to many would appear to be much less complex than the exempted categories. 85Id. (emphasis in original). 86Id. at 197. 87Id. at 197–98. 88 Conference of Chief Justices, Report of the Task Force on Pro Se Litigation (2002), available at http://ccj.ncsc.org/Resources/Reports.aspx. 89 “True freedom of choice and society's interest in seeing that justice is achieved can be vindicated only if the trial court retains discretion to reject any attempted waiver of counsel and insist that the accused be tried according to the Constitution. This discretion is as critical an element of basic fairness as a trial judge's discretion to decline to accept a plea of guilty.” 422 U.S. at 840 (Burger, J., dissenting); “If there is any truth to the old proverb that ‘one who is his own lawyer has a fool for a client,’ the Court by its opinion today now bestows a constitutional right on one to make a fool of himself.” Id. at 852 (Blackmun, J., dissenting). 90Cf. Jona Goldschmidt, Autonomy and “Gray-Area” Pro Se Defendants: Ensuring Competence to GuaranteeFreedom, 6 Nw. J. of Law & Social Pol’y 130–77 (2011) (arguing that courts improperly “use”—in a Kantian sense—mentally ill pro se defendants when they mandate counsel in order to avoid a “spectacle,” where other alternative forms of representation and assistance are available). The reader may recall the case of Bobby Seale, one of the eight organizers of the 1968 Democratic Convention anti-war protests in Chicago, who was tried for conspiracy to cross state lines to incite a riot. The federal trial judge, Julius Hoffman, forced unwanted counsel upon him over Seale’s repeated objections, and insistence on his right to self-representation, leading the judge to order that he be bound and gagged, and eventually removed from the courtroom. See U.S. v. Seale, 461 F. 2d 345 (7th Cir. 1972) (reversing contempt orders and sanctions imposed by the trial judge). 91 Assy, supra note 1, at 132. © The Author(s) 2018. Published by Oxford University Press and the Hebrew University of Jerusalem. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Jerusalem Review of Legal Studies Oxford University Press

How the Effort to Secure a “Civil Gideon” Morphed into a Call for Mandatory Representation for Self-Represented Litigants: A Discussion of Rabeea Assy’s Injustice in Person: The Right to Self-Representation

Loading next page...
 
/lp/ou_press/how-the-effort-to-secure-a-civil-gideon-morphed-into-a-call-for-0MALRuqasc
Publisher
Oxford University Press
Copyright
© The Author(s) 2018. Published by Oxford University Press and the Hebrew University of Jerusalem. All rights reserved. For Permissions, please email: journals.permissions@oup.com
ISSN
2219-7117
eISSN
2219-7125
D.O.I.
10.1093/jrls/jlx032
Publisher site
See Article on Publisher Site

Abstract

I. Introduction Scholars often encounter papers or books they wished they would have written, if only they had time to do so. This was my thought when I first saw Rabeea Assy’s Injustice in Person: The Right to Self-Representation.1 The book is a real tour de force on a subject in which I and relatively few other scholars have a great interest. A quick review of the table of contents reveals that the book covers the waterfront of virtually every possible issue arising from self-representation. Assy’s writing style is very clear. He provides the reader with summaries of his arguments at the end of each chapter of the book. His argument in the order he presents it reflects a tight logic, and is heavily referenced with footnotes to empirical studies, anecdotal data, case law, and commentaries. The depth and breadth of his scholarship is truly impressive, especially because he utilizes a comparative approach that includes national and international courts’ management of litigants in person (LIPs).2 While the book is impeccable in all these respects, his argument—that LIPs should not be permitted to access courts unless they are represented by counsel—is not one to which I can subscribe. I address the two supporting pillars of Assy’s claim that mandatory representation should be imposed upon LIPs, namely, (i) that the individual’s right to autonomy (recognized by the US Supreme Court in Faretta v. California3 as the primary justification for the right to self-representation) has no applicability to civil cases, and (ii) that LIPs produce inefficiencies in the administration of justice resulting in unfair and higher legal fees for represented parties. Then, I discuss some (US) constitutional issues relevant to LIP litigation, including due process of law and access to courts. This is followed by an examination of potential practical consequences of Assy’s proposal for mandatory representation. Because of the book’s comprehensiveness, in this piece I’m unable to address all of the topics he covers, and do not comment on his discussion of international tribunals’ management of LIPs, his interesting attack on the plain-English movement, his insightful critique of the procedural justice literature, and other interesting topics. II. Autonomy argument A central, but in my view erroneous, assumption Assy makes about self-representation is that the justification recognized for the right of self-representation namely, that it enhances individual autonomy, is inapplicable to civil cases. In contrast to criminal cases, he asserts that “civil proceedings concerning private law disputes typically pose no threat to individual liberty and involve no public interest other than the efficient and effective administration of justice, [and that] litigants are not entitled to such special consideration as might be accorded criminal defendants.”4 The state is justified in mandating counsel because, first, it is obligated to provide “a fair and reasonable procedural system [and] … A requirement of legal representation is fully compatible with this obligation, insofar as it ensures that the legal system fulfils its function.”5 It must be remembered, however, that autonomy is one aspect of liberty, a bedrock value protected from deprivation in America by the due process clause6 and similar provisions in other constitutions. A common synonym for liberty is freedom, which is a much broader concept than autonomy. Kant wrote that “What else can freedom of the will be but autonomy; that is, the property of the will to be a law unto itself? … [A] free will and a will subject to moral laws are one and the same.”7 Professor Raz agrees: “[A] powerful argument in support of political freedom is derivable from the value of personal autonomy.”8 One cannot be truly free without having autonomy, and vice versa. It is true that freedom and autonomy can be restricted by law for appropriate reasons. In On Liberty, Mill’s view was that autonomy, which he referred to as “individualism,” could be morally restricted if the action one takes causes harms to another: The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people. But if he refrains from molesting others in what concerns them, and merely acts according to his own inclinations and judgment in things which concern only himself, the same reasons which show that opinion should be free prove also that he should be allowed, without molestation, to carry his opinions into practice at his own cost.9 As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it becomes open to discussion.10 Whenever, in short, there is definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty and placed in that of morality or law.11 Having made these points, Mill then notes that there is another, indirect form of harm that an individual may cause, which he refers to as a contingent, or constructive injury. This is an injury a person may cause to society “which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself, the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom.”12 Mill states that “[W]e are now speaking of conduct which, while it does not wrong to others, is supposed to do great harm to the agent himself … .”13 According to Mills, “to extend the bounds of what may be called moral police until it encroaches on the most unquestionably legitimate liberty of the individual is one of the most universal of all human propensities.”14 Preventing intemperance is an example of societies’ “gross usurpations upon the liberty of private life.”15 Likewise, the act of self-representation, while not specifically discussed by Mills, qualifies as an activity which results in constructive harm. In and of itself, it harms no one. It has been recognized for centuries, albeit with some restrictions in modern times. Mills’ characterization of constructive harm as doing “great harm to the agent himself” seems apropos, reflecting Assy’s description of his proposal as “justified paternalism.”16 Self-representation, while not specifically cited by Mills, fits the definition of activities coming within this category. Thus, the absolute prohibition of self-representation as an activity causing mere constructive harm is morally impermissible.17 Assy’s basic argument is that the autonomy rational is context-specific, and only applies in the criminal context.18 “[T]he real issue here is not so much the promotion of free choice per se as the extent of the state’s power over the individual.”19 The conditions that undermine autonomy, however, are irrespective of context. The view that the right to autonomy is limited to criminal cases is an artifact of a prior time when the state was the most powerful entity. Modernly, large corporations, or even small, corporations are also very powerful actors who occupy the same position. They have both more power and greater resources than the individual. The same substantial concern to protect autonomy should apply to civil claims and defenses involving LIPs and corporate entities. The concerns expressed earlier in Faretta about the potential consequences of a criminal prosecution are just as meaningful to much of today’s civil litigation. To argue that “[t]he scope, content and, to a large extent, conduct of a civil case are determined by the parties”20 is not entirely true. The laws giving rise to civil remedies are often drafted with corporate interests in mind. The claim that “the state may occasionally be a party to civil litigation,”21 disregards a host of regulatory proceedings and civil suits initiated by the government. These include enforcement actions by a wide range of administrative agencies which can sue and be sued. And, both the state and corporations have important economic and other interests in the outcome of public and private-sector litigation. While there is a distinction between loss of liberty and loss of property, it is one without a difference. The reality is that, if civil litigation can put a person on the street, penniless, and without recourse to necessary goods and services, his condition is worse than if he were in prison, receiving free meals, a place to sleep, and perhaps some educational opportunities. Additionally, Assy’s contention “that the Faretta reasoning has developed on the basis of a conception of a classic criminal process that involves the state’s attempt to deny individual liberty by force”22 (which does not apply to civil cases) is bottomed upon a particular form of constitutional interpretation. If one interprets the US Constitution strictly, as covering only what was understood in 1787 and 1791 when the Articles and Bill of Rights were, respectively, adopted, then certainly the Faretta reasoning is limited to criminal cases. If, however, one interprets the Constitution to be a living document whose principles are meant to apply to all similar situations, then autonomy interests would necessarily apply also to the civil arena.23 Lastly, Assy’s argument doesn’t take into account that the right to own and alienate property (not that property is the only subject of civil litigation) is considered the sine que non of freedom to many, especially Conservatives and Libertarians.24 Infringement of property rights to them equates to a loss of freedom, just as would the potential consequences of a criminal conviction. In sum, both autonomy and freedom are necessary in a civil society, and are equally important in civil and criminal cases. III. Inefficiencies argument A. Inadequate empirical data In addition to attacking the autonomy rationale’s applicability to self-representation in civil cases, Assy’s argument is based on a second assumption, i.e. that LIPs cause inefficiencies in court administration and increased costs to represented parties. He presents data on the comparatively lower success rates of LIPs,25 but these—while evidencing the obvious fact that parties with counsel fare better in adversary proceedings—do not support the inefficiencies proposition. His chapter on Self-Representation and the Administration of Justice (Ch. 3), in which he argues that LIPs disrupt court efficiency, is devoid of empirical data, and consists entirely of commentaries, with some court decisions sprinkled in. He overgeneralizes by his parade of horribles when stating that LIPs “are likely” to neglect time limits, miss court deadlines, obstruct the general administration of justice, fail to comply with procedures, make unnecessary applications, waste public resources, cause extra costs and delays resulting from judges granting LIPs accommodations, lack the skills and expertise to conduct their cases competently, and on and on. He adds that sometimes they abuse the process by “habitually and persistently filing nuisance claims for the purposes of harassing, intimidating, and wearing down others.”26 These claims are gross exaggerations, and, like similar claims in other parts of his book, they can all be applied to some lawyers. Even assuming LIP-caused court inefficiency is greater than lawyer-caused inefficiency, Assy doesn’t delve deeply into the question of what level of inefficiency is justified in the legal system generally to ensure a fair process for all litigants. In other words, isn’t a certain level of inefficiency the cost of doing business for a justice system? After all, efficiency and expediency are not the primary goals of a justice system; fairness is. And, just as increases in crime eventually require the selection of more judges, the building of more courtrooms, and the building of more penal facilities, so too should the state respond accordingly to the rising tide of LIPs who need to be accommodated to ensure trial fairness and access to justice. This is not in my view accomplished by the imposition of unwanted counsel, which restricts individual autonomy and presents a myriad of practical problems, as described below. As for cost increases to represented parties, these cannot (and need not) be addressed merely by greater numbers of judges. Whatever increases can empirically be attributed to LIPs (if it ever can be), are increasingly minimized by the pretrial assistance programs many US state and federal courts and elsewhere (e.g., England, Canada, Australia, New Zealand) have established. We must always remember that not all LIPs are alike; they fall on a continuum of competence to navigate the legal process. While many LIPs need assistance, most judges have anecdotal evidence of some who have conducted themselves as nearly as competently as some lawyers. So, we shouldn’t assume that all LIPs are procedurally and substantively inept. Success rates cannot be the only measure of whether an LIP has competently prosecuted his claim or presented her defense in a civil case. Like represented litigants, not all LIP claims or defenses have merit, so losing a case is not necessarily an accurate measure of LIP competence. Data on both LIP successes and competence are needed to understand and address the LIP challenge. Most American state and federal courts have confronted the challenge of the rising tide of LIPs that began in the late 1990s with a wide variety of innovative programs and services that have greatly improved their knowledge and preparation for trials. The horror stories recited in some of the court opinions Assy cites are not likely to occur in progressive courts which adopt such programs. There will always be vexatious LIPs, just as there will also be vexatious lawyers, who reduce court efficiency and drive up costs; but these are not the typical self-represented litigants who in good faith pursue legitimate claims or defenses, and expect to be treated justly. Finally, the increased costs and delay arguments are made by judges and lawyers with negative experiences with LIPs. They obviously prefer an adversarial system with two represented parties in every case. But, what if we asked a represented party, “Which would you prefer to be your (civil) case adversary: someone without a lawyer, or someone with a lawyer?” There is no doubt that he or she would choose an LIP adversary since, in their mind, there would be a greater likelihood of success. Studies Assy cites show that this is the reality.27 Thus, if on occasion delay and costs increase where an LIP is the adversary, this is the price represented parties must pay for justice in a constitutional democracy that recognizes the right to self-representation. B. Current American practices A recent report by the Federal Judicial Center28 provides an excellent summary of programs and services which federal courts have implemented to manage nonprisoner LIP litigation. In his chapter on Suggested Case-Management Practices for Civil Pro Se Litigation, the author of that report makes an excellent point: This material is also not meant to be a step-by-step procedural guide for civil pro se cases, which can vary greatly. Cases may be simple or quite complex. The litigants may be as capable as an attorney or poorly educated, may be erudite or not even speak English. Some are sincere and have a legitimate claim, others are abusive filers with a personal or political axe to grind. It is simply not possible to design a one-size-fits-all approach that will be appropriate for every case and every litigant. There should, however, be something here that is potentially helpful in most situations.29 The report describes, among other things, a wide range of programs and approaches for managing LIPs, including standardized forms, instructional manuals, interactive eForms, and early screening of complaints by the court, the court’s staff attorneys, legal services providers, or volunteer lawyers. They provide LIPs with notice and explanations of pleading deficiencies needing correction, thus “lessening the chance that the court will have to deal with an inadequate complaint that may require amending and re-amending while likely inviting repeated motions to dismiss.”30 Additional LIP assistance methods include conferences, held early and often for purposes of case management, pretrial settlement, or discovery, and referral of the case to a host of alternative dispute resolution mechanisms (e.g., early neutral evaluation, mediation, mini-trial, moderated settlement conference, summary jury trial, and arbitration), and limited-scope representation (or, unbundled legal services), pretrial instruction on courtroom procedure and decorum, and proper notice of summary judgment requirements.31 None of these require additional expenditures by the represented party; since the programs are merely instructional for the LIP, counsel need not attend. Courts of course incur added costs not previously expended before the advent of the self-representation movement, but that is the cost of doing justice. Compared to state courts, American federal courts have been much slower to implement LIP assistance and management programs. State courts were the first to address the challenge of LIPs simply because most litigation (civil and criminal) occurs in those courts.32 The National Center for State Courts’ website33 provides a Self-Representation Resource Guide that lists similar programs and other resources developed by state courts.34 This brief review of some current programs to assist LIPs may strike Assy as more of the same: an enumeration of assistance mechanism that will never solve the “problem” of the increasing presence of LIPs in courts, and their negative effect on court efficiency in common law countries.35 He has such an unfavorable view of LIPs’ competence that no set of programs and services would seem to change his position that they are nothing but a burden to the courts that should be eliminated, and that there is no way to deal with them other than to force counsel upon them. I have suggested elsewhere that courts provide LIPs with the elements of the cause of action they are attempting to bring (or, a defense they wish to raise).36 This can be provided by court staff through various means (paper handout, web site, LIP litigation manuals, court forms tailored to various common causes of action, etc.) and reviewed with LIPs during one or more pretrial conferences to ensure that only meritorious pleadings are filed, and relevant evidence is offered at trial. American judges are reluctant to embrace this suggestion, but it is an approach to streamline LIP litigation that should be tried. Assy takes issue with that proposal as well, suggesting that, “[u]nless the case is straightforward, the judge cannot know which elements he needs to explain to the litigant without first interviewing her much as a lawyer would do.”37 The elements of an intended claim or defense would be a good start. That is exactly why an increasing number of American courts use staff or volunteer attorneys to conduct such pre-filing and pre-trial conferences. In fact, so many of the things Assy assumes a judge would be required to do (causing inefficiency) can be done by ancillary personnel.38 None of the LIP management methods is a panacea, and the quality of justice for LIPs will never be made perfect thereby (as it is never for represented parties), or even equal to that of represented parties. But, assistance programs will certainly enhance access to courts and justice for those who choose—for whatever reason—self-representation. More research is needed to evaluate the effectiveness of the numerous assistance programs with which courts in America and elsewhere are experimenting. IV. Constitutional issues A. Due process Assy makes an interesting statement when he says that: This chapter [Ch. 2] is not concerned with whether a right to self-representation in civil proceedings should be recognised under US constitutional law. It is concerned with the principles that underpin the Supreme Court’s approach in the criminal context, and the extent to which they are transferrable to the civil context.39 These principles, however, include the right to the “assistance of counsel” under the (US Constitution’s) Sixth Amendment (for criminal cases), the right guaranteed by the Fifth and Fourteenth Amendments not to be deprived of “liberty” (which by definition includes freedom and autonomy) without due process, the First Amendment right of access to courts, and other constitutional rights. The issue of managing LIPs need not (and should not) be considered solely in the abstract when specific constitutional rights apply to self-representation. Since the Sixth Amendment right to assistance of counsel in criminal cases (upon which the Supreme Court based it’s recognition of a right to self-representation)40 does not apply to civil cases, we can look, inter alia, to the due process clause. The term “due process” has no specific definition, but the Supreme Court has interpreted it to include two aspects: substantive and procedural due process. The former refers to the notion that due process not only protects certain legal procedures, but also protects certain rights unrelated to procedure.41 The latter refers to the requirement of a fair procedure when a deprivation of life, liberty, and property occurs.42 The process that is “due” an individual in any given case is to be determined by weighing a constellation of factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.43 Thus, due process contemplates a gradation in formality of procedures directly correlated to the level of complexity of a deprivation of life, liberty, or property.44 Applying these factors, (i) the private interest affected by an official action of imposing mandatory counsel would be the loss of autonomy, or “personhood,” as the Supreme Court has referred to it, the loss of which would not be partial, but absolute; (ii) the deprivation of autonomy would not be at risk; it would be complete; (iii) the probable value of unwanted counsel to an LIP would be zero, or minimal, at best; and (iv) the governmental interest is merely efficiency based, the potential fiscal burden by a mandatory representation policy would be substantial, and a host of practical problems would arise.45 This analysis militates in favor of recognition of an implied right to self-representation in civil cases (even though the Supreme Court has not yet expressly recognized the right). Assy’s proposal is based largely on the notion that LIPs cannot litigate complex cases. In the case of LIPs, case complexity should not only be measured on the basis of the complexity of the legal issues involved, but by the characteristics of the unrepresented party. The LIP’s age, educational level, language skills, previous legal or quasi-legal training, participation46 in pretrial LIP assistance programs offered by the court, and other indicia of competence are also relevant in the determination of the legal process that is due an individual. To force unwanted counsel on an LIP “for his own good” does not seem to be what the framers of the Constitution intended, at least in so far as the Sixth Amendment right to “assistance” of counsel is concerned, which was not made mandatory as would be the case under Assy’s proposal. The hopes of many for the long-sought right of a civil Gideon47 as a matter of due process were dashed most recently in 2011 by the US Supreme Court’s decision in Tennessee v. Rogers.48 In that case, the Court held that due process did not require appointed counsel in a case involving a respondent father accused of child support arrearages, despite the possibility of a penal sanction upon a finding of intentional non-payment. After reviewing the procedures used in these types of cases under state law,49 the Court found: A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would ‘alter significantly the nature of the proceeding,’ … Doing so could mean a degree of formality or delay that would unduly slow payment to those immediately in need. And, perhaps more important for present purposes, doing so could make the proceedings less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive. The needs of such families play an important role in our analysis.50 Contrary to Assy’s view that LIPs cause court inefficiencies, the Court viewed the introduction of counsel into the proceedings as a potential cause of delay given that these proceedings are usually brought by LIP petitioners. The court, while refusing to recognize a due process right to counsel in civil cases, at least recognized that the LIP petitioner would indeed be faced with an “asymmetry of representation” if she had to litigate against a represented party. That is exactly what LIPs face daily in our courts in many types of cases. Hypothetically, if the Court had found a right to a civil Gideon as a matter of due process, it would be so because the right would be considered “fundamental.”51 The state would therefore not be able to impose a mandatory representation requirement without satisfying the heavy burden of establishing a compelling state interest justification for the requirement.52 It is unlikely that such governmental interest could be established based on inefficiency grounds such that it would override a fundamental right to counsel, and the implied right to self-representation.53 B. Access to courts According to Assy, due to historical, conceptual, and empirical factors, the right to self-representation has been mistakenly conflated with the right of access to court. He argues that these factors have caused the “near absolute” right to self-representation to be taken for granted, but they don’t justify the right.54 The historical reliance upon the right to self-representation in criminal cases is misplaced, he argues, because civil cases do not involve risk of abuse of state power, the matters involve private law, and the parties control the process.55 Typical civil cases “do not entail any threat to the litigants’ liberty.”56 Further, he argues it is wrong to assume that self-representation is essential to afford access to court. Nor should we assume that, just because procedural rights are granted to the parties, “this does not necessarily entail a further right to conduct litigation in person.”57 And, while empirical data on the reason(s) why LIPs want to represent themselves is meager, those who can afford representation but are “incapable” of representing themselves should be required to have counsel.58 The matter of the relative significance of criminal versus civil cases was addressed above.59 Civil cases may have serious consequences that may affect parties more negatively than a period of incarceration. The studies Assy cites regarding reasons given for self-representation indicate that LIPs do not expect that representation is necessary. They believe they can manage their own case, and expect leniency from the court.60 Assuming they are as reasonable as represented litigants, and given the potential adverse consequences of civil litigation, why shouldn’t courts provide LIPs with the services that they expect courts to provide? In other words, if LIPs’ expectation of procedural fairness includes one or more forms of assistance, courts should provide that assistance. Both those who can afford representation but elect for whatever reason to self-represent, and those who cannot afford representation, are equally entitled to reasonable accommodations by the court. Assy also asserts here and throughout the book that LIPs’ interests “override the interests of all other litigants all the time.”61 This is a gross overgeneralization. By his own account LIPs fare worse in litigation than represented parties. If their interests override other litigants interests “all the time,” then their success rates should (contrary to the empirical studies he cites) be relatively higher, not lower, than those of represented parties. Further, Assy suggests that procedural rights granted to parties (such as access to court) need not be rights that they individually possess.62 Rather, they may be granted indirectly to a third person (their lawyer) for their benefit. This is a difficult notion to fathom. People who are told they have certain rights do not expect this statement to have a “catch” to it, namely, that these rights may only be invoked by and through another. If we extend this notion to other rights, then no rights are really rights; they are only contingencies dependent on the decisions and choices made by others. In Meeting the Challenge of Pro Se Litigation, we presented several American legal bases that support a right to self-representation in the civil context, not cited in Injustice.63 A reading of US Supreme Court jurisprudence reveals that the right to self-representation, while not expressly referred to, is impliedly protected under several constitutional bases. These include the privileges and immunities clause,64 the First Amendment right to petition the government for redress of grievances, upon which the right of access to court is based, 65 and the due process clause.66 The Magna Carta itself is a source of the right to self-representation, guaranteeing that “We will sell to no man, we will not deny to any man, either justice or right.”67 The latter was intended to stop the practice of the King imposing fees on litigants, and selling justice by a corrupt judiciary, thus establishing a right to a free and open court.68 The rights to free and open court established in the Magna Carta have been embodied in many state constitutions, and in federal law.69 These rights of access to, and free and open courts, have never been limited to represented parties. Given this constellation of constitutional sources for the rights of access to courts, and free and open courts, the likelihood of imposing mandatory counsel in the US—where the right to appointed counsel for indigents in civil cases has long been refused—is nil. V. Practical consequences A. Funding mandatory representation Assy’s proposal for mandatory representation is based on practice in “most civil law systems,” which he states impose this requirement in most proceedings except in small claims and specialized tribunals. 70 Having learned that mandatory representation is the rule in certain civil law countries, the reader is left wondering, “Who pays for it?” After the constitutional issues, this is the next biggest barrier to implementing a mandatory representation requirement in America. Legal services for the poor in the US and elsewhere is constantly facing budget cutbacks. In fact, President Trump’s recently proposed budget eliminates the Legal Services Corporation, which has been funding legal aid offices for many years.71 Instead of addressing this point, Assy provides a useful review of German civil legal procedure, explaining that it includes detailed statement of claims; early and broad disclosure (discovery) practice; episodic evidence-gathering (without a clear pretrial and trial demarcation); a prohibition on witness coaching; extensive judicial witness examinations in a minimally adversarial atmosphere; a preference for neutral witnesses; and, judicial hints and feedback to the parties regarding deficiencies of their pleadings or proof, allowing parties the opportunity to correct any errors.72 The German model advocated is summarized as a process of “collaboration, discussion, and joint investigation.”73 He accurately notes that “The German system looks like a dream come true for supporters of self-representation in common-law jurisdictions.”74 The final point Assy makes in his description of German civil procedure is that “the solution is affordable fees.”75 Obviously, were this feasible in common-law countries there would be far less self-representation, courts would not need to meet the challenge of the growing numbers of LIPs, and Assy’s book would not need to have been written. But most countries are unlike Germany, in which legal fees are “usually reasonable and predictable; legal aid is widely available (whether as an interest-free loan or a grant); and legal insurance76 provides a practical solution for many Germans.”77 Lawyers in America will not voluntarily make their fees more affordable, and it is wishful thinking (and an illegal restraint on trade) to impose mandatory legal fees.78 Thus, if mandatory representation were required for indigent persons, the money is simply not there. So, until the Constitution or the laws change, or states or the federal government find the substantial funding necessary to pay appointed counsel, a mandatory representation proposal must fail. But, Assy argues that, “it is precisely when the proceedings are less structured and judges are most active that lawyers are necessary, to ensure that the client is not lost in the confusion and that the judge gives due consideration to all available theories or lines of investigation.”79 In making his argument he concedes that German courts have no experience with self-representation.80 That being the case, those courts presumably also have no experience with LIP assistance programs established by numerous US courts. Were courts to go further and provide LIPs with the elements of the causes of action they seek to pursue or defenses they wish to raise, as I have proposed, it would eliminate the need for judges to “give due consideration to all available theories and lines of investigation.” B. Ineffectiveness claims Indigent criminal defendants in US courts often complain of irreconcilable differences with appointed counsel regarding case strategy, their lack of initiative, or their ineffectiveness. Trial judges typically reject the request for new counsel unless a serious conflict of interest exists, explaining to the defendants that they are not entitled to a new lawyer simply based on their subjective opinion that their attorney is incompetent. They will tell the defendant that, if they don’t like the court’s opinion, their choices are to hire their own lawyer or represent themselves. So, many indigent defendants are, from their point of view, forced into representing themselves.81 This has the consequence of trial courts having to manage a self-represented defendant who is given no pretrial support and training, and appellate courts facing an increased number of attorney ineffectiveness claims. The same would occur in the civil context if mandatory representation was the rule. Beyond the question of payment for legal services, trial courts would necessarily face similar ineffectiveness claims and requests for new counsel. Those hearings would then result in increased costs to the represented party (the government), something which Assy rails against. It would be interesting to find out how the countries which impose representation handle this issue. If the conservative approach taken by American criminal courts (i.e. rejection of most such claims) is used in response to ineffectiveness claims in the civil context, one wonders what proportion of litigants then decide to represent themselves in these mandatory representation jurisdictions. Germany, we are told, does not have experience with LIPs due to their mandatory representation requirement, implying litigants do not raise ineffectiveness claims. If German courts don’t have a liberal change-of-counsel policy, they may have a situation of an undetermined number of litigants being forced to work with unwanted counsel. Data are needed to answer this question, as well as to know whether the policy—whatever it is—applies to both retained and appointed counsel. It also raises the possibility of appearance-of-bias issues from the LIP’s perspective. The whole process would add a collateral matter to the adjudication of claims and defenses, and would be an added burden upon civil courts. As far as litigation delay, since it controls the process, it is the court’s obligation to remedy the problem through effective case management. With the proper combination of programs and services, LIPs will be educated, for example, through comprehensive and plainly-written web sites, will be given lay or unbundled representation, etc., and can be prepared for every court hearing. Delay from self-representation will be greatly minimized thereby, or at least reduced to the same level as lawyer-caused delay. C. Scope of mandatory representation At the outset of his book Assy suggests that “in all but simple cases” self-representation is unlikely to benefit LIPs.82 He is more specific one page later when noting that the focus of his mandatory representation suggestion is on cases involving “ordinary private law matters (such as contracts, wills and torts).”83 He exempts “cases giving rise to special consideration, such as those before subject-specific tribunals: administrative, constitutional, or judicial review proceedings; or proceedings involving corporate entities (whether private or state-owned).”84 He then describes the focus of his proposal as being on “cases involving complex factual and legal aspects,” noting that a precise and detailed definition of these terms is not needed; it is sufficient, he argues, that “there are complex cases beyond the capacity of law people.”85 As these excerpts reflect, the scope of Assy’s mandatory representation requirement is quite hazy and somewhat contradictory. It is unclear what is being referred to as a “simple case” for which mandatory representation would not be necessary. Many lawyers will agree that what they thought was a simple case when they accepted it turned out to be a “Frankenstein monster.” His list of exemptions is very broad, and would appear to permit self-representation in a wide swath of cases. So, it is difficult to know exactly what the scope of his proposed rule would be. To posit that there are complex cases beyond the capacity of laypeople begs the question: who measures complexity and how is it to be measured (and at what stages of the litigation) to implement his proposal? We can conceptualize the problem of determining the scope of mandatory representation as the relationship between LIPs with a low, medium, and high level of competence to represent themselves, and their cases, which can be characterized as having a low, medium, and high level of complexity (by whomever and however defined). Figure 1 below is my attempt to graphically illustrate Assy’s proposal. It is based on the premises that (a) LIP competence and case complexity can be measured, (b) that these factors are obvious from the outset of the adjudicative process, and (c) that the level of complexity (or simplicity, if you will) remains constant throughout the litigation. Lawyers and judges know these are false assumptions, but are made here for discussion purposes. We see from the table that certain categories of cases would not require mandatory representation: those in which the LIP’s competence to self-represent is low, medium, or high, and case complexity is low; and, where the LIP’s competence is high and case complexity is low or at a medium level. Where case complexity is high, mandatory representation should be imposed on low and medium-competent LIPs. Figure. 1 View largeDownload slide Cases in which representation would be mandatory Figure. 1 View largeDownload slide Cases in which representation would be mandatory The difficulty, however, is that there will be cases of a highly-competent LIP who may be able to handle a high-complexity case (causing the “?” designation). How would a court identify such cases as ones requiring mandatory representation? Moreover, cases falling into the medium complexity level and brought (or defended) by low or medium-level competence LIPs are also going to be difficult to identify as requiring mandatory representation. Assy’s seemingly contradictory inclusions and exclusions of cases for which his proposal would apply, and the obvious need for much more specific guidelines for courts to be able to make the decision to impose (wanted or unwanted) counsel on low, medium, and high competence LIPs and their low, medium, and high levels of case complexity—not to mention the fluidity of case complexity during the progress of a case—makes the categorical application of the rule nearly impossible. No uniform application of the rule would be possible without specific definitions of LIP competence and case complexity that would govern its application, and, even if they could be devised, judges with different attitudes toward LIPs would interpret them differently. Interestingly, near the end of his book Assy moderates his approach to mandatory representation. He there suggests that mandatory representation “need not be applied in a categorical manner as it is in civil law countries. It could take the form of a discretionary case management tool, to which the court might resort in suitable circumstances.”86 He goes on to recognize that “wasteful conduct of LIPs” can be addressed by courts through costs orders, but quickly notes that impecunious LIPs may not be deterred by them since they can’t afford to pay them.87 In this particular discussion he continues his harsh overgeneralizations that LIPs litigate “with a high likelihood of failure,” that they engage in “protracted proceedings,” they are “likely not to comply with the rules,” and they “waste resources.” As noted earlier, his empirical data supporting such claims is thin, and, moreover, the same critique can be applied to many lawyers. VI. Discussion The recognition by the US Supreme Court of a right to a civil Gideon continues to be a pipe dream. A 2002 Report of the Task Force on Pro Se Litigation of the Conference of Chief Justices (of state supreme courts) made the following observation: Too many still maintain an unrealistic belief that the answer to access to justice is simply to provide more lawyers for low-income and moderate-income people. After more than a decade of struggles to increase lawyer participation in pro bono programs and funding for legal services, the evidence is clear that we have not come close to meeting the demand for affordable legal services. If we have a single-tier justice system, it is only because so many individuals lack the financial wherewithal to enter it at all.”88 As noted above, in Turner v. Rogers the US Supreme Court refused to find a right to civil legal representation in the due process clause. Aside from the possibility of finding counsel willing to provide limited-scope, or unbundled, legal services, this leaves LIPs with one option: self-representation. That may or may not result in any given case in undue delay, or increased costs for an adversary; there is no way to determine whether these outcomes will result. Comparative studies of the relative costs to prosecute or defend against cases involving an LIP versus two represented parties would obviously be useful. Even if we assume that LIPs litigating in courts without any instructional or pretrial programming are generally likely to cause some delay and increased litigation costs, that is the “cost of doing business” for our civil courts. The argument made by Assy (and the late Justices Burger and Blackmun, dissenting in Faretta)89—that permitting LIPs to proceed without counsel would result in an unfair trial—must be juxtaposed against another possible spectacle: that which would result in observing an LIP going to trial with unwanted counsel, and without appropriate assistance. It is certainly plausible that the reasonable persons on a jury would find the court’s refusal to assist the LIP, and the imposition of mandatory, but unwanted counsel, as a more serious spectacle that threatens public trust and confidence in our courts than permitting self-representation. It is not difficult to imagine an LIP complaining throughout a trial about unwanted counsel, and the jury’s wonderment as to why the court would condone such a situation, and not permit self-representation.90 A better solution that balances the LIP’s autonomy interests and the court’s interests in efficiency is for courts themselves to retain staff attorneys, standby counsel, lay court “navigators,” or other ancillary LIP advisors. These individuals would consult with LIPs on such matters as jurisdiction, service of process, identification and service upon proper defendants, the elements of the cause of action (or defense) the LIP intends to bring, pleading deficiencies, and trial practice, generally. Assy himself acknowledges that, subject to certain restrictions, permitting lay representation may be a good alternative to mandatory representation.91 In addition, the numerous LIP assistance programs enumerated above are transforming the LIP landscape by reducing both their drag on judicial administration, and the possibility of increased costs for represented parties. Mandatory representation for LIPs is, simply put, using a sledge hammer to kill an ant. It would eliminate the constitutionally-recognized right of personal autonomy to bring civil cases, thus denying LIPs access to justice. The problems arising from the potential lack of cooperation with unwanted counsel, as occurs in the American criminal appointed-counsel context, would negate any benefit to court efficiency, and would add unnecessary costs at trial and on appeal when LIPs raise ineffectiveness claims. Rabeea Assy’s book is impressively researched, persuasively argued, and quite thought-provoking. His proposal, if it could overcome the myriad of moral, constitutional, legal, and practical barriers enumerated above, would indeed provide benefits to some LIPs, but would deprive others of their autonomy and access-to-court rights. Implementation of such a proposal flies in the face of the US Supreme Court’s adamant position that there is no right to appointed counsel for indigents in civil cases. Thus, the right to a civil Gideon—if it existed—could not, under current American law, morph into the state’s right to foist unwanted counsel on those self-represented litigants who knowingly and intelligently waive their right to counsel. Even if he is correct in arguing that autonomy is not a valid philosophical justification for self-representation in the civil context, the right must necessarily be preserved to protect the fundamental right of access to justice for all. I wish to thank editors Ori Herstein and Alon Harel of JRLS for inviting me to this stimulating symposium. I also thank my colleague Dr. Vincent Samar of the Loyola Department of Philosophy for his valuable insights on the issue of autonomy and self-representation, from which I benefited greatly in writing this comment. Footnotes 1 Rabeea Assy, Injustice in Person: The Right to Self-Representation (2015). 2 “Litigants in person” is the term used here and in Commonwealth countries to refer to unrepresented parties. Most American courts refer to them as pro se (for himself, or in his own behalf) litigants, but courts in some Western American states (e.g. California and Arizona) use the term pro per litigants, short for in propria persona, or in one’s own proper person. 3 422 US 806 (1975). 4 Assy, supra note 1, at 3. 5Id. at 5. 6 The due process clause appears in both the US Constitution’s Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to states). Each amendment prohibits the government or any state from depriving any person of “life, liberty, or property without due process of law.” 7 Immanuel Kant, Metaphysical Foundation of Morals [1785], Third Section, in The Philosophy of Kant: Immanuel Kant’s Moral and Political Writings 211 (Carl J. Friedrich, ed.) (1993). 8 Joseph Raz, The Morality of Freedom 400 (1986). 9 John Stuart Mill, On Liberty [1859] (1988) (Gertrude Himmelfarb, Ed.), at 119. 10Id. at 141. 11Id. at 149. 12Id. 13Id. at 150. 14Id. at 152. 15Id. at 156. 16 Assy, supra note 1, at 155. 17 Self-representation’s increased costs to represented parties is not empirically substantiated, as discussed in sub-section III(A), infra. 18 Assy, supra note 1, at 139–42. 19Id. at 36. 20Id. at 38. 21Id. at 39. 22Id. at 41–42. 23 Never mind that the US Supreme Court is currently comprised of nine justices who are evenly divided between the strict-constructionist and the living-document perspectives of constitutional interpretation, with one “swing vote” (Justice Anthony Kennedy). 24See, e,g., Timothy Sandefur, Cornerstone of Liberty: Property Rights in 21st Centuryamerica (2006); Terry L. Anderson & Laura E. Huggins, Property Rights: A Practical Guide to Freedom and Prosperity (2003); Richard Pipes, Property and Freedom (1999); Bernard H. Siegan, Property and Freedom: The Constitution, The Courts, and Land-use Regulation (1997); James M. Buchanan, Property as a Guarantor of Liberty (1993); James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (1992); Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964) and Milton Friedman, Capitalism and Freedom (1962), all cited in D. Benjamin Barros, Property and Freedom, 4 N.Y.U. J. of L. & Liberty 36, 37 (2009), n. 1. 25 Assy, supra note 1, at 10, n.4. The studies he cites are all subject to various methodological criticisms. For example, the studies of landlord–tenant cases focus on cases “which were estimated to have reasonable prospects of success.” Id. It is unclear how the researchers made that determination, but the same characterization can be made of any case, except for those most obviously frivolous. Also, a higher success rate for represented parties is not necessarily a product of LIP incompetence, but may also be attributed to judges’ preference to hear cases involving the traditional procedure of lawyers advocating for their respective clients. These data have no relationship to the question of the extent to which LIPs cause court inefficiencies or higher costs. 26Id. at 24. 27Id. at 10, n. 4. 28See, e.g., Jefri Wood, Pro Se Case Management for Nonprisoner Civil Litigation (2016). 29Id. at 26. 30Id. at 35. 31Id. at 26–81. 32 See Jona Goldschmidt, Barry Mahoney, Harvey Solomon, & Joan Green, Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers (1998) (reporting results of surveys of state court judges and court managers, and describing programs to manage self-represented litigants). 33http://www.ncsc.org/Topics/Access-and-Fairness/Self-Representation/Resource-Guide.aspx (“One of the biggest challenges in the court system is the increasing number of self-represented litigants. As the number of self-represented litigants in civil cases continues to grow, courts are responding by improving access to justice and making courts more user-friendly.”). 34 These include including simplifying court forms, providing one-on-one assistance, developing guides, handbooks, and instructions on how to proceed, offering court-sponsored legal advice, developing court-based self-help centers, collaborating with libraries and legal services, and using Internet technologies to increase access. 35 Assy’s focus is on common law courts. He views courts in certain civil law countries as having more LIP-friendly procedures. He cites a small sample of the latter as having an ideal system, one which mandates representation for all litigants. See Assy, supra note 1, at 24, n. 53. 36 Jona Goldschmidt, The Pro Se Litigant’s Struggle for Access to Justice: Meeting the Challenge of Bench and Bar Resistance, 40 Fam. Ct. Rev. 36, 46 (2002) (“I believe pro se litigants are entitled as a matter of due process to know the elements of commonly brought causes of action and defenses thereto. It is not enough to instruct a pro se regarding the method of introducing one's evidence if the litigant does not know the ‘rules of the game’ with respect to what it is he or she is required to prove.”). Cf. Jona Goldschmidt, Ensuring Fairness or Just Cluttering Up the Colloquy? Toward Recognition of Pro Se Defendants' Right to be Informed of Available Defenses, 61 Drake L Rev 101–90 (2013) (arguing that fairness requires that courts inform self-represented criminal defendants of legally-recognized defenses, and their respective elements). 37 Assy, supra note 1 at 111–12. 38 Assy erroneously assumes judges will be engaged in the various things that assist LIPs, which will jeopardize their impartiality. Id. at 114. Ultimately, he argues that “their assistance and explanations are too general to be substantially helpful.” Id. at 115. Again, this ignores the growing number of LIP assistance programs described. Aside from staff or volunteer lawyers, another option is for another judge to be assigned to handle pretrial conferences to prepare the LIP for trial, thus avoiding the trial judge’s appearance of bias towards the LIP. A similar strategy is used as an ADR mechanism by some courts which designate a certain judge as the “settlement judge,” whose sole role is to facilitate settlement of cases. This approach avoids the ethical and impartiality issues were trial judges to act in that role. See Jona Goldschmidt and Lisa Milord, Judcial Settlement Ethics: Judges’ Guide 11 (1996) (“The degree of forcefulness used by the judge to encourage settlement, therefore, is … inexorably linked to the trial judge’s duty to remain impartial. For this reason it is considered preferable by many that jurisdictions, where feasible, separate the settlement and trial functions of the judge.”). 39Id. at 47 (emphasis added). 40 As summarized in Indiana v. Edwards, 554 U.S. 164, 170 (2008) (authorizing courts to impose counsel for mentally ill LIPs): The Court [in Faretta] implied that right from: (1) a “nearly universal conviction,” made manifest in state law, that “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so,”… ; (2) Sixth Amendment language granting rights to the “accused”; (3) Sixth Amendment structure indicating that the rights it sets forth, related to the “fair administration of American justice,” are “persona[l]” to the accused, … ; (4) the absence of historical examples of forced representation … ; and (5) “‘respect for the individual,’ ” … (quoting Illinois v. Allen, … a knowing and intelligent waiver of counsel “must be honored out of ‘that respect for the individual which is the lifeblood of the law’ ”). (citations omitted) (emphasis added). 41 Cornell Law School, Legal Information Institute, Substantive Due Process, https://www.law.cornell.edu/wex/substantive_due_process. 42 “[I]t is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is ‘due’ would be unconstitutional.”). Id., https://www.law.cornell.edu/wex/due_process. 43 Matthews v. Eldridge, 424 US 319, 335 (1976). 44 This concept is akin to Professor Frank E. A. Sanders’ almost forgotten proposal for a Multi-Door Courthouse, in which he advocated that the “forum should fit the fuss.” See generally, Larry Ray & Anne L. Clare, The Multi-Door Courthouse Idea: Building the Courthouse of the Future … Today, 1 Ohio St. J. Disp. Resol. 7 (1985). 45See infra, section V, at 15–20. 46 The question of whether LIPs can be mandated to avail themselves of these programs is beyond the scope of this comment. But, contemporary court-annexed, mandatory mediation and arbitration programs provide a strong precedent for such a requirement as a prerequisite to going to trial. 47 Referring to Gideon v. Wainright, 372 US 335 (1963) (holding that the Fourteenth Amendment requires states to appoint counsel for indigent defendants in felony cases). 48 564 US 431 (2011). The court had earlier rejected the claim in Lassiter v. Department of Social Servs. of Durham Cty., 452 US 18 (1981), involving an action to terminate respondents’ parental rights. 49 These were (i) the fact that the critical issue in the case was the “sufficiently straightforward” question of respondent’s financial ability to pay child support, (ii) appointment of counsel for their current or former husband respondent would cause an unfair “asymmetry of representation” because the single mother petitioners are normally unrepresented, and (iii) substitute procedural safeguards existed “which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty,” referring to notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding, use of a form (or the equivalent) to elicit relevant financial information; an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and an express finding by the court that the defendant has the ability to pay. 452 US at 447. 50 564 US at 447 (citations omitted) (emphasis added). 51 “These are rights which the Court recognizes as having a value … essential to individual liberty in our society … [F]undamental rights analysis is simply no more than the modern recognition of … natural law concepts.” Ronald D. Rotunda & John E. Nowak, 2 Treatise on Constitutional Law § 15.7 (2012). These natural law concepts are also embodied in the phrase “natural justice,” in British law, Russell v. Duke of Norfolk, [1949] 65 T.L.R. 225, 231 (natural justice refers to the requirement that there must be a “full and fair opportunity to state one's case”), and Canadian law, In Re Matheson & MacMillan, Ltd. and Minister of Finance, et al., available at [1986] A.C.W.S.J. LEXIS 31504, ¶ 43 (LexisNexis Canada) (finding that the definition of natural justice, like due process, is fluid, and depends upon the circumstances of each case and the subject matter under consideration; the definition “appears to be as elusive as the identity of the Reasonable Man”), and the “remedies based on justice” under Israeli law. Hon. Ammon Straschnov, The Judicial System in Israel, 34 Tulsa L. Rev. 527, 531 (1999). 52 “[T]he Justices of the Supreme Court will apply strict forms of review under the due process clauses and equal protection clause to any governmental actions which limit the exercise of ‘fundamental’ constitutional rights.” Rotunda & Nowak, 2 Treatise on Const. L. § 15.7. 53 The Supreme Court has found other rights to be fundamental, even in the absence of an express right in the text of the Constitution. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (right to marital privacy); Youngberg v. Romeo, 457 U.S. 307 (1982) (right to reasonably safe conditions of confinement in mental hospital). 54 Assy, supra note 1, at 15. 55Id. at 17. 56Id. 57Id. at 19. 58Id. at 21. 59See supra notes 18–24. 60Id. at 21, n. 41. 61Id. at 21. 62Id. at 19 (“procedural rights are conferred upon them [parties]as legal entities, and this does not necessarily entail a further right to conduct litigation in person. As legal entities, litigants can still be accorded full access to court when they are required to exercise this right through lawyers.”). 63 Jona Goldschmidt, et al., Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers 19–24 (1998). 64 Corfield v. Coryell, 6 F.Cas. 546, 551-552, No. 3, 230 (1823) (privileges and immunities clause of the Constitution refers to rights which belong “of right” to “citizens of all free governments,” including the right “to institute and maintain actions of any kind in the courts of the state”). 65 Chambers v. Baltimore & Ohio Ry. Co., 207 US 142 (1907) (“The right to sue and defend in the courts is the alternative of force,” “the right conservative of all other rights,” “the foundation of an orderly government,” “one of the highest and most essential privileges of citizenship,” and “a right not to be denied by states against those of other states,” thus “protected by the federal Constitution”). 66 The right of access to courts under a due process theory is traced to two lines of cases, one involving prisoners’ rights and another establishing the rights of nonprisoner litigants. For prisoners, see Johnson v. Avery, 393 US 483 (1969) (striking down prison regulation prohibiting inmates from assisting each other to prepare habeas corpus petitions and other legal action); Wolff v. McDonnell, 418 US 539, 577-580 (1974) (extending Johnson to civil rights complaints); Ross v. Moffitt, 417 US 600, 616 (1974) (criminal) (“meaningful access” to courts requires states to “assure the indigent defendant an adequate opportunity to present his claims fairly”); and Smith v. Bounds, 430 US 817, 828 (1977) (“[T]he fundamental constitutional right of access to courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law, such as paralegals or law students.”). For nonprisoners, see Boddie v. Connecticut, 401 US 371 (1971) (striking down on due process grounds a statute requiring payment of filing fees for divorce petitions that made no accommodation for indigent parties, and thus denying them access to courts); Tennessee v. Lane, 541 U.S. 509, 533-34 (2004) (recognizing the “fundamental right of access to the courts”). 67 Magna Carta, Art. 40 (1215), http://www.nationalcenter.org/MagnaCarta.html. 68 Simon F. Jesup, The Law of the Federal and State Constitutions of the United States, with an Historical Study of their Principles, a Chronological Table of English Social Legislation, and a Comparative Digest of the Constitutions of the Forty-six States 171 (1908). 69 28 USC. § 452 (“All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders.”). 70 Assy, supra note 1, at 1. 71 Debra C. Weiss, Trump budget eliminates Legal Services Corp. funding, ABA Journal (March 16, 2017), http://www.abajournal.com/news/article/trump_budget_eliminates_funding_for_legal_services_corp/. 72 Assy, supra note 1, at 119–23. 73Id. at 122. This is similar to the process I have advocated for LIP litigation, see Goldschmidt, supra note 32, at 48–54, which Assy (Id. at 155–56) and others (Drew Swank, In Defense of Rules and Roles: the Need to Curb Extreme Forms of Pro Se Assistance and Accommodation in Litigation, 54 Am. U. L. Rev. 1537, 1539 (2005), have attacked as an unfair process. 74 Assy, supra note 1, at 123. 75Id. at 125. 76 There are a few insurance companies that offer limited coverage for legal needs (sometimes as an employment benefit), but these are not well known, and underutilized. See, e.g., LegalEASE, https://www.nationwide.com/individual-legal-plans.jsp; LegalShield, https://www.legalshield.com/personal/plans-and-pricing; ARAG Network Attorney, https://www.araglegal.com/individuals. 77 Assy, supra note 1, at 125. 78 Goldfarb v. Virginia State Bar, 95 S. Ct. 2004 (1975) (minimum state bar fee schedule constitutes price-fixing in violation of Sherman Anti-Trust Act). 79 Assy, supra note 1, at 124. 80Id. 81See, e.g., Smith v. Grams, 565 F.3d 1037, 1045 (7th Cir. 2009) (after discharging two attorneys, defendant “inquired about his options, to which the court responded, ‘Well, … you can represent yourself.”); US v. Daniel, 962 F. 2d 100, 101 (1st Cir. 1992) (“After asking appellant whether he wanted Padilla to continue with the hearing and receiving the response, “[n]ot quite, sir,” the judge said to appellant, “Well, then you represent yourself.”). 82 Assy, supra note 1, at 5. 83Id. at 6. 84Id. One would assume that cases involving constitutional law, judicial review (presumably referring to appeals), and cases against corporations would be included as those for which the author would mandate representation. Curiously, the representation obligation is instead limited to cases involving contracts, wills, and torts, which to many would appear to be much less complex than the exempted categories. 85Id. (emphasis in original). 86Id. at 197. 87Id. at 197–98. 88 Conference of Chief Justices, Report of the Task Force on Pro Se Litigation (2002), available at http://ccj.ncsc.org/Resources/Reports.aspx. 89 “True freedom of choice and society's interest in seeing that justice is achieved can be vindicated only if the trial court retains discretion to reject any attempted waiver of counsel and insist that the accused be tried according to the Constitution. This discretion is as critical an element of basic fairness as a trial judge's discretion to decline to accept a plea of guilty.” 422 U.S. at 840 (Burger, J., dissenting); “If there is any truth to the old proverb that ‘one who is his own lawyer has a fool for a client,’ the Court by its opinion today now bestows a constitutional right on one to make a fool of himself.” Id. at 852 (Blackmun, J., dissenting). 90Cf. Jona Goldschmidt, Autonomy and “Gray-Area” Pro Se Defendants: Ensuring Competence to GuaranteeFreedom, 6 Nw. J. of Law & Social Pol’y 130–77 (2011) (arguing that courts improperly “use”—in a Kantian sense—mentally ill pro se defendants when they mandate counsel in order to avoid a “spectacle,” where other alternative forms of representation and assistance are available). The reader may recall the case of Bobby Seale, one of the eight organizers of the 1968 Democratic Convention anti-war protests in Chicago, who was tried for conspiracy to cross state lines to incite a riot. The federal trial judge, Julius Hoffman, forced unwanted counsel upon him over Seale’s repeated objections, and insistence on his right to self-representation, leading the judge to order that he be bound and gagged, and eventually removed from the courtroom. See U.S. v. Seale, 461 F. 2d 345 (7th Cir. 1972) (reversing contempt orders and sanctions imposed by the trial judge). 91 Assy, supra note 1, at 132. © The Author(s) 2018. Published by Oxford University Press and the Hebrew University of Jerusalem. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

Journal

Jerusalem Review of Legal StudiesOxford University Press

Published: Jun 1, 2018

There are no references for this article.

You’re reading a free preview. Subscribe to read the entire article.


DeepDyve is your
personal research library

It’s your single place to instantly
discover and read the research
that matters to you.

Enjoy affordable access to
over 18 million articles from more than
15,000 peer-reviewed journals.

All for just $49/month

Explore the DeepDyve Library

Search

Query the DeepDyve database, plus search all of PubMed and Google Scholar seamlessly

Organize

Save any article or search result from DeepDyve, PubMed, and Google Scholar... all in one place.

Access

Get unlimited, online access to over 18 million full-text articles from more than 15,000 scientific journals.

Your journals are on DeepDyve

Read from thousands of the leading scholarly journals from SpringerNature, Elsevier, Wiley-Blackwell, Oxford University Press and more.

All the latest content is available, no embargo periods.

See the journals in your area

DeepDyve

Freelancer

DeepDyve

Pro

Price

FREE

$49/month
$360/year

Save searches from
Google Scholar,
PubMed

Create lists to
organize your research

Export lists, citations

Read DeepDyve articles

Abstract access only

Unlimited access to over
18 million full-text articles

Print

20 pages / month

PDF Discount

20% off