Wednesday, April 24, 2013
Justin F. Marceau (University of Denver Sturm College of Law) has posted Gideon's Shadow (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:
The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elaborating on this paradoxical aspect of the Gideon right – that the very prominence of the right tends to dilute other rights, or at least justify limitations on non-Gideon rights – this essay analyzes the judicial and scholarly practice of employing the counsel right as a cudgel to curb other rights.