Equality before the Law and the Social Contract: When Will the United States Finally Guarantee Its People the Equality before the Law the Social Contract Demands?
Johnson, Earl, Jr., Fordham Urban Law Journal
Introduction I. Equality Before the Law as a Precept of the Social Contract II. Constitutional Enforcement of Equality Before the Law III. What the Foreign Experience Suggests About Defining the Scope of a "Right to Equal Justice" in Civil Cases IV. What Foreign Experience Suggests About the Design of a System Implementing a Right to Equal Justice A. Eligibility Criteria B. Program Governance and Administrative Arrangements C. Delivery Systems V. Drafting a Generic State Statute Implementing a Right to Equal Justice Which Draws on Foreign Laws and Experiences VI. What Foreign--and Domestic--Experience Suggest About the Cost of Implementing a Right to Equal Justice A. Comparative Expenditures on Civil Legal Aid B. Expenditures on Civil Legal Aid Compared with Other Public Expenditures Benefiting the Poor VII. If and When and Why It Hasn't Happened Already Appendix
My assignment in this symposium's dialogue about the potential of a right to counsel in civil cases in the United States is to supply a foreign perspective--to suggest what, if anything, the United States might have to learn from what has happened abroad as to this right. In one sense, it would be possible to merely provide a brief overview in a single sentence, and end the article. That sentence would read: Most European and several countries elsewhere in the worm have recognized a right to counsel in many or most civil cases for as long as decades or even centuries--and many of those countries are willing to spend, proportionately, anywhere from three to twelve times as much of their national income as the U.S. currently does on the provision of counsel to their lower income populations in civil cases.
But while that sentence might be an adequate headline and for some readers perhaps a big surprise, it fails to supply the essential details that make the foreign experience so important in the United States. It does not suggest why American courts should pay attention to what has happened in constitutional law abroad. It also does not explain why American legislators should care about how their foreign compatriots have structured the right in their countries or the problems they face and how they have tried to address those problems. Finally, it does not suggest what an equal rights statute might look like if legislators tried to apply those lessons in the context of U.S. civil litigation.
I have been writing about foreign legal aid programs for over three decades, starting with a collaboration with Professors Mauro Cappelletti and James Gordley on the first book-length comparative study of civil legal aid as it evolved in Europe and North America. (1) Over the years, I have written another half dozen articles on the subject. (2) Thus, I don't approach this subject with a clean slate, and not everything in this Article will be brand new. Rather, what follows gathers together themes and information from prior writings and updates. In some instances, it amplifies both the information and the themes, then applies some of the lessons of the foreign experiences to the design of a draft statute that implements a right to equal justice, and therefore a right to counsel when one is needed to satisfy that guarantee.
This Article begins with a discussion of the theoretical underpinnings of a right to equality before the law in civil cases, and how that theory found its way into statutes and constitutional provisions in both Europe and the United States. This is followed by an examination of how courts on the two continents and elsewhere in the world have interpreted the constitutional provisions that emanated from this theory and why those decisions are relevant to courts in the United States. The Article then describes how nations that have the right as a matter of statutory or constitutional law have implemented it. This leads to …
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Publication information: Article title: Equality before the Law and the Social Contract: When Will the United States Finally Guarantee Its People the Equality before the Law the Social Contract Demands?. Contributors: Johnson, Earl, Jr. - Author. Journal title: Fordham Urban Law Journal. Volume: 37. Issue: 1 Publication date: February 2010. Page number: 157+. © 2009 Fordham Urban Law Journal. COPYRIGHT 2010 Gale Group.