Marquette University Law School Faculty Blog

California Moves Towards Civil Right to Counsel

Post author:Rebecca K. Blemberg
Post published:October 13, 2009
Post category:Judges & Judicial Process

Today California became the first state to establish a pilot program to provide appointed counsel to low-income people in civil legal matters. The program is scheduled to be in effect from July 1, 2011, to July 1, 2017. Low -income people will receive appointed counsel for assistance in critical civil legal matters in areas like disability law, family law, and housing law. California will pay for the program by redirecting a $10 court fee increase that had already been approved.

I’m excited by this development and wish that more states, including Wisconsin, would establish similar programs. Too many poor people with critical legal needs navigate a complicated system without legal assistance. When parties with critical legal needs are represented, the system is fairer and more efficient.

Reinert on the Actual Success of Bivens Claims and Its Implications for the Constitutional Rights of Federal Employees

Post author:Paul M. Secunda
Post published:October 13, 2009
Post category:Constitutional Interpretation Federal Civil Litigation Labor & Employment Law

Alex Reinert (Cardozo) has posted on SSRN his forthcoming article in the Stanford Law Review: Measuring the Success of Bivens Litigation and its Consequences for the Individual Liability Model.

Here’s the abstract:

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called “Bivens” cause of action — initially extended to other constitutional provisions and then sharply curtailed over the past two decades — has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens — one that has been repeated in different venues for thirty years — is that the Court’s individual liability model, in which the offending officer is personally liable in damages, should be abandoned in favor of a governmental liability model akin to respondeat superior liability.

In Defense of Negative Spaces

Post author:Richard M. Esenberg
Post published:October 13, 2009
Post category:Constitutional Interpretation

Ed Fallone’s post last week on finding negative space in the Constitution got me to thinking about the uses – and dangers – of metaphors in legal thinking. What does it mean for there to be “negative space” in the Constitution. We could think of it, as Ed does, like the open areas in a soccer match (or, for that matter, a football game). Creating negative space opens possibilities. Drawing a defender away creates opportunities.

Ed’s post plays off the fact that the United States Constitution, unlike the Wisconsin Constitution, creates a government of enumerated – and not plenary – powers. (This is one of the reasons that the state constitution looks rather different than the federal charter.) Ed sees the negative spaces as areas of opporunity, but emphasizes filling those “empty spaces” where the Constitution has not created federal authority with … federal authority. The negative space is for government – at least where exigency is thought to be served by the expansion of state authority.

It will surprise precisely no one that I see it differently. In fact, to continue our soccer metaphor, improperly invading them (as the image at the top of this post illustrates) leaves us offside.