Civil Rights and Discrimination Commons^™

“Fundamental Fairness”: Finding A Civil Right To Counsel In International Human Rights Law, Meredith Elliott Hollman

University of Richmond Law Review

Every other Western democracy now recognizes a right to counsel in at least some kinds of civil cases, typically those involving basic human rights. The World Justice Project’s 2021 Rule of Law Index ranked the United States 126th of 139 countries for “People Can Access and Afford Civil Justice.” Within its regional and income categories, the United States was dead last. The United Nations and other international treaty bodies have urged the United States to improve access to justice by providing civil legal aid. How did we fall behind, and what can we learn from the rest of the world? …

“Fundamental Fairness”: Finding A Civil Right To Counsel In International Human Rights Law, Meredith Elliot Hollman

Law Student Publications

Every other Western democracy now recognizes a right to counsel in at least some kinds of civil cases, typically those involving basic human rights. The World Justice Project’s 2021 Rule of Law Index ranked the United States 126th of 139 countries for “People Can Access and Afford Civil Justice.” Within its regional and income categories, the United States was dead last. The United Nations and other international treaty bodies have urged the United States to improve access to justice by providing civil legal aid. How did we fall behind, and what can we learn from the rest of the world? …

The Ripple Effects Of Gideon: Recognizing The Human Right To Counsel In Civil Adversarial Proceedings, Jonathan K. Stubbs

Law Faculty Publications

Procedural fairness and equal protection were the core of Gideon’s reasoning for a right to counsel for indigent criminal defendants. Under the same constitutional values, there should be a right to legal assistance of counsel for indigent civil litigants, especially in adversarial proceedings. This Article outlines the constitutional basis for a civil right to counsel. Further, it stresses the need for legislation to address the massive shortfall in legal representation available to indigent persons in the United States. Recognition of civil Gideon as part of the Constitution’s promise of justice accommodates a moral revolution. It exemplifies a shift in …

The People's Lawyer: The Role Of Attorney General In The Twenty-First Century, Mark J. Herring

University of Richmond Law Review

For the last five years, it has been my privilege to serve the people as their attorney general. The origin of the position of attorney general can be traced back centuries, but in a world that has become more interconnected, complex, and fast-paced, what does the role of a state attorney general entail in the twenty-first century and beyond? Is the proper role as a diligent but reactive defender of statutes and state agencies, or is there a deeper responsibility that calls for a more proactive and engaged use of its tools and authority? I have found that the job …

Why Insurance Contracts Might Be The Trick To Police Reform, John F. Preis

Law Faculty Publications

How do lawsuits deter misconduct? That is an issue that Professor Joanna Schwartz has written about before, and her latest article on the topic, How Governments Pay: Lawsuits, Budgets and Police Reform, could not be more timely. Over the past year, our county has witnessed dramatic instances of police abuse and the public is understandably demanding reform. Schwartz’s terrific article explains why civil rights actions may fail to instigate reform, and suggests how insurance contracts, of all things, can play a role in fixing this problem.

Due Process In Death Penalty Commutations: Life, Liberty, And The Pursuit Of Clemency, Daniel T. Kobil

University of Richmond Law Review

The idea of the last-minute reprieve granted by a distant, unknowable dispenser of mercy to a man condemned to death has a powerful hold on our imaginations. Fyodor Dostoevsky's eleventh hour pardon by the czar in many ways shaped his literary career. The scene of the haunted Death Row prisoner who awaits word from the governor as a ticking clock punctuates his final hours is a stock vignette of Hollywood crime films. Anyone who has ever seized on the slimmest hope, whose fate has been committed to the hands of another - virtually all of us - can identify with …

Rule Revision Roundelay, Carl W. Tobias

Law Faculty Publications

A critique of the proposed revision of F.R.C.P. Rule 11.

Civil Rights Plaintiffs And The Proposed Revision Of Rule 11, Carl W. Tobias

Law Faculty Publications

The 1983 amendment of Federal Rule of Civil Procedure 11 has been the most controversial revision of the Federal Rules in their fifty-five-year history, and Rule l l's implementation has been most controversial in civil rights cases. Rule ll's application has disadvantaged civil rights plaintiffs more than any other category of civil litigant. Courts have found civil rights plaintiffs in violation of Rule 11 at a higher rate than other types of plaintiffs and have imposed substantial sanctions on them. Civil rights plaintiffs have been required to participate in expensive, unnecessary satellite litigation involving this provision. Indeed, a new study …

Civil Rights Procedural Problems, Carl W. Tobias

Law Faculty Publications

Congress passed the Civil Rights Act of 1991 primarily to modify numerous Supreme Court opinions of the 1988 Term that jeopardized the rights of minorities and women. Particularly striking about those Supreme Court cases was the number which involved procedural questions and process values. These included the timing of litigation, both when employment discrimination victims must commence actions and when non-parties can reopen civil rights cases resolved through consent decrees; litigant responsibility for the expense of lawsuits; and proof requirements.

Most of the procedural developments in civil rights and employment discrimination litigation of the 1988 Term, however, were only recent …

Civil Rights Conundrum, Carl W. Tobias

Law Faculty Publications

As a case study of the impediments imposed by the revised F.R.C.P. Rule 11 in civil rights litigation, Professor Tobias relates the story of the Robeson County, N.C. prosecution of Eddie Hatcher and Timothy Jacobs, their subsequent civil rights action, and the ensuing Rule 11 sanctions imposed upon their counsel, as reported in In re Kunstler, 914 F.2d 505 (4th Cir. 1990).

Certification And Civil Rights, Carl W. Tobias

Law Faculty Publications

In this 1991 article, Carl Tobias responds to Professor Arthur Miller's suggestion that Federal Rule of Civil Procedure 11 should not be prematurely revised.

"Professor Miller's admonitions may convince some observers, especially those authorized to propose revisions in, or to amend, the Rule that there is little wrong with Rule 11's application and that the federal judiciary simply needs a few more years to refine the implementation of this new concept. Numerous problems, however, remain substantial and some may be intrinsic or even irremediable, while certain litigants, especially civil rights plaintiffs, cannot afford to wait. I trust that Professor Miller's …

Rule 11 Recalibrated In Civil Rights Cases, Carl W. Tobias

Law Faculty Publications

The United States Supreme Court promulgated the 1983 amendments to the Federal Rules of Civil Procedure out of growing concern about abuse of the civil litigation process. The most controversial aspect of the implementation of these revisions has been judicial enforcement of amended Rule 11 (the Rule) in ways that disadvantage or "chill" civil rights plaintiffs and attorneys. As the federal judiciary enters its eighth year of implementing the Rule, courts apparently have improved their application of it by becoming more solicitous of the needs of civil rights plaintiffs and their counsel, in recognition of the important social function that …

Rule 11 And Civil Rights Litigation, Carl W. Tobias

Law Faculty Publications

The recent amendment of rule 11 may well have engendered more controversy than any other revision since the Federal Rules of Civil Procedure were first promulgated one-half century ago. The new version essentially requires that judges impose sanctions on lawyers and parties who fail to conduct reasonable inquiries before filing court papers. The amendment's adoption was prompted by increasing concern about abuse of the litigation process and about the "litigation explosion" -the perception that unprecedented numbers of civil cases were being filed and that too many lacked merit. Proponents have hailed the revised rule as the savior of the civil …

Miranda V. Arizona: The Emerging Pattern, Evelyn G. Skaltsounis

University of Richmond Law Review

In Miranda v. Arizona, the United States Supreme Court set forth a series of specific guidelines to determine the admissibility at trial of statements elicited during police interrogation of a criminal suspect. Since 1971, the Burger Court has whittled away at the mandates of Miranda. It is possible that one major factor underlies this erosion process: the very frustrating reality that, in many situations, an obviously guilty party is allowed to go free because "the constable has blundered."