Upcoming Conference: “State of the South Conference” Feb. 22-23, Georgia State University College of Law. From the conference website:
Join the Center for Access to Justice from 6 to 8 p.m. Thursday, Feb. 22, in the Catherine P. Henson Atrium for an opening reception featuring food from Kevin Gillespie’s Red Beard Restaurants.
On Friday, Feb. 23, the center will hold its inaugural State of the South Conference at the College of Law in partnership with the ABA’s Standing Committee on Legal Aid and Indigent Defendants. This year’s conference will explore the intersection between the civil and criminal justice systems and how practitioners operating in each system approach that overlap.
Timothy Williams, Courts Sidestep the Law, and South Carolina’s Poor Go to Jail, New York Time, October 12, 2017. [“One homeless man has been arrested or cited 270 time on the same charge…”]
Nikita Stewart, Lawyers for Child Welfare and Legal Aid Under Scrutiny for Facebook Posts, New York Times, August, 30, 2017. [Facebook posts pose expectation and standard of conduct questions for Legal Aid workers.]
Karen Tokarz and Zachary Schmook, Law School Clinic and Community Legal Services Providers Collaborate to Advance the Remedy of Implied Warranty of Habitability in Missouri, 53 Wash. U. J. L. & Pol’y 169 (2017). Abstract Below:
This Essay discusses the economic and public policy concerns regarding the implied warrant of habitability law and the ability of tenants in the state of Missouri can raise effective defenses to rent and possession/eviction actions. The authors, Tokarz and Schmook, director and supervising attorney, respectively, of Washington University’s Civil Rights and Community Justice Clinic, evaluate these issues in light of Kohner Props., Inc. v. Johnson, which currently awaits a decision from the Missouri Supreme Court. Tokarz and Schmook use statistical analysis to identify recent trends in favorable results for landlords in disputes with tenants and stress the effects the Missouri Supreme Court’s decision in Kohner could have in future cases involving tenant rights.
Legal Services Corporation,”The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans“, prepared by NORC at the University of Chicago for Legal Services Corporation. Washington, DC, 2017.
Article: Max Raskin, The Raisins of Wrath: The Constitutionality of Interest on Lawyers’ Trust Accounts Following Horne v. USDA, 10 NYU J. L. & Liberty 857 (2016).
Interest on lawyers’ trust accounts (IOLTA) are programs that require lawyers to remit their some of their clients’ interest to the state. This money is used to fund legal aid programs. The Supreme Court, in a five-to-four 2003 decision in Brown v. Legal Foundation of Washington, upheld such a program against a Fifth Amendment takings challenge. This note argues that in light of subsequent Supreme Court jurisprudence, the Court’s reasoning in Brown is no longer tenable. The culmination of the post-Brown jurisprudence is Horne v. United States Department of Agriculture. Although the accounts are creations of the state, the benefits that flow from them cannot be unconstitutionally conditioned. Because no linkage can be drawn between providing free legal aid and the provision of IOLTA accounts, the interest remission requirement is unconstitutional.
Article: Kathryn A. Sabbeth, Housing Defense as the New Gideon, 43 Harv. J. L. & Gender (forthcoming).
New York City is poised to become the first jurisdiction in the United States to guarantee a right to counsel for poor people at risk of losing their homes. Although millions of Americans are evicted every year, until recently, scholars and policymakers largely ignored the eviction phenomenon. New research demonstrates the frequency of eviction and the breadth of its economic and social impacts on individuals, their families, and society at large. Relying on studies showing that housing defense lawyers decrease eviction rates and promote positive social outcomes, NYC legislators concluded that a right to housing defense counsel would be both morally right and cost-effective. They introduced Intro 214-A to establish such a right and, in February 2017, the NYC mayor announced that his administration will provide the funds the bill needs to move forward. This Article is the first to analyze this ground-breaking legislation.
The right to appointment of criminal defense counsel recognized in Gideon v. Wainwright grew out of the Supreme Court’s response to the Civil Rights Movement. Using NYC’s housing defense bill as a case study, this Article identifies three ways in which the civil right to counsel has the potential to build on the Gideon model and expand it for today. First, in targeting the secondary effects of the eviction phenomenon, the NYC legislature moves beyond procedure to promote substantive outcomes. Second, its focus on housing defense recognizes a set of concerns that disproportionately impact Black women, thus building on the racial equality aims underlying Gideon and adding a move toward gender equality. Third, whereas the criminal defense model defends individuals against state power, the new bill applies to tenants of public and private landlords, thus checking abuses of private power.
The Article also addresses the dynamics of defensive lawyering, a feature of both the old and the new models of appointment of counsel. Defensive lawyering suffers from systemic limitations and fails to challenge social problems that could be addressed through affirmative suits—such as discrimination, harassment, and unsafe conditions. The availability of counterclaims in civil litigation, however, makes the civil defensive position more flexible than its criminal cousin, and may overcome some of these limits. The Article concludes that the new right to counsel holds significant promise.