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O'Rourke on the Political Economy of Criminal Procedure

By Lawrence Solum

Anthony O'Rourke (Columbia University - Law School) has posted The Political Economy of Criminal Procedure Litigation (Georgia Law Review, Vol. 44, 2010) on SSRN. Here is the abstract:

Criminal procedure has undergone several well documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution?s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation - specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants? cases are appealed to the United States Supreme Court - has influenced these shifts. By constructing a theoretical framework for understanding the political economy of criminal litigation, this Article shows how the rise of indigent defense organizations has allowed the Supreme Court a greater degree of freedom in criminal procedure than in other areas of constitutional law to select cases that frame the constitutional issues at stake in ways that conform to the ideological preferences of the Court?s Justices.

This framework complicates the traditional narrative of constitutional criminal procedure?s doctrinal shifts, in which the liberal innovations of the Warren Court were simply eclipsed by the decisions of later, more conservative Courts. It shows that the relative conservatism of contemporary criminal procedure doctrine can, paradoxically, be traced to the Warren Court?s creation of a fully incorporated right to counsel in Gideon v. Wainwright, which caused a proliferation in the number of organizations available to represent poor defendants, and thereby weakened the power such organizations once had to shape the Supreme Court?s criminal procedure agenda.

This Article thus exposes economic and institutional conditions underpinning contemporary criminal procedure doctrine which few scholars have explored. By shedding light on these conditions, the Article reveals possible solutions for reforming them in ways that will give litigators more control over the Court?s criminal procedure agenda.

Full post as published by Legal Theory Blog on April 28, 2010 (boomark / email).