Friday, April 4, 2008

Alfieri on Ely in Gideon v. Wainwright

Gideon in White/Gideon in Black: Race and Identity in Lawyering by Anthony Victor Alfieri, University of Miami School of Law, explores the role of legal icon John Hart Ely in the landmark case Gideon v. Wainwright, and the impact of this on Ely himself. The essay is forthcoming in the Yale Law Journal. Here's the abstract:
This essay endeavors to show that the politics of community-based legal action is a remedy too often out of the reach of liberal lawyers, even when their springboard is the work of John Hart Ely in Gideon v. Wainwright. Part I describes the history of Gideon v. Wainwright, documenting Gideon's personal background and the procedural contours of the litigation. It chronicles Ely's participation in the litigation and its continuing hold on his legal imagination. Part II uncovers the jurisprudential roots of Ely's vision of lawyering in a legal process conception of political access rights and minority equality rights developed through his writings on civil rights, constitutional law, and criminal procedure. It explores how Ely's process vision was enlarged by the civil rights movement and at the same time tempered by separation of powers considerations of role competence, institutional function, and political legitimacy. Part III exposes the legal process underpinnings of client-centered lawyering models erected in defense of the unrepresented. It demonstrates that these liberal-lawyering models of representation in the fields of poverty law and criminal justice focus on adversarial rights and material outcomes at the expense of democratic empowerment and minority collaboration. Part IV examines Ely's work for lessons of clinical legal education, criminal defense practice, and poverty law advocacy in impoverished communities of color. It seeks to discern in Ely's work a core set of democratic norms and narratives of political access and minority equality generalizable to multicultural clients and communities. Further, it sketches community-centered guidelines for lawyers laboring to advance the legal, political, and economic interests of unrepresented individuals and groups.

2 comments:

Shag from Brookline said...

Back in the early/mid 1970s John moved into the home to the rear of ours. My wife and I were invited to a party there that included other conlaw professors (including a young Henry Monaghan at nearby BU Law). It was a very pleasant time especially near the end when there were just a few of us drinking some good wine and talking law. I was in private practice and mentioned Thomas Reed Powell, my conlaw professor back in the fall of 1952 so that I could get into the flow of the discussion.

We invited John and his lovely wife for drinks a short time later. As the evening progressed, we started talking about music, especially jazz, when John said he played the saxophone. I brought out a C-melody saxophone that a client had given me and John demonstrated that he had not lost him embrochure. That was quite a long and enjoyable evening.

John and his family, including their St. Bernard, left after what seemed only a year or so. I followed his career thereafter and was shocked by his early demise.

I think of him every once in a while, especially now with the extensive discourses on originalism versus living constitutionalism clogging the Internet. What might John have contributed to the discussions with his wisdom, charm and wit? Maybe I'll read this article on John and listen at the same time to the late Illinois Jacquet on tenor saxophone.

Mary L. Dudziak said...

Thank you for posting this (as well as for your other welcome contributions to the Legal History Blog). I never had the opportunity to meet John Hart Ely, but I remember my excitement in encountering his book, Democracy and Distrust, when I was in law school. It remains essential reading for anyone interested in constitutionalism. Here's a link: http://www.amazon.com/Democracy-Distrust-Judicial-Harvard-Paperbacks/dp/0674196376/ref=sr_1_1?ie=UTF8&s=books&qid=1207413214&sr=1-1