Touro Law Review


The right to counsel in civil cases-metaphorically known as Civil Gideon-has gained traction in segments of the legal community, but advances have thus far been legislative, and while significant, adoption has been slow, less than cohesive or thematic and inconsistent across the country. Patchwork recognition and implementation by legislatures forms a fragile and uneven safety net. The availability of counsel is far from comprehensive. The preferred path to a comprehensive right to counsel in civil matters goes through the United States Supreme Court, but the Court refused to recognize a due process constitutional right to counsel in a civil matter in Lassiter v. Department of Social Services and has not spoken on the issue since.

The conventional wisdom within the community of Civil Gideon supporters is to avoid federal courts. Despite the conventional wisdom, a singular holding by the United States Supreme Court identifying a right to appointed counsel in civil matters in the United States Constitution would change the landscape in an instant. The question in the states would turn from "why" to "how," as implementation of the right would be the order of the day. It is time to grapple with the conventional wisdom about right to counsel and understand that waiting for a "better" Supreme Court could result in advocates for right to counsel waiting a long time, and possibly passing up the opportunity for dramatic change.

A model for dramatic change is found in the Supreme Court's switch on the constitutionality of state criminal sodomy laws from Bowers v. Hardwick to Lawrence v. Texas. As the environment within which Lawrence became law was fraught with political, legal, social, and cultural tensions, the change appeared to defy conventional wisdom. Framing a strategy for change will borrow from the change theory suggested by Malcolm Gladwell in "The Tipping Point: How Little Things Can Make A Big Difference." Gladwell's tipping point is a moment in time when forces converge and an idea or notion spreads like an epidemic. What factors, events, legal arguments, and actors must converge to create the tipping point? This Article will construct a strategy for getting the Supreme Court to overrule its holding in Lassiter to recognize a constitutional right to counsel in cases where the state attempts to terminate parental rights.