She applied the “Page 99 Test” to her new book, Free Justice: A History of the Public Defender in Twentieth-Century America, and reported the following:Page 99 summarizes the U.S. Supreme Court’s 1963 decision in Gideon v. Wainwright, which held that states are constitutionally required to provide defense counsel for criminal defendants who cannot afford their own legal representation. It quotes an oft-quoted line from that opinion: “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” Page 99 also explains that, by the time the Court issued this ruling, it would not have been surprising to lawyers; Supreme Court case law had been tending in this direction for some time and, in a related development within the legal profession, lawyers themselves had become increasingly receptive to publicly funded counsel, at least in the criminal context.Learn more about Free Justice at the University of North Carolina Press website.
Superficially, and oddly enough, the page 99 test works perfectly for my book—perhaps because page 99 is right about halfway through. The book examines debates within the legal profession about public defenders both before Gideon (beginning in the Progressive Era) and after Gideon. So, page 99 is, coincidentally, the exact fulcrum in the book’s overall narrative arc.
In a deeper sense, though, I think the page 99 test works less well for my book than it might seem, because the book is not primarily about the Supreme Court or Gideon per se, but rather about the larger iceberg of changes and debates within American legal culture of which Gideon represented only the most visible tip. Certainly, page 99’s brief summary of Gideon’s holding will not be novel or surprising to legally trained readers, but rather familiar law school fare.
Nevertheless, I think a reader who turned to page 99 would get a pretty good capsule summary of what the book is about. On this page, the reader encounters a brief reminder of a point developed earlier in the book, that many lawyers had once considered public defenders controversial or at least puzzling. American legal culture has historically been committed both to an adversarial model of the criminal trial and to a set of vaguely free market, capitalist background assumptions about the legal profession—i.e., that the default scenario is that people hire their own lawyers as needed to help them pursue their private interests. So, how would it work for the government to underwrite its own adversary in criminal cases? But by the early 1960s, lawyers had developed a set of arguments that made sense of the public defender as a means of extending the benefits of adversarial legal representation to everyone. Yet these arguments generally accepted and proceeded from the premise that the government had no general obligation to provide assistance to the poor, outside of unique contexts such as the criminal courts—a limitation of American legal culture also briefly discussed on page 99.
--Marshal Zeringue
Posts
