Author

In recent years, increasing attention has been directed to the problem of adequate representation for indigent criminal defendants. While overwhelming caseloads and inadequate funding plague indigent defense systems of all types, there is a growing consensus in the legal community that low-bid contract systems-under which the state or locality’s indigent defense work is assigned to the attorney willing to accept the lowest fee-pose particularly serious obstacles to effective representation. In this Note, Margaret Lemos argues that the problems typical of indigent defense programs in general-and low-bid contract systems in particular-can and should be addressed through § 1983 civil actions alleging that systemic defects in the state or locality’s chosen method for providing indigent defense services constitute a violation of indigent defendants’ constitutional right to effective assistance of counsel. Lemos concludes that, by addressing the causes of ineffective assistance, such an approach can achieve positive change in a way that case-by-case adjudication of postconviction claims of ineffective assistance cannot.

Federal law is enforced through a combination of public and private efforts. Commentary
on the choice between public and private enforcement has generated a
remarkably stable set of arguments about the strengths and weaknesses of each
type. But the conventional wisdom tells only part of the story, as it ignores variations
within the category of public enforcement. Many federal statutes authorize
civil enforcement by both a federal agency and the states. State enforcement is different
from federal enforcement in several important respects, representing a unique
model of public enforcement. The authority to enforce federal law is also a unique
form of state power. As I show, enforcement authority can serve as a potent means
of state influence by enabling states to adjust the intensity of enforcement and to
press their own interpretations of federal law. To date, enforcement has been
neglected in the federalism literature, which tends to equate state power with state
regulation. But enforcement authority may exist outside of regulatory authority,
allowing states to operate even in areas where state law is preempted or state regulators
have chosen not to act. And enforcement empowers a distinct breed of state
representatives—elected, generalist attorneys general. Just as state attorneys general
differ from federal agencies as agents of enforcement, they differ from state agencies
as agents of federal-state interaction. Moreover, attorneys general in most states
are independent from the state legislature and governor, and may represent different
constituencies. Enforcement authority therefore opens up new outlets for
state-centered policy, empowering actors whose interests and incentives distinguish
them from the state institutions that dominate other channels of federal-state
dialogue.

Attorneys General as Amici

An important strain of federalism scholarship locates the primary value of federalism in how it carves up the political landscape, allowing groups that are out of power at the national level to flourish—and, significantly, to govern—in the states. On that account, partisanship, rather than a commitment to state authority as such, motivates state actors to act as checks on federal power. Our study examines partisan motivation in one area where state actors can, and do, advocate on behalf of state power: the Supreme Court. We compiled data on state amicus filings in Supreme Court cases from the 1979–2013 Terms and linked it up with data on the partisanship of state attorneys general (AGs). Focusing only on merits-stage briefs, we looked at each AG’s partisan affiliation and the partisanship of the AGs who either joined, or explicitly opposed, her briefs. If partisanship drives amicus activity, then we should see a strong negative relationship between the partisanship of AGs opposing each other and a strong positive relationship between those who cosign briefs.

What we found was somewhat surprising. States agreed far more often than they disagreed, and—until recently—most multistate briefs represented bipartisan, not partisan, coalitions of AGs. Indeed, for the first twenty years of our study, the cosigners of these briefs were generally indistinguishable from a random sampling of AGs then in office. The picture changes after 2000, when the coalitions of cosigners become decidedly more partisan, particularly among Republican AGs. The partisanship picture is also different for the 6% of cases in which different states square off in opposing briefs. In those cases, AGs do tend to join together in partisan clusters. Here, too, the appearance of partisanship becomes stronger after the mid-1990s.