Taking the English Right to Counsel Seriously in American Civil Gideon Litigation

Courts have rejected a right to counsel for indigent civil litigants under the U.S. Constitution. But in some American states, that right arguably already exists as a matter of common law, albeit derived from centuries-old English common and statutory law. This Article analyzes the viability of arguments for incorporating the old English right to counsel in the twenty-seven American states that continue to recognize old English common and statutory law as a source of binding authority. Such “originalist” arguments may be appealing to judges who are more willing to revive a historically based right than establish a new right based in concepts such as due process.