Hot Springs Research Institute of Kanagawa Prefecture
21st Century New Jurisprudence A System of Institutional Evolution Chapter I: The Essence of Law and the Definition of True Jurisprudence Chapter II: Foundations of Jurisprudence â The Co-Evolutionary Theory of Procedural and Substantive Justice Chapter III: Mechanisms for Integrating Jurisprudence with Social Governance Chapter IV: How Legal Rules Transform the National Economy Chapter V: Unifying the Art of Reform with Legal Provisions This system proposes that law is fundamentally a teleological order whose legitimacy derives not from procedural completeness but from its capacity to realize substantive justice â the protection of life, liberty, and human flourishing. It diagnoses contemporary institutions through the "diagnosis-treatment-construction" triad, identifying structural violence embedded in healthcare monopolies, cryptocurrency markets, and sports governance as pathologies that invert means into ends. Procedural justice, left uncoupled from substantive purpose, self-accelerates into illegitimacy through cumulative distortion, feedback failure, and legitimacy erosion â a pattern confirmed by comparative history from Qin to Rome to modern America. The remedy is institutional self-calibration: sunset review, independent fact-finding, audit-based compensation, and rapid correction channels that keep law tethered to its teleological anchor. Reform proceeds through a four-phase roadmap balancing synchronicity (preventing regulatory arbitrage) with sequential constraint (avoiding systemic overload), guided by 31 diagnostic conditions that tie every provision to a specific pathology and cure. The underlying logic unifies healthcare's five therapeutic mechanisms, cryptocurrency's six-dimensional governance framework, and cross-border regulatory alignment under the "shared loss principle" â ensuring risk-creators bear costs, not society. Law's ultimate aim is not to protect capital's freedom but to expand individuals' substantive freedom, making the economy serve comprehensive human development. In an era of AI adjudication, digital assets, and ecological crisis, this jurisprudence demonstrates that institutional evolution â the continuous rebuilding of the causal chain between rules and their purposes â is the only reliable path to steering civilization toward life, liberty, and prosperity.
The increasing use of the internet by children in Azerbaijan to access harmful content demonstrates the weakness and absence of age verification mechanisms. The Law on the Protection of Children from Harmful Information has a comprehensive system of labeling information that is harmful to children on the offline and broadcasted information and has no direct enforcement mechanisms on the labeling of information on online and digital platforms. This research evaluates both the advantages and the missing aspects of the Azerbaijani system, outlines the enforcement mechanisms of the Texas House Bill 1181, and analyzes the constitutional and practical aspects of the enforcement mechanism of mandatory age verification. The Texas model provides a legal framework for age verification and was upheld under intermediate scrutiny in Free Speech Coalition, Inc. v. Paxton, raising significant privacy concerns. One of the concerns was disclosing users personal information to private platforms, which creates risks related to data collection, storage and potential misuse. Azerbaijan's digital identification systems, ASAN Imza and SIMA Imza, are implemented and are privacy- preserving, and therefore, the Texas system can be avoided by use of the given digital identification systems with the inclusion of the zero-knowledge proofs. The study focuses on the policy and the legal framework on the system to enhance the privacy aspects of the rights of the children, and in accordance with the data protection system, describes in detail the steps, legal aspects, and proposed changes to the privacy systems.
This Volume completes the constitutional theory of cryptographic protocols developed in the pre- ceding two Volumes by turning, after architecture (Volume I) and epistemology (Volume II), to historiography and prospect. It identifies three eras of network cooperation, each governed by a distinct value-scaling law and supporting a distinct constitutional form. The Sarnoff era ( đ â đ ) was the era of broadcast cooperation, in which a sovereign center distributed information and au- thority to a passive periphery; its constitutional achievement was the territorial nation-state and its administrative apparatus. The Metcalfe era ( đ â đ 2 ) was the era of bilateral cooperation, in which peer-to-peer connection generated value at quadratic scale; its institutional realization was platform capitalism, in which intermediaries captured the surplus that user-to-user connection produced. The Reed era ( đ â 2 đ ), now beginning, is the era of group-forming cooperation: com- binatorial subgroup formation generates value at exponential scale and, for the first time in the history of communications networks, is not structurally captured by any intermediary. The cryp- tographic substrate is the first medium that supports Reed-scale value formation without platform extraction. The Volume develops three substantive theses. First, the three eras are a historical sequence in which each succeeding form does not annihilate the prior form but reorganizes the space of possi- bilities around itself; the Reed era does not abolish Sarnoff and Metcalfe institutions but subsumes them as particular cases of a richer combinatorial topology. Second, the constitutional architecture of the Reed era is three-tiered: a substrate-agnostic cryptographic foundation; tenant-entities (com- panies, decentralized autonomous organizations, voluntary associations) operating on the substrate without owning it; and individuals as final nodes ( elos finais ) participating in many subgroups si- multaneously across many substrates. Third, the local description of the individual and the global description of the civitas stand in the Bohrian conjugate relation identified in Volume II, but at Reed scale the conjugacy becomes constitutionally structural rather than merely epistemic: the individual cannot be specified independently of the civitas in which his subgroup memberships are constituted, and the civitas cannot be specified independently of the individuals whose memberships constitute it. The reconstruction of civil society on the cryptographic substrate is unfolding now and will continue through the present century. We are at the beginning of an era whose institutional forms cannot be enumerated in advance. The proper response, reaďŹirmed from Volume II, is Knightian humility paired with the architectural strategy of robust commitment. This Volume specifies the historical and structural conditions under which that humility and that strategy operate.
On June 22, 2026, the White House issued Executive Order 14413, directing the federal government to accelerate the deployment of quantum computing and to assess "the implications for the migration to post-quantum cryptography." The order is the latest and loudest signal of a fact the legal system has not yet absorbed: the cryptographic assumptions behind nearly all digital proof carry an expiration date. Every electronic signature, every encrypted database, and every blockchain transaction rests on math that a sufficiently powerful quantum computer can break. When that computer arrives, adversaries will be able to forge the signatures and decrypt the records on which courts, regulators, and markets now rely. Data stolen today is already being warehoused for decryption tomorrow. Signatures trusted today may be forgeable tomorrow. This Article argues that the quantum transition forces the law to confront a distinction it has long been able to ignore: the difference between probabilistic verification (an intermediary's opinion, an AI confidence score, an auditor's judgment) and deterministic verification (a mathematical result that anyone can independently reproduce). Across digital identity, financial services, insurance, defense, supply chains, and digital assets, organizations prove claims through intermediaries whose honesty cannot be checked and whose methods cannot be reproduced. A small set of well-understood cryptographic tools can replace that fragmented apparatus: hardware-secured signing keys, Merkle tree timestamping, post-quantum signature standards, and zero-knowledge proofs. Together they produce verification that is reproducible, tamper-evident, and quantum-resistant from the outset. The Article makes three contributions. First, it reframes the âverification gapâ as a legal problem rather than a technical one, showing how the Federal Rules of Evidence, the Daubert reliability standard, data breach liability doctrine, and fiduciary oversight duties each already point toward deterministic proof. Second, it shows that quantum risk is collapsing the legal defenses built on classical cryptography, most visibly the âit was encryptedâ defense in breach litigation, while creating new disclosure and diligence obligations for boards. Third, it maps deterministic verification onto concrete applications in six sectors and proposes a regulatory framework, including a âdeterministic assurance levelâ for evidentiary purposes and a public governance process for the rule schemas that translate law into machine-checkable criteria.
The United States Constitution, ratified in 1788, was designed for a world of quill pens and land deeds. Today, algorithms govern hiring, credit, healthcare, and criminal sentencing. Artificial intelligence generates synthetic realities indistinguishable from truth. Surveillance architectures monitor every communication, transaction, and movement. Ecological systems critical to human survival approach irreversible tipping points. And democratic institutions face simultaneous crises of trust, legitimacy, and capture that no existing constitutional framework was designed to address. REPUBLICATE is a comprehensive constitutional and technological framework for renewing American self-government in the digital age. This paper proposes an eleven-article Bill of Eternal Rights as a constitutional supplement protecting digital sovereignty, algorithmic transparency, environmental security, democratic access, corruption-free governance, economic liberty, biological sovereignty, truthful speech, generational justice, AI co-creation rights, and immutable safeguards. The proposed rights are grounded in existing constitutional jurisprudence, international comparative law, and democratic theory, with each article addressing documented failures of current law. The REPUBLICATE framework pairs its constitutional proposals with a complete technological architecture: REPUBLICHAIN, a sovereign Layer 1 blockchain with hybrid Proof-of-Stake/Byzantine Fault Tolerant consensus and full Ethereum Virtual Machine compatibility; REPUBLICORE, a seven-pillar governance operating system; REPUBLION, a Proof-of-Contribution civic currency rewarding democratic participation; and the Eternal Custodian, a constitutionally constrained AI governance system. Economic modeling drawn from OECD, World Bank, and Congressional Budget Office data projects GDP impact of +1.5% to +4.2% from restored institutional trust, fraud reduction, and civic marketplace expansion. The author is a self-educated independent scholar, 80-time published author, and formerly homeless ex-felon from New York City who gained access to Harvard University's research library through an act of institutional good faith. REPUBLICATE was first published on July 29, 2025. This document is Version 1.2, the definitive SSRN submission. Every claim is verifiable. No institutional affiliations are claimed. No credentials are invented. No partnerships are misrepresented. This is a document written in integrity, for the Republic.
The dissertation aims to demonstrate that direct democracy is the new stage of democracy. Direct democracy has never been taken seriously. Most authors deem it unrealistic given space and time constraints and stress the risk that the ignorance of the masses could pose. Since democracy is the search for a legitimate and efficient system producing increased equality and respecting individual and minority rights, direct democracy seems, to many, a dead-end. In section 1, I analyze how direct democracy, theoretically, can answer these objections. Legitimacy is grounded in intersubjective and institutional trust. Distrust is not only targeted against the government but also toward others, fueled by and fueling polarization. Direct political participation in deliberating and voting is not only a solid human desire and condition of fulfillment but also a vector of renewed institutional trust, echoing a broader movement for more horizontal power. The efficiency of direct democracy is more debated. An increasing number of voters prefer decisions driven by experts over the crowd. Direct democracy must only prove that it is at least as efficient as experts or that experts are fallible. Given the epistemological value of non-experts, the private character of expertise, and the dynamic and inclusive aspect of pluralistic intelligence, this minimal test is passed. Direct democracy is, therefore, a powerful tool to solve the compromise/consensus conundrum. While consensus has turned into that of a particular elite, compromise is impracticable in a polarized context. Direct democracy creates new majorities based on projects rather than programs. The condition is that minority rights stay off-limits and that individual rights are treated through qualified majoritarianism. In section 2, I empirically test direct democracy's adaptability and margin of uncertainty. Direct democracy, in the 24 American States that allow it, leads to results closer to the majority opinion than legislatures. Initiatives present no constant political trend in their results and prove resistant to polarization. In recent popular votes on abortion, voters did not align with their parties on critical issues. In Taiwan, direct democracy helps re-unite on specific topics a divided nation, powered by online debate and decentralized fact-checking tools. In Estonia, citizens have had the possibility to vote via the Internet since 2005, a system that has increased turnout and overhauled the generational digital divide. The Swiss used internet voting for twenty years until it was halted in 2020. Security issues around e-voting still need to be solved regarding identification, devices, and verifiability. Nevertheless, both examples prove that, once these difficulties are solved or in contexts with higher trust or lower stakes, e-voting fosters participation, flexibility, and security. It enables direct democracy to self-institutionalize itself. In section 3, I make concrete propositions for a "digital direct democracy". The referendum is subject to criticism. Renewed fact-checking and tracking are needed, although fake news is no excuse for inaction. Citizens' assemblies can be helpful to deliberative and controlling tools if their recommendations are submitted for a referendum. Referendums always risk becoming plebiscites unless they are citizen-led. Multiple-choice voting, multi-stage referendums, or open questions need to be experimented with through e-voting. What does the future hold? Efficiency needs to be reconsidered with AI, potentially leading to "datatorship". Reversely, the development of e-voting has the potential to allow for a fully direct democracy. This model of "pancracy" could be powered by communities in a society with multiple individual affiliations. Decentralized autonomous organizations already provide an experimental framework. "Datatorship" and "Pancracy" are processual utopias. They allow us to understand the conditions of a true democracy.
The Doctrine of Anchored Decentralization constitutes the first comprehensive constitutional and statutory framework capable of reconciling decentralized digital architectures with the legal, regulatory, and jurisprudential structure of the United States. Developed within the broader scholarly series <i>The Republicâs Conscience</i>, this thesis represents the second installment in that corpusâbuilding directly upon the constitutional and structural principles articulated in the inaugural paper and extending them into the domain of digital-asset governance, administrative delimitation, and federal statutory coherence.This work advances the nationâs first universal, architecture-based commodity-versus-security classification framework designed for deployment across American constitutional, statutory, and judicial systems. By replacing rhetorical claims of decentralization with empirically verifiable and legally cognizable structural tests, the Doctrine furnishes courts, Congress, and administrative agencies with a coherent, adjudicable methodology capable of withstanding scrutiny under established Supreme Court jurisprudence, including <i>Howey</i>, <i>Reves</i>, <i>Forman</i>, <i>Marbury</i>, and the post-<i>Chevron</i> administrative landscape.The Doctrine challenges the prevailing assumption that blockchain-based ecosystems may operate as âstatelessâ economic systems while still participating in markets governed by constitutional law. Through sustained analysis of constitutional text, statutory construction, cryptographic system design, and post-Chevron administrative jurisprudence, the work demonstrates that decentralization cannot acquire legal legitimacy unless it remains anchored to the Chain of Consent â the constitutional requirement that all economic power be traceable to accountable authority.Drawing upon Article I, § 8 (monetary and commercial power), Article I, § 9 (appropriations and fiscal discipline), and the Due Process Clauses of the Fifth and Fourteenth Amendments, the Doctrine establishes that most contemporary decentralized systems operate within a constitutional vacuum: they perform value transfer, economic coordination, and pseudo-monetary behavior without satisfying the representational prerequisites of the American constitutional order. This analysis is further grounded in <i>Trustees of Dartmouth College v. Woodward</i>, <i>Gibbons v. Ogden</i>, <i>Wickard v. Filburn</i>, <i>United States v. Lopez</i>, <i>NFIB v. Sebelius</i>, and the postâ<i>Loper Bright</i> landscape of statutory interpretation, revealing how modern digital governance architectures strain the boundaries of jurisdiction, accountability, and enforceability.At the systems-engineering level, the Doctrine reframes decentralization not as a monetary phenomenon but as a cryptographic lineage derived from Haber and Stornettaâs foundational timestamping architecture. This lineage demonstrates that Bitcoinâs core innovation was not the creation of new money, but the operationalization of a distributed verification engine. The work therefore distinguishes decisively between decentralization as architectural substrate and cryptocurrency as asset behavior, establishing that most digital tokens cannot qualify as commodities under the Commodity Exchange Act absent a constitutionally anchored framework for origin accountability, managerial neutrality, and market integrity.The Doctrine exposes structural defects in modern legislative approaches â including H.R. 3633 â demonstrating how contemporary statutory efforts misapply classical commodity theory, create jurisdictionally unanchored digital entities, and institutionalize anonymity architectures that undermine due process, enforcement capacity, and market legitimacy. In response, this work develops the Anchored Decentralization Test, the first system-level doctrine to allow Congress, courts, and regulators to classify digital assets based on verifiable architectural behavior rather than semantic self-description.The Doctrine further introduces the novel concept of Autonomous Commodity Primitives (ACPs) â a sovereign-grade digital infrastructure class designed not as speculative instruments but as immutable, cryptographic attestations of real-world sovereign reserve assets. ACPs are engineered to function as Treasury-grade verification rails, enabling real-time auditability, ledger-level integrity, and constitutionally compliant Asset-Backed Digital Currency (ABDC) architecture. Unlike cryptocurrencies, ACPs do not manufacture value; they attest to value that already exists within sovereign reserve systems.To harmonize privacy with constitutional accountability, the Doctrine integrates Zero-Knowledge Proofs, privacy-preserving audit layers, and non-custodial verification mechanisms, allowing digital systems to preserve Fourth Amendment-equivalent privacy while maintaining lawful traceability through institutional channels. This design restores the Chain of Consent without creating surveillance architecture.The Doctrine concludes that decentralization without accountability constitutes a structural form of constitutional evasion â an economy operating beyond representation. By restoring constitutional anchoring to distributed architectures, the Doctrine preserves innovation while reaffirming the Republicâs foundational principle: that economic power is legitimate only when traceable to those whom the Constitution recognizes as sovereign.Ultimately, The Doctrine of Anchored Decentralization provides a constitutional roadmap for the next century of digital infrastructure. It is <i>not a rejection</i> of decentralized technology, but a <i>restoration</i> of its lawful purpose: to function as a verifiable architecture of trust, anchored to the constitutional principles that have sustained the United States for more than two centuries.
Non-fungible tokens (NFTs) are unique tokens stored on a digital ledger â the blockchain. They are meant to represent unique, non-interchangeable digital assets, as there is only one token with that exact data. Moreover, the information attached to the token cannot be altered as on a regular database. While copies of these digital items are available to all, NFTs are tracked on blockchains to provide the owner with proof of ownership. This possibility of buying and owning digital assets can be attractive to many individuals. NFTs are presently at the stage of early adoption and their uses are expanding. In the future, they could become a fundamental and integral component of tomorrowâs web. NFTs bear the potential to become the engine of speech: as tokenized expressions cannot be altered or deleted, they enable complete freedom of expression, which is not subject to censorship. However, tokenized speech can also bear significant costs and risks, which can threaten individual dignity and the public interest. Anyone can tokenize a defamatory tweet, a shaming tweet, or a tweet that includes personal identifying information and these tokenized expressions can never be deleted or removed from the blockchain, risking permanent damage to the reputations of those involved. Even worse, anyone can tokenize extremist political views, such as alt-right incitement, which could ultimately result in violence against minorities, and infringe on the public interest. To date, literature has focused on harmful speech that appears on dominant digital platforms, but has yet to explore and address the benefits, challenges and risks of tokenized speech. Such speech cannot be deleted from the web in the same way traditional internet intermediaries currently remove content. Thus, the potential influence of NFTs on freedom of expression remains unclear. This Article strives to fill the gap and contribute to literature in several ways. It introduces the idea of owning digital assets by using NFT technology, surveys the main uses of tokenizing digital assets and the benefits of such practices. It aims to raise awareness of the potential of tokenized speech to circumvent censorship and to act as the engine of freedom of expression. Yet it also addresses the challenges and risks posed by tokenized speech. Finally, it proposes various solutions and remedies for the abuse of NFT technology, which may have the potential to perpetuate harmful speech. As we are well aware of the challenges inherent in our proposals for mitigation, this Article also addresses First Amendment objections to the proposed solution.
Cindy King Man v. Himself The story is being disassembled for you and for me. Any flower of at least three petals will be reverse engineered. The tragedy still happens even if you tear out the last page. Even if you step into the lobby, the violence still occurs, even if you look away. Sometimes it happens off-stage. Just ask Antigone, Agave, Iphigeniaâ The plot has been drafted and erased so many times there's a hole where words are supposed to be. No one's surprised that it was all a dream (in fact, they're angry and tired). The promise of an ending, an optimistic illusion: cyptocurrency, non-fungible token, a skin your digital self can wear. Rain washes the wisteria. Eurydice, don't even think about looking back. The stone has already sealed the entrance. The only way is forward. The rain washing your car yesterday is selling flood insurance today. The best treatment for hubris is to be looked at through the wrong end of binoculars. There's a lesson here, a takeaway, if only the rain would stop, if only we could find a story and character fool enough to deliver it. King 8 ...
Abstract This chapter concludes Freedom of Expression as Self-Restraint by probing briefly a few of the knotty procedural issues that attend the efforts by any system of governance to implement the moral principle of freedom of expression (or, rather, to implement some constitutional or statutory guarantee that corresponds more or less closely to that moral principle). Among the issues at which the chapter glances are the scalar character of compliance by systems of governance with the principle of freedom of expression, the legal remedies that are apposite for giving effect to the moral obligations imposed by that principle, the location and stringency of the burden of proof in litigation where communicative liberties are at stake, and the location of the general legal powers to invalidate statutes and other laws. The chapter explains why these issues have been consigned to a fairly brief concluding portion of the book, instead of being treated in depth.
The Federal Election Commission (FEC) is the regulating authority over the monies that U.S. citizens are allowed to give to political candidates and parties. However, preexisting loopholes in FEC regulation allow for contributions to be made in situations that do not require donors to disclose their identity, a term coined as âdark moneyâ. The increase of dark money in campaign financing and the ability of political spending to influence voter perspectives and decisions puts the credibility of the political finance system at stake. Additionally, with the introduction of blockchain, decentralized autonomous organizations (DAOs) and smart contracts to political financing these technologies collectively can serve as a new vehicle for bad actors to use. In this paper, the effects of blockchain and smart contracts on political finance are examined through four use cases to demonstrate how these technologies can extend anonymous, foreign interference in political campaign financing and further cripple public trust in it.
The Senate proceedings occasioned by Dr. Christine Blasey Fordâs allegation against Justice Brett Kavanaugh left the then-nominee calling them a âcircusâ and observers confused about who was supposed to prove what and by what standard. Since the Senate is ill-suited to sorting out cases and controversies (and since the Ford-Kavanaugh matter will surely not be the last of its kind), the Senate should adopt standards (burdens of proof) for future judicial-nominee proceedings that it borrows from a sister branchâthe judiciary. In any proceeding, the burden must be ladedâit must be determined which party has the burden in the first place. It must also be weightedâit must be determined how much of a burden is to be imposed. This lading and weighting takes place with regard to both the burden of making out a colorable claim (the burden of production) and also the threshold for deciding in a partyâs favor (the burden of persuasion). Courts often lade the burden of persuasion, in particular, on the party that (a) has the lesser interest at stake, (b) precipitates (as distinguished from initiates) the action, or (c) warrants special suspicion and scrutiny. This Article applies these principles to Senate judicial-nominee proceedings, noting that those proceedings sometimes involve two separate inquiries: (1) the qualification (or general suitability) inquiry, and (2) the inquiry into any allegation of specific and potentially disqualifying wrongdoing. The Article posits that, as to the qualification inquiry, the nominee has the burdens of production and persuasion and must show with convincing evidence that he or she is suitable for office. As to the allegation inquiry, although the accuser should have the burden of producing credible evidence to establish a plausible claim of wrongdoing, sound principles mitigate against the accuser bearing the ultimate burden of persuasion. That burden should rest with the nominee, who must show that the allegation is implausible, incredible, or unreasonable. Finally, this Article proposes a sliding scale for determining the precise threshold of proof required to meet this burden, focusing on the three different levels of federal judicial appointments (district judge, circuit judge, and Supreme Court justice) and accounting for the different interests involved as to each.
Just over twenty years ago, in 1998, science fiction writer and technologist David Brin warned, âOne of the scariest predictions now circulating is that we are about to leave the era of photographic proof. . . . We are fast reaching the point where expertly controlled computers can adjust an image, pixel by microscopic pixel, and not leave a clue behind.â (David Brin, The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom? 28 (1998)). Now, many articles are reporting that a similar technological transformation is occurring in the realm of audio- and video recording. Legislators and legal scholars have begun asking what laws or technological measures can be used to protect the public from being deceived by âdeep fakeâ videos.
This symposium essay considers how First Amendment free speech protection might apply to the creation of such videos â and how such protection might differ from the protection that the Supreme Court found, in 2012, applies to false statements of fact. First, it analyzes how courts have generally adhered to a well-established dichotomy in First Amendment treatment of false claims: In the commercial marketplace, government often stands ready to intervene to protect us against being sold forgeries or other fake goods. The same is true in certain situations where security is at stake, for example, where a fake ID might give a person unwarranted access to an airplane or a building off-limits to the general public. Matters are very different, by contrast in the marketplace of ideas. Here, individuals are largely on their own. Government may not constitutionally exile certain ideas from the free trade in ideas, as it can ban harmful goods or services from the realm of buying and selling. In the realm of free expression, wrote Justice Jackson, âevery person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.â Thomas v. Collins, 323 U.S. 516 (1945) (Jackson, J concurring). The justices in the 2012 case, United States v. Alvarez, disagreed about how to classify verifiably false autobiographical statement in this dichotomy (and thus disagreed about how to analyze Alvarezâs false claim to have won a Congressional medal of honor). But they largely agreed that false statements on matters of public concern should generally be treated as contributions to the marketplace of ideas, and receive staunch First Amendment protection â unless they constitute defamation, fraud, or some other legally-cognizable harm.
Having examined the Alvarez decision and certain difficulties that confront it, the essay then asks whether this First Amendment framework requires modification when the vehicle for deception is not merely a falsity but a forgery â that is, where it is not merely the content of the speech that is intended to deceive, but also its purported source or vehicle. A deep fake video, for example, does not simply present a false description of an event. It clothes such falsity in the authority of video evidence. The essay considers some of the reasons why the First Amendment should perhaps give government greater leeway to regulate fake video- or audio-recording than verbal lies - why, for example, a false statement about war-time actions might be protected speech, whereas a fake video of an event in that war allowing people to see with their own eyes, events which never occurred - might raise more significant concerns. Or why the false content in a fake news article may be protected speech but this may not be true of the false guise it wears as a New York Times, Chicago Tribune, or Washington Post article when neither publication played any role in it. The essay also briefly considers some of the difficulties that courts would face in attempting to differentiate in this way between falsity and forgery, and providing different First Amendment rules to each category of deception.
In February 2015, in what appears to be the first of its kind, a judge in Buenos Aires awarded a transgender woman a public pension in recompense for harms wrought upon her âas a result of the discrimination and the institutional violenceâof a general, constant, and direct natureâpermitted by an absent state and promoted by police officersâ (G.N.B. v. GCBA). The judge, Victor Trionfetti, ordered the City of Buenos Aires to pay the woman, identified as Ms. G. (Sra. G.), a monthly allowance equivalent to the minimum living wage, which in 2015 was $4,716 pesos. Ms. G., who was sixty-one at the time of this ruling, had expressed a female gender identity from an early age and left home at nine. She had been raped and tortured by police and prison guards on numerous occasions, had been denied care in hospitals, and, because of discrimination due to her gender identity, had been unable to find formal employment. In her brief, Ms. G. stated that, as a result of her transgender status, she had spent about half her life in prison and the other half living on the street as a sex worker. She eventually left sex work to labor as a seamstress. As a result, she has no pension or financial resources of any kind. Ms. G. sued the government of the City of Buenos Aires for damages.Although the pension was awarded only to Ms. G. and not to all trans people, and the judge's decision sets no precedent and is currently under appeal, the case is among the first of its kind anywhere to provide reparations to a trans person for the damage caused by state-sponsored violence and the abrogation of a government's duty to protect. The argument of Ms. G. mirrors the rationale for proposed legislation in the City of Buenos Ares and the Argentinian National Congress, which would award pensions âto those who have been deprived of their liberty for reasons related to their gender identity as a consequenceâ of actions taken by officials in the criminal justice system (G.N.B. v. GGBA).In 2012, Argentina passed the Gender Identity Law (Global Action for Trans* Equality 2013), which Judge Trionfetti describes as âa turning pointâ in the recognition of trans people. In his decision, the judge relied on the reports of advocacy groups documenting violence and discrimination and the testimonies of witnesses at the trial to find that discrimination and violence directed at trans people is a generally accepted fact. By doing so, he shifted the burden of proof from Ms. G. to the city government. The city responded by simplyâand lazily, according to the judgeâdenying these facts and provided no evidence to counter Ms. G.'s claim. Trionfetti acknowledges that the nature of Ms. G's claim exceeds the traditional standards of tort law. While the law as a tool is insufficient, the language of the decision expands the realm of what might be possible in the process of reparation. The judge characterizes the harms suffered by Ms. G. as part of the âstructural nature of her stay in the world.â The damage âis not the result of a particular event, but rather part of a continuum. . . . It is a damage that is endured by the âsheer boldnessâ of establishing oneself as an autonomous Self in front of others.âTranslator's note: In the translated excerpts below, Ms. G. is identified as the applicant, and the Government of the City of Buenos Aires is referred to as GCBA or as the respondent. All the notes are those of the judge, and they appeared as footnotes in the original text. Citations of case law and legislation have been omitted. The numbers for section headings have also been omitted.. . . .As with most judicial cases, the conflict that I must resolve here focuses on the legal situation of the parties. However, I would be guilty of cynical shortsightedness if I were to consider the situation posed by Ms. G. as a legal drama that only concerns her as an individual. The particular facts of the case, the evidence provided by the witnesses, and the other evidentiary elements introduced in this suit demonstrate that the applicant belongs to a group that has been systematically and viciously discriminated against.To my mind, the nature of this claim exceeds the standards of âtort lawâ as understood by the civil or administrative legal doctrine, and are to to the of the of groups as the the applicant belongs has been in to this group and has a in the or people its or of groups to and to to an that not to to in which of the of of and the and of be at the of the that from to public and from they be understood and this case only from the proposed of legal would to an result of . . is that Ms. G. is and to be a trans The has not this and the witnesses this It is to this because the of the claim in the of the to gender identity, an of the of the and is an that the of on or or gender identity a and of to the . . of in to of and gender identity, the case of the applicant, are and and of of and and discrimination in to the of other to the . . of of groups is that to the of Law as the Identity . . the of to as the trans is not possible to the about which with on and to which has been no of a in of the which have to a to claim on the and for the of of the individual. . . . It be that people to the that the not only discrimination but have been in and As a result of and discrimination that of are to in by the that to the most of the with for their of life and that all of which is in decision suffered by the is that are to this in the of the and the other under the of the of the City of Buenos with to the of this In the case of the National Congress, the to a pension to those who have been deprived of their liberty for reasons related to their gender identity as a of actions of judicial or actions by the public or In the of the city of Buenos Aires a Law for has been It to the and of the and of trans people by a monthly for transgender people the age of The reasons for are proof of the and of by or the of trans people and the of and on a result in an of that trans of life and from any of any kind of life It be that the of the Gender Identity Law is a turning and the of an of the to be to is also to any kind of these I among the provided by the Gender Identity Law and to for in Argentina in with trans The possible to the situation of these and the of the Gender Identity Law and that and of trans people of their and that the trans is in a because of and the of the Gender Identity Law a on their and of In the that these are that of the trans people the and at of their but no to is in of the that the of and other as and in the of trans due to the of sex work in this It also the for public to this that for these people to public care is that trans people at the process of their a case in is in to The that of the trans the to their due to the of to public the notes is a among trans in Argentina to to the of the according to this had of a of those they have or guilty to the testimonies and at in their However, the notes that the of is among trans and the situation of this particular group as of trans have to and from and because of their gender identity, these have the of Law are by the of living of and discrimination of and for the and discrimination suffered in the is from the trans people that from administrative and other as of also in the in the for to in the and by the is also It by the of of these groups and with the of Law in which the of the in trans people and of these were the of and . . to the provided by the the to in the and and public discrimination the of and in the The were and government actions in public hospitals, and discrimination of not to labor an of or direct by on or in the and of is in by the people because of their or gender on the of the of the in of by their of the of as to people the of a discriminated because of his on are are by in of at by of the to be at the of their among other the only the on the and of people. people Ms. G., for life was a As a result, the with the state and its was with and of their an of the be understood that the by Ms. G. is as the state that the to the of the applicant are and the applicant, who is and have the burden of that her and life were by the of the not have to they are the not have to their violence not have to they are in to the burden of proof to the applicant would only result in of the people not their I that trans people, as of an not have the burden to that they to that group judicial to their to be . . the other is not for the in its as of at to simplyâand the facts that the has It must be that of to justice are the evidentiary standards and that to their situation to the are in which of is not in of the but in a The process with the to in labor cases, law or criminal a from the of in of the consider the evidentiary of the respondent. . . . In the was stated that is not understood the GCBA is to any of the by the It be that the gender identity of the applicant was not by the but the I have as a generally are as It from the of the that the applicant a The facts and the demonstrate to the testimonies of the witnesses at the on . . is a woman and she the She stated that the applicant was deprived of her liberty on and to the at the time the police She that were of that their were in the and She that was for to or with people of the was for in which the person to the as by their prison was The by police the of in and not would the that by a street they would be a police and to a that as as she the applicant had no formal she stated that they other by and not public because they would the of not with their because they be to be had to with the person to of the stated that they in was to have any kind of as they not stated that the of the applicant was sex She that the applicant a formal âas they all had at She stated that was to find a formal to all the the the on any in to be a The she to and to that were of a person as a She to the in public but that, currently they her identity, are in which an to their expressed that she was Ms. G. any pension or financial or if she her She that on they she that the applicant not or She stated that the applicant not have because she to public hospitals, and that in public She that or in to the what government violence on Ms. G., and the that was the the time of the to the time of the of She that the of the Gender Identity they to have to that were law to and She stated that trans to but sex because they find She to be a but was not a of her situation and that of the trans the was about her . . . she the that I a in language and a in and due to the of all by a woman in the and not any identity I not any my is . . . and with that I and The are in the stated that the applicant was deprived of her which they all were at . . . She also referred to the and the situation of of the All of her or the applicant, who had been in the to and in The police that the most were the numbers and were the most they would be for to She stated that was because to be what to be and what were to . . . by the was the she stated that under she was in or She was the City of Buenos that she has in this city in her the would to to and a because I not in living this the endured in police she in the to which they were would and that were and the of the police She stated that she was in the police for and was not she had to in was to sex and She that G. was deprived of her liberty on in the prison of and she this was because of her the applicant had any formal the that this was that of She that she has a and was a for the of of her with the who to her because of her gender The of any to because that would result in their . . . In my case, I was was the would and for work and they would this to for a or I would be discriminated by my or or that the was if she what was the of the applicant, she and she that in a the that and I this with my to be raped in of or and at the a by an absent by the of that the applicant no state allowance or financial but she for because she a monthly of pesos. She about her and that was by The referred to the that the applicant had no She the for an allowance or of state because of her of were that of a and the judicial she was her my I in these she to have suffered discrimination in public and had to because of would to on the to the of the her to the endured and the a a in and of a that would not have in the first had the its other of is to the state provide to a person who has suffered of violence and discrimination to or what actions or were by the state the of G. the harms and by are in the nature of her stay in the and as a she had to in a and with an state that and her gender It is not about the in the of the of in that the of the they they the of a from the to the and suffered by the applicant are not or is damage to the that is all and It is not the result of a particular is part of a continuum. damage has no or because is a damage that is endured by the of establishing oneself as an autonomous in front of damage not from in the first rather what is is be state that the the the and and that are due to the of and actions to and the of Ms. G. in a of of the state is on the of of Ms. her is and that the state of the that are this judicial the in to the of the applicant and to the and that the of the applicant, find of The of life of transgender is and the with in a that and gender However, the damage that of the people, of their the applicant discrimination for the applicant an to the she life with of life the life of Ms. G. with of and of her of and of the was the of the applicant by the violence by and of the damage by Ms. G. her life as she was with in the process of her her of in her to her applicant has a that those who not and is to consider The of the applicant has been a this not be damage is to a or an by law is is the the or with of the and which in of this and as an of the of is by the as as the of the witnesses, that a situation of and discrimination the applicant because of her gender her as a trans I to that the discrimination endured has been of a nature and from and institutional The proposed witnesses as as the reports by also this which the of the damage by Ms. of legal system is by the and the the of their of the National and and of the on the Law of state is by its in to the of the applicant in a of to this is from the of with that gender identity, and of the an because in all or that is to that gender identity to and of which or not with the sex at the of the if of or by or other and other of and identity, is related to the and of the The to is of and in the to to to and due to the and of all on the due to the and of the legislation and the standards were and among of the of the and of of the of the of a of in the and of the of and of the on and of the and and of the as as and of the National the duty on all judicial of the of the on and in particular the duty to to the standards of and of the of I must the case of in which the has that of the is a of a to all the of the and the of the state to and the and of the and any is to the or any that be the of any of the in the is with . . . the of the law and the has stated that of from the of the and is to the of the individual. be with the that a group has the to because of its It is with that to a group as and with or to discrimination in the of which are to not The case law has also that at the of of the of and has the realm of The of and public on this and the legal the has that must from any that, in any or is at of or The are âto to or that in their to the of a group of the to that the state must with to and of with its or or and in that case, the of discrimination because of was to of the the by of which discrimination is not an or but the of the with the of the for the of other that have not been the the other of of the in the of the most for the and in of the of in law. In this in the the of the of the has in its to the of on their the of for an to the of as a of the of has stated that is in of the on that in the of v. the that is âa by of the It also that the of in has and is not in the of v. the that as of the that be under is of those on which are as in the that they are or to the and on and that be under the other in of the the of the Gender Identity Law are by the of in of the of the City of Buenos Aires is also because or the and by or by to to have been no public in at the of of the trans group the of or resources of the of the City of Buenos trans people have not been to has been promoted to public the that their are the of trans people in public is not by the of and at trans people to to in a and are by this has this any or to trans people, and the applicant in the and of the system are no public to the of the city on the that the Gender Identity Law be any kind of in the system that the gender those to the people are not in the that the City of Buenos Aires to and the of The state has not provided any evidence to this are no in for in public hospitals, and on for the of identity and The law is in this sets the of public but the trans is not trans groups are by and this is because they the of In this Law not the of trans a to identity in people are they not have to their or gender in the a of the law for the of the trans is no evidence in the case that that are and for the and all public officials who are in a to or trans people from to or or the have any standards for this for the Action by the of as a for those who justice in or gender identity, and concerns about these of to because the and are no from or but these of are by and are for the and I consider a the state identified and the of of Ms. G's and other is in the I have no that the to the damage that Ms. has City of Buenos Aires is in for the to in its to the of the However, the with as by of the was to and the situation of transgender people, the group to which the applicant the and were the and that to the of the applicant be only as a of of as was their to to the and in the the and the of the of the City of Buenos on in this case, I to the by the to the of the state as a in these I stated that the to the of the and is in the of an decision, to its and that are at is by of by the of . . to my of the in of the and by the expressed by the of the in particular and the be by the City of Buenos was due to its of that the applicant suffered the the government's is only these I that the GCBA be sued and be for the that have been in the must be that the of of in the of the of to an and direct and is not to the of of the the or of state or officials be to the the state must be as a and in a direct a to their in a state of a of by the The for the of the state is to people, their and their if is due to or the state has to its of has stated that direct on the of is as a or to the of the the nature of the the to provide the the the and the and the of of damage the situation of Ms. G., a trans person in the City of Buenos the by the state and the to provide an that to the of transgender people, to the that the state is the damage was in of the of the trans is that the has legal and has also to the by the for the of the of transgender of was insufficient, as has been that to an of and by and the of the City of Buenos Aires the and of public time to those of a is provided by Law which the of or to their according to their gender However, is an that the to or other of of the trans The of the law is by its to the by the applicant in the case at a that of the and of discrimination on of However, an with of the which the and of sex on the As as are no for the of trans and discrimination to the only left to those the of in is for a state with the duty to the of the I consider that the in of the of the City of Buenos Aires has not been to the of and of that the applicant from her of in the and in of the National would be of all if the that Ms. G. was deprived as the to a would not have a state of the sets as a that the damage must be the that from the of a and public law state to its and by to the to a gender identity, and other It is in the of in the to gender identity of the applicant that must also be The the of by the state to to the in the and is the and that the its legal in of the be to an for the recognition of the by is an of the to as the I that by to the of the applicant the would an I with the of Ms. legal in this legal or with which the applicant is a of law that that damage must be is not a legal The the that is by a is on the of judicial In as the a judicial decision that to not the of those in state to the to and and and to the of its with a to the of the in the by all the of of this in that in an and the of the of the The to of not the of the other as the that is by . . . that part of a this is to the by in the case v. Government of the City of Buenos Aires the of public of the GCBA to to In the of stated the that a of the the of the government to its the of in the and in and that the of the by the is and that is part of an the of its law as for its to a on the Law of the argument of the of and to a and of of that and that the of legal but not if the of the would would also be proposed of the in the of an claim for the of and a that would be in the but has been the is The has an in the of these but its is not absent in this the of a is not the by the state but the of any legal to the to claim for of the duty It is only possible to consider a an or to is to by a or the of a judicial decision with the duty from the of their this decision is only for the that for Ms. G. and judicial decision not have the of a of an of the other administrative to a on the to that a judicial decision the to an that and by the of in the of the and the that the National and the of the City of Buenos in are not but of the that the discrimination suffered by Ms. G. was not only to the work and an of The applicant suffered and to The and endured have been numerous and and have her of to and the to the of her life with be in of the by the . these the in of the claim by the applicant, G., and the to pay a monthly allowance to the applicant, equivalent to the minimum living . . .
Previous articleNext article FreeThe Structural Function of the Sixth Amendment Right to Counsel of ChoiceJohn RappaportJohn Rappaport Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreThe Sixth Amendment guarantees âthe accused,â â[i]n all criminal prosecutions,â âthe Assistance of Counsel for his defence.â1 The right to court-appointed, publicly funded counsel this language calls to mind today is a recent invention.2 The âroot meaningâ of the Sixth Amendmentâs Counsel Clause, the Supreme Court has stressedâthe one with ties to the founding traditionâis the right to retain counsel of oneâs choice.3 Yet until just last Term, no criminal defendant had ever persuaded the Court to reverse a conviction solely on counsel-of-choice grounds; many had tried in vain. I consider in this article whether there is any satisfying, functional account that can explain the disjuncture between what the Court says about the right to counsel of choice and what it does when presented with an asserted violation of that right.The leading academic and judicial theories justify the right to counsel of choice either as securing the effective assistance of counsel, and thus a fair trial, or as a facet of the defendantâs prerogative to control his own defense. These theories, howeverâgrounded in majestic-sounding notions of fairness and autonomy, respectivelyâstruggle to explain counsel-of-choice doctrine. For one thing, indigent defendantsâwho number more than four out of every fiveâsimply have no right to choose their counsel at all. And while criminal procedure rights are seldom absolute, balancing the defendantâs fairness and autonomy interests against the governmentâs countervailing needs cannot explain the pattern of Court decisions in anything but the most ad hoc manner. Seemingly unremarkable governmental interests prevail while a stronger one faltered this past Term.My claim is that something very different makes sense of the Supreme Courtâs counsel-of-choice decisions. The failure of the leading theories, therefore, does not condemn the doctrine to incoherence. The right to counsel of choice, I argue, functions not as a powerful individual entitlement, as much of the judicial and scholarly writing suggests, but rather as a weak, system-level safeguard against socialization of the criminal defense bar. I use âsocializationâ here to refer to âthe action or process of bringingâ an institution âunder state ownership or public controlââthat is, not in the sense of social psychology but rather the political theory of socialism.4 Only when the government advances a theory for restraining defendant choice that, if accepted, would allow it to strangle the private defense bar and socialize criminal defense does this antisocialization principle require that the right to counsel of choice prevail. This means that even a weak governmental interestâlike a judgeâs desire to push a case to trial quicklyâcan overcome the right as long as that interest is meaningfully bounded in its reach across the criminal docket. But it also means that a law requiring all defendants to use court-appointed counselâmandating a socialized defense barâwould violate the Sixth Amendment despite its equality-promoting effects.An antisocialization principle explains, in particularâfar better than a theory grounded in individual fairness or autonomyâlast Termâs counsel-of-choice decision, Luis v United States,5 in which the Court for the first time found a stand-alone counsel-of-choice violation. The defendant in Luis was charged with health care fraud of around $45 million, almost all of which she had already spent. Seeking to preserve the $2 million remaining in the defendantâs possession, which would be necessary to pay restitution and criminal penalties if the defendant were convicted, the government obtained a pretrial order prohibiting the defendant from dissipating her assets. This included the defendantâs âuntaintedâ assetsâassets not traceable to her alleged crimesâwhich the defendant wished to spend to mount her criminal defense.6Reversing the Eleventh Circuit Court of Appeals, a fractured Supreme Court held that the trial courtâs order violated the defendantâs Sixth Amendment right to counsel of choice. Justice Breyer announced the Courtâs judgment in a four-Justice plurality opinion, joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor. Justice Thomas concurred in the judgment, resting on a textual and historical analysis. Justice Kennedy, joined by Justice Alito, dissented, finding the case indistinguishable from precedent that had rebuffed similar counsel-of-choice claims. Justice Kagan also dissented, questioning whether that same precedent had been correctly decided.An antisocialization theoryâbut neither fairness nor autonomyâcogently distinguishes Luis from all of the cases in which the Court rejected counsel-of-choice claims. That includes the two famous and closely related precedents the Justices in the majority strained to differentiate in Luis,7 ultimately relying on unpersuasive statutory and historical formalisms that I will examine. Antisocialization can also begin to explain (though not necessarily justify) the complete denial of the counsel-of-choice right to indigent criminal defendants, a disquieting feature of the doctrine in light of equal-protection principles.I explore these issues below. Part I introduces the leading theories courts and commentators have developed to justify the right to counsel of choice. It then exposes the inability of these theories to explain the doctrine. Part II demonstrates how an antisocialization theory better describes the law. In the tradition of criminal procedure scholarship seeking theories that reconcile the Courtâs decisions,8 I do not argue that antisocialization ought to drive the doctrine; my project is positive, not normative. I seek to explain the law, not to justify it. Nevertheless, I do develop in Part II a plausible normative defense for the antisocialization theory in order to bolster my descriptive claim. The defense is sufficient to persuade me that Luis was correctly decided. Were I to craft my own justification for the counsel-of-choice right, however, it might well be markedly more robust.My argument is not that antisocialization is the only fathomable theory that explains the doctrine. It is possible, for example, that counsel-of-choice doctrine tracks historical understandings of the right. Yet neither the Justices nor commentators have shown this to be generally true, leaving the burden of proof, for the time being, on the historical theoryâs would-be proponents. I am skeptical, though, I will add, that a historical theory would be as useful as the functional theory I explicate here, confronting, as it must, the familiar problem of what to do when formal materials (i.e., historical understandings) run out.9In Part III, in lieu of a traditional conclusion, I step outside the Sixth Amendment to critique counsel-of-choice doctrine from an external perspective. The doctrine itself is young and undertheorized, and much remains to be worked out in due course. But regardless of how the Court resolves any outstanding Sixth Amendment questions, I argue in Part III that several of its counsel-of-choice precedents may run aground on other, settled constitutional protections. These are conflicts the Court should consider alongside Sixth Amendment principles as it continues to elaborate the right to counsel of choice.I. Difficulties with the Leading Descriptive TheoriesTwo principal theoriesâwhat I call fairness and autonomyâdominate judicial and scholarly thinking on the right to counsel of choice. Yet however well these theories might justify the right as a philosophical matter, they cannot explain counsel-of-choice doctrine. In this part, I describe the fairness and autonomy theories and illustrate the limits of their descriptive power. In particular, I show how these theories are unable cogently to distinguish Luis, in which the Court found a stand-alone violation of the defendantâs right to counsel of choice, from the many cases in which it did not.10A. FairnessProbably the most popular theory of counsel of choice describes the right as helping the defendant secure a fair trial. This fairness theory is outcome-oriented and instrumentalâit regards the right as a means to the ultimate end of fair adjudication in an adversary system. Perhaps more precisely, the fairness theory views the right to counsel of choice as securing the right to effective assistance of counsel, which itself ensures a fair adjudicatory process.The plurality opinion in Luis (to the extent it is theorized at all) seems to rest upon this understanding. Although it acknowledges that the entitlement at stake is that to âcounsel of choice,â the plurality elides that right with the more âfundamentalâ right to counsel itself, without which the defendant, âthough he be not guilty, ⌠faces the danger of conviction because he does not know how to establish his innocence.â11 Elsewhere the Court has ârecognized that the purpose of providing assistance of counsel âis simply to ensure that criminal defendants receive a fair trial,ââ and thus, âwhile the right to select and be represented by oneâs preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant.â12There is a related position, which is sometimes portrayed as independent from the fairness theory, but which seems to me sufficiently related to warrant common treatment. That view regards the right to counsel of choice as facilitating a âmeaningful relationshipâ between counsel and her client. The idea is that a criminal defendant will place greater trust in, and form a better relationship with, a lawyer he has selected rather than one the court has thrust upon him.13 Upon inspection, however, most formulations of the âmeaningful relationshipâ position are grounded in the belief that a better attorney-client relationship will enable a stronger defense.14 The relationship is typically not thought to be valuable in its own right.Some argue that good attorney-client relationships help legitimize case outcomesâthat defendants will accept their fate more readily if they believe they received zealous representation from counsel they selected.15 To the extent the outcomes being legitimized are substantively fair, this seems reasonable to me, though not meaningfully distinct from the fairness theory itself. To the extent that unfair outcomes will appear legitimate, it is far less clear that this plausibly justifies the right.B. AutonomyA second strand of legal thoughtâabsent in Luisâmaintains that the right to counsel of choice has intrinsic value as an aspect of the criminal defendantâs individual autonomy and control over his own defense. Unlike the fairness theory, this autonomy theory is not outcome-oriented; it does not depend on an assumption or prediction about how counsel will affect the fairness or result of the defendantâs proceedings. The right to counsel of choice, on this view, is valuable for its own sake, not because of the results itâs thought to produce.16The Supreme Courtâs opinion in Gonzalez-Lopez v United States17 exemplifies the autonomy position. The Sixth Amendment âcommands,â the Court admonished in Gonzalez-Lopez, ânot that a trial be fair, but that a particular guarantee of fairness be providedâto wit, that the accused be defended by the counsel he believes to be best.â18 This âright to select counsel of oneâs choice,â the Court continued, âhas never been derived from the Sixth Amendmentâs purpose of ensuring a fair trialâ and should not be confused with the âright to effective counsel.â19 It âreflects constitutional protection of the defendantâs free choice independent of concern for the objective fairness of the proceeding.â20Much scholarly commentary on the right to counsel of choice accords with this view, agreeing that âthe most important decision a defendant makes in shaping his defense is his selection of an attorney.â21 The attorney acts, among other things, as conduit for the defendantâs âcommunicative activity in the public forum of the courtroomâ; respect for the defendantâs choice of counsel is thus âârespect for the individualââ himself.22 One commentator, analogizing to the right to self-representation, aptly quoted the Courtâs sharp language from that context: âAn unwanted counsel ârepresentsâ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed by the Constitution, for, in a very real sense, it is not his defense.â23C. The Theoriesâ Descriptive ShortcomingsThe fairness and autonomy theories for the right to counsel of choice are perfectly lucid as a philosophical matter. What they lack, however, is any real explanatory power. If the theories did explain the doctrine, they would be able to distinguish Luis, in which the Court found a counsel-of-choice violation, from the many cases in which it did not. Yet as I show in this section, neither theory is up to this task. Specifically, neither theory is able persuasively to differentiate Luis from three sets of counsel-of-choice precedents that capture most, if not all, of the Supreme Courtâs work in this domain: (1) cases involving the inherent powers of the trial court to control litigation; (2) fee-forfeiture cases involving âtaintedâ (rather than âuntaintedâ) assets; and (3) cases involving indigent criminal defendants.1. Inherent powersMundane decisions courts make in the course of criminal litigation, or even antecedent choices regarding judicial administration, can have the effect of denying a criminal defendant his first-choice aide. Consider three examples. In one case, the court denies a midtrial continuance necessary to accommodate the desired attorneyâs schedule. In another, it prohibits counsel from representing the defendant alongside two of his codefendants, notwithstanding conflict-of-interest waivers from all of the defendants concerned. And in the third, it simply enforces court rules barring practice by nonlawyers, disbarred lawyers, and lawyers from out of state.In none of these cases, the Court has said, does the trial court violate the defendantâs right to counsel of choice.24 But the trial courtâs actions in each instance certainly implicate the defendantâs fairness and autonomy interests. The defendant who was denied a continuance, for example, argued that the lawyer assigned to him had not zealously represented his interests.25 Disagreeing, the Court denied his claim and expressly rejected the lower courtâs position, rooted in the fairness theory, that the right to counsel of choice safeguards a âmeaningful relationshipâ between the defendant and his attorney.26 Likewise, deciding to roll the dice with a lay representative27 or one subject to a potential conflict of interest28 would seem to fall squarely within the autonomy-premised right to control oneâs defense. This is the same interest, notably, that supports the right to self-representation, which requires the trial court to let an uneducated defendant represent himself.29 At the very least, these outcomes are difficult to reconcile with the type of robust individual protection the Courtâs âroot meaningâ language implies.Of course, observing that the right fails in some cases to protect the defendantâs interestsâwhether rooted in fairness or autonomyâmay suggest nothing more than that those interests were outweighed by the governmentâs countervailing needs through a process of interest-balancing. Yet if counsel-of-choice doctrine reflects a weighing of fairness or autonomy interests, on the one hand, and government need, on the other, we would expect the government to prevail when it matters most and lose when it matters leastâespecially as the defendantsâ interests seem roughly equivalent across the cases.30The doctrine does not line up this way, however. This is a point that was harder to see before Luis, because the governmentâs interests had prevailed in every case. That they fell short in Luis suggestsâif the doctrine indeed reflects a balance of the defendantâs fairness or autonomy interests against state prerogativesâthat the government interest in Luis was weaker than in all the prior cases. But that is a difficult position to maintain. In the earlier cases, the government won by asserting interests such as the âgreat deal of latitudeâ necessary âin scheduling trials,â31 the desire to ensure that âlegal proceedings appear fair to all who observe them,â32 and âthe legitimate wish of district courts that their judgments remain intact on appeal.â33 In Luis, it had what the Court has elsewhere characterized as a âstrong governmental interest in obtaining full recovery of all forfeitable assets,â34 which aims to punish and deter serious crimes.35 If there is a theory as to why that âstrong governmental interestâ is actually weaker than the trial courtâs interest in controlling litigation by, say, denying a continuance, the Court has never disclosed it.The point is not that balancing is irrelevant, or in no way enhances the explanatory power of the leading theories. Rather, the point is that, to transcend simplistic, ad hoc explanations, balancingâto borrow from Professor William Stuntzââmust reflect some underlying theoretical structure.â36 Where, as here, the interests on each side of the balance are neither trivial nor overwhelming, âbalancing without structure explains all results equally well; it is not so much a positive theory as a confession that no positive theory exists.â37 âThe real challenge,â I agree with Stuntz, âis to explain why the balances are struck as they are in particular cases, and to do so in a way that allows one to assess, at least in broad terms, whether the doctrine is internally coherent.â38 Proponents of the fairness and autonomy theories have produced no such explanation, and I am doubtful that they can.2. of fee-forfeiture cases the Court in the issues it in In v United the Court held that the Sixth Amendment to of âtaintedâ traceable to criminal even when the defendant to spend the to pay the lawyers who defended The same the Court in United v for a pretrial order the government are and Courtâs (1) though in the defendantâs possession, are ânot and (2) the defendant has Sixth Amendment right to spend for by an even if those are the only way that that defendant will be able to retain the attorney of his way, defendants have Sixth Amendment right to choose their and a defendant are as it will not be forfeitable until by which time the defense will have an interest in Yet through a statutory in the in the United at the time of the criminal the government a claim to the to the And the pretrial order in of course, long before to pretrial of the defendant It is, in other a on the defendantâs protect its at trial and protect the interest in full recovery of any seems to that the of with which a criminal defendant to pay his attorney on the fairness and autonomy interests the right to counsel of choice is to or at least less the defendant may be to with counsel and defense his to with the in an and him of some control over his own defense. If the fairness and autonomy theories are to explain these cases, therefore, it be because the âstrong governmental interest in obtaining full recovery of all forfeitable the defendantsâ And in this does not seem a The principal is how to reconcile these earlier cases with the defendantâs in the fairness nor the autonomy theory explains why the Court the result in that between and on the that the of but in Luis the was does that affect the Sixth Amendment the fairness and autonomy an matter, whether the are does not affect the defendantâs fairness and autonomy interests. interests in controlling her defense and obtaining a fair adjudication are the same regardless of what of she to The explanation, if there is be that the governmentâs argument for is stronger than for assets. The Luis plurality can be to this position. however, is least to one in of a functional plurality characterized the between and as âthe between what is and what is the statutory the plurality to to the government at the time the is The same is not true, it of her the defendant before trial, claim that the is free and This the plurality to the governmentâs interest in of a criminal or restitution as in to the right to counsel of choice, from the of a fair, effective criminal between and cannot the the plurality upon while it is that the government does not own forfeitable before the same is of forfeitable assets. What the Court calls âtaintedâ all, only defendant ownership of either with the only a What the pretrial order in is that the defendantâs were not that they were The in that case to be forfeitable because they were but that does not that forfeitable for some other as to for already of a different constitutional way, to the government can but not is to the The purpose of the either to whether the are the defendantâs or are forfeitable because the defendant a trial, when the are the to this is The the Court thought âthe up until conviction was simply that they be upon a of the same here, with respect to the the Luis plurality to to but not the âThe purpose is to defendants from by their to it does however, the time at which to forfeitable to the is it clear why statutory of is to a Sixth Amendment analysis. If only to that is simply a of It is to that, if to the plurality would its But that is what the of its because is âthe to as among criminal defendants who are in To borrow an from Justice a who million and million in a If he his on and and then needs for defense counsel, out of the government can the But if he the he can use the to pay an This is âthe and the defendantâs legal in the two of and the opinion, I should add, no Thomas that the of the Counsel the defendantâs right to spend his to a defense that that right necessarily some on the governmentâs to the defendantâs before and that the practice pretrial of but not that necessary are several with Justice position for my Thomas expressly any interest in an that functional for the it practice is however much sense it it is far from clear that Justice Thomas advances a theory of the Sixth Amendment at all, as to a theory about the due process to the of any assets. Thomas that a defendantâs may not be before trial whether he to spend on a defense attorney or something This that the Sixth Amendment itself is actually even if historical practice does reconcile Luis with the prior cases, Justice Thomas makes no to show that it also explains the Courtâs other counsel-of-choice to that of law at all. I at the it remains that all of the Courtâs decisions to with historical but I am and neither the Court nor commentators have the work to it. because the defendantâs interest in counsel of choice is the same regardless whether he to pay his attorney with or the fairness and autonomy theories can explain the cases only if the governmentâs side of the balance is in the case than in the is, however, no good functional account of why that would be The cases thus from the explanatory power of these leading theories of the that indigent criminal defendants might retain a Sixth Amendment right to counsel of choice has to the a is one indigent defendants have no right to counsel of If the theories are this be because in counsel to these defendants is not does not on autonomy interests, or is by governmental some of the of these however, are weaker than they may at first I each one in what would have to the defendant in Luis had the Court against her and her to pay is no that she would have been through trial by âthe of course not. the court would have an attorney to represent a public or a private attorney funded the Justice an have to the defendant a fairness only if there were an unacceptable that counsel would to the effective assistance of counsel necessary to make the trial of two it may be that the defendant to with counsel would not have her right to a fair trial, and thus should not have been to violate her right to counsel of choice. the Court has rejected any that counsel are or less effective than be the Court has the on a an matter, this is not an