This Note addresses the question left unanswered in Harbury: whether these denial of access-to-courts cases, which Justice Souter termed "backward-looking" access claims, are valid exercises of a constitutional right. Backward-looking access claims such as Harbury's differ from traditional denial of access-to-courts claims in that their aim is not to remove impediments to bringing causes of action in the future. Rather, backward-looking access claims allege that a suit that could have been filed in the past was not brought or was not litigated effectively, because access to the courts was at that time denied or obstructed by government officials. These cases look "backward to a time when specific litigation ended poorly, or could not have commenced, or could have produced a remedy [now] unobtainable." The novelty of these cases lies in the fact that until very recently, the right of access to courts had always been conceived as providing only forward-looking rather than retrospective relief. More specifically, within this category of cases, this Note seeks to answer the following question: If the government intentionally lied to you sometime in the past and either prevented you from filing a claim or from litigating a claim effectively, can you obtain relief in the present for a denial of access to courts? And if so, what are the contours of such a right? This Note argues that the Supreme Court, as it has done with forward-looking prisoner's cases, should carve out a body of jurisprudence to allow for denial-of-access-to-courts claims in cases where official fraud or conspiracy has thwarted a potential cause of action. Resolution of the backward-looking access issue is particularly pressing today given current anxiety over the federal government's increasing power to regulate national security and the relative obscurity in which it is able to do so. Part I describes the current state of Supreme Court jurisprudence on and the jurisprudential gaps in the right of access to courts and illustrates the need for greater guidance from the Court specifically regarding intentional backward-looking access claims. Part II argues in favor of recognizing backward-looking access-to-courts claims by examining constitutional tort theory as well as Supreme Court jurisprudence on forward-looking access cases. It demonstrates that not only do the policies underlying constitutional torts provide particularly compelling reasons for allowing backward-looking access claims, but also these claims implicate few of the concerns typically attendant to constitutional tort litigation. Finally, by analyzing the history of the access right as well as lower court opinions governing backward-looking claims, Part III offers a workable framework for addressing these causes of action, leading courts towards a more uniform method of adjudication.
Una A. Kim,
Government Corruption and the Right of Access to Courts,
Mich. L. Rev.
Available at: http://repository.law.umich.edu/mlr/vol103/iss3/3