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Creating a Good Casebook on Poverty Law

Review of Juliet M. Brodie et al., Poverty Law, Policy, and Practice

By Peter Edelman

Creating a good casebook on poverty law is really hard. This difficulty is no doubt why we have not seen one in quite a while. Even as we struggle toward greater success in reducing poverty, we also know more about what needs to be done, which in turn means more material to be taught. Equally important, economic and social trends have made the challenge of reducing poverty much more complex, which again means a lengthier and more complicated list of problems and possible policies for students to understand. Many of the solutions are less clear than ever or are clear but difficult to effectuate. Politics loom over almost all of it. A casebook in the 1960s would have been a much thinner volume.

Wrestling everything to the ground in a way that is manageable in the classroom is a tall order. Juliet M. Brodie, Claire Pastore, Ezra Rosser, and Jeffrey Selbin have succeeded, or at least have succeeded to a degree that I would not have thought possible. Between the covers of this 800-page book and its accompanying 155-page teacher’s manual are materials on just about every facet of relevant policy and cases, often spiced with differing points of view about both the problems and the solutions. Poverty Law, Policy, and Practice is a major achievement.1

Of course the casebook does not work on autopilot. A student can learn a great deal from reading it, to be sure, but it needs a professor to go along with it (thankfully, or I might be out of a job.) The professor’s role is to tie the parts together, imparting a sense of the history, the substance, the politics, and the possible roles of the future lawyer. This excellent casebook supplies the ingredients; the professor and the students have to bake the cake.

The Changing Context of Poverty Law Practice

Because so much has changed since the 1960s, the cake is much bigger, although (one might say) it is also less likely to get completely baked. The poverty lawyers of the 1960s regularly found a federal court system and many state courts that were responsive to their structural litigation. Those poverty lawyers worked in partnership with communities and community organizers to identify subjects for their lawsuits. But the lawyers of the 1970s and their clients saw the withdrawal of the Supreme Court from the field. Today state constitutions remain a source of relief in parts of the country and the federal courts continue to be appropriate venues for cases based on statutes, but courts are on the whole less welcoming to impact litigation than they were in the past.

Poverty Law, Policy, and Practice is a major achievement.

Because of the change in the courts, poverty lawyers now have to be policy lawyers, too. Yet, in general, we do not teach our students about policy lawyering. We teach legislation in our law schools, and some of us have legislation clinics, but we fall short in immersing our students in the strategies and tactics associated with getting laws passed and regulations promulgated. I have the advantage of teaching a poverty seminar that goes for the entire year, and I always have a lobbyist and an organizer as guests to expose the students to at least a brief taste of what policy lawyering is about. The casebook has some of the material needed to teach about policy lawyering. It displays many statutes—some we like and some we do not—and we can discuss how they came to be enacted. We can discuss whether they move things forward or backward. We can ask how we go about the work of improving existing statutes and getting new ones enacted. The book contains materials to build a class on policy lawyering with a policy-advocacy segment in every substantive area.

Access to Justice

Litigation on behalf of individual clients was and is vital. But much has changed, beyond the diminished responsiveness of the courts in many parts of the country. Federally funded legal services offices cannot do class actions or legislative advocacy. Pro se representation in high-volume urban courts is the regular order. In general, only 20 percent of low-income people with legal needs are able to get a lawyer.

The casebook covers this crisis. Access-to-justice issues are gaining visibility. There has been a (so far modest) positive response from judicial and bar leaders and state legislators. Law schools need to get involved, too, and not just in classes on poverty. Entire law school student bodies need to understand that we have an access-to-justice crisis in our nation. The broader public, so far as it knows anything, typically thinks that Gideon v. Wainwright guarantees everyone a lawyer and not just in criminal court.2 But even Gideon is honored only in the breach in too much of the nation, and of course it has no bearing on landlord-tenant courts or other civil matters.

Not to overstate it, but there is some good news. While federally funded civil legal services have lost substantial funding over the past 30-plus years, state legislatures, law firms and individual private practitioners, and (until recently) IOLTA (Interest on Lawyers Trust Accounts) more than made up for the losses. Funding is still a fraction of what it should be and is particularly a problem in less populated states, but the total funding for legal aid is $1.3 billion. Equally important, pro bono representation by private practitioners has grown impressively, although it could be much more extensive. Legal aid lawyers in the 1960s tended to spurn help from private practitioners because of a perceived lack of knowledge and ideological difference. We have largely progressed beyond this bias. Students need to understand this context, and the book offers material to make this possible.

The book contains materials to build a class on policy lawyering with a policy-advocacy segment in every substantive area.

The Full Picture of Poverty

Just as change has come to what poverty lawyers do and how clients access legal services, the issues about poverty itself have changed markedly, too. Therefore what has to be taught has changed as well.

The biggest change is the flood of low-wage work, emanating from globalization, technological change, and the decline of unions. At last count, 106 million people in our country have incomes below twice the poverty line, or below $39,000 for a family of three. Half the jobs in the country pay less than $35,000 annually (assuming the person has the job full-time and all year). A quarter pay less than the poverty line for a family of four, or less than $24,000 a year. These wages have barely kept up with inflation, in real terms growing only about 7 percent in the past 40 years, or a fifth of a percent a year. No wonder there is so much anger in our politics.

Major changes in family structure have meant that single mothers struggle to support their families in the low-wage economy. A household that has children and only one possible worker is in deep trouble. Poverty for single mothers with children is well over 40 percent, regardless of race—the highest poverty rate for any demographic group. Lacking the wherewithal to pay for quality child care, many women must leave their children in circumstances that are downright dangerous.

Public schools in inner cities perform abominably at a time when a high school diploma no longer suffices to get a decent job. Postsecondary education is now essential for the better jobs of the 21st century. We are leaving millions of young people without the possibility of getting a well-paying job—a situation that is disproportionately worse for young men and women of color.

Mass incarceration has ruined the lives of millions of young men, mainly young men of color. Young men who grow up in poverty are far more likely to run afoul of the law enforcement system. Once out of prison, they face barriers that condemn them to further poverty that is likely to be lifelong.

Deep poverty—income below half the poverty line—has doubled over the past 40 years largely because of the effects of the 1996 welfare law. Apart from its low benefits and the onerous conditions and prying interrogations that come with obtaining benefits, Temporary Assistance for Needy Families (TANF) has largely disappeared from most of our states. Before 1996, TANF’s predecessor, Aid to Families with Dependent Children, flawed as it was, aided 68 percent of children living in families with incomes below the poverty line. Now TANF reaches just 25 percent. Mississippi pays a benefit at 11 percent of the poverty line, which is what it has always done, but now it reaches just 12 percent of children in families that are poor. Wyoming has 800 people on the rolls—5 percent of children living in families in poverty in the state. More than half the states accord TANF to fewer than 20 percent of children in poor families in their state. As a consequence, six million people in the United States have no income other than food stamps. Food stamps afford a family about a third of the income needed to get out of poverty.

Race and gender discrimination—perhaps more structural or implicit than in the past—remain significant problems that affect people’s lives and infect our politics. Whether in schools, housing, employment, law enforcement, or the administration of public benefits, race plays a role. Women—especially women of color—remain second-
class citizens in many ways. Women (and their children) are the disproportionate possessors of low-wage work and the disproportionate victims of deep poverty.

The huge growth in income and wealth inequality over the last 40 years endangers our economy and impedes progress at the low-income end of the continuum. Our democracy is in danger from the political power of those at the top and the economic exclusion of those at the bottom.

All of these issues are appropriate subjects for a class in poverty law and policy, and the casebook addresses many of them. The chapter on low-wage work is indicative of the change that has occurred outside the academy. Until fairly recently, legal aid lawyers and law professors alike tended not to do very much about work issues. The establishment, with union support, of employment law centers and the leadership of people such as Sharon Dietrich at Community Legal Services of Philadelphia have made a big difference, and the authors have taken note. Even so, the teachers who use the book need to supply the glue. Why so many low-wage workers? Where do unions fit into the picture (or not)? What are the possible ways to raise incomes, and what do we need to do to make those things happen?

Law students should be exposed to the issues associated with concentrated poverty and the roles that lawyers can play.

The chapter on criminalization is especially good. It covers mass incarceration, and this is vital, but it goes much further, covering both the ways in which public benefits have been criminalized and the more familiar but equally consequential ways in which laws condemn ex-offenders to further poverty. The solutions are implied, but here, too, class discussion and seminar papers need to delve not only into the solutions but also into how to bring them about.

The chapter on housing is particularly relevant. Housing was certainly a topic of the 1960s and brings to mind the marvelous work Gary Bellow did in Boston and the work of Florence Roisman, whose great case, Javins v. First National Realty Corporation, is contained in the book.3 Housing fell off the radar screen of national policy in the Reagan years, when new investment in affordable housing was cut so precipitously that (I surmise) advocates fell silent in surrender to the hopelessness of winning any policy battles, at least on the national level. Affordable housing, always a problem, has now become a crisis. A minimum-wage worker now cannot afford the fair market rent for a two-bedroom apartment in any state in the country. The authors are wise in putting housing front and center.

Room for Improvement

Not everything in the book is done as well as I would like. In particular, the question of poverty and place—the consequences that flow from too many low-income people living in the same place—gets short shrift, and the discussion of it appears in an odd mishmash of a chapter entitled “Markets.” That heading encompasses a section on capitalism, a limited part on community economic development, a portion on access to credit and financial services, some material on charity, and a mention of faith-based efforts.

Perhaps the greatest failure in American policy on poverty (along with the extreme poverty caused by the virtual ending of welfare) is with regard to concentrated poverty. This is the persistent poverty and the intergenerational poverty that are not just the toughest to solve but also the most politicized. Concentrated poverty is not only the poverty of the inner city but also the rural poverty of Appalachia, Indian reservations, the Mississippi Delta, Alabama’s Black Belt, and the colonias in Texas. It is the poverty that will not yield unless everything—such as jobs, education, violence and community safety, housing, health and mental health, and transportation—is tackled at once.

Maybe ending concentrated poverty seems to be the business of people other than lawyers, and of course any given lawyer (or any given professional) cannot play all of the lawyering roles that neighborhood revitalization entails. “Community lawyering” is the focus of a few new clinics in some law schools. The term may mean different things to different people, but the common denominator seems to lie at the intersection of poverty and place. Law students should be exposed to the issues associated with concentrated poverty and the roles that lawyers can play, representing residents and working with community groups on aspects of community revitalization.

In my poverty seminar I assign the students to work in groups on a problem that asks them to develop and present in class a strategic plan for an urban or rural area of concentrated poverty. They are implementing a federal grant that can pay for some of what they propose, and I challenge them to come up with other plausible sources of funds. Since their funding will be inadequate no matter what, they have to make decisions about priorities and defend them in their presentation. The students tell me every year that this exercise is a high point of the course.

A similar omission that concerns me is in the education chapter. In general it is thin on the ingredients (and controversial ideas) of education reform. That may be simply beyond what a course in poverty can cover. But a poverty course should cover this question at least: How do we keep young people, especially those in inner cities, in school and on pathways to good jobs? The problem is much larger than the cradle-
to-prison pipeline, troubling as that is. The problem is the cradle-to-nowhere pipeline, which captures young men and young women both. It is a community problem as well as an educational problem, and it is a major passageway to intergenerational poverty. Is it a problem in which lawyers can play a role? Lawyers are present in all public policy, and law students should understand that pathways through adolescence for low-income youth, and especially youth of color, play a major role in handing poverty from one generation to the next.

My other concerns are mainly matters of emphasis that can easily be highlighted by the teaching that accompanies the book. It discusses race and poverty at a number of points, including a classic selection from William Julius Wilson’s writing, but it does not nail to my full satisfaction the extent to which racial attitudes still lie behind the politics of poverty. There is a companion irony—namely, that the largest group in poverty is white, about 44 percent of the poor. Numerically, whites would benefit more from successful antipoverty policies than people of color (although people of color would benefit disproportionately since they are disproportionately represented in the ranks of the poor). Putting these facts in front of the students and trying to unpack them would be a useful effort.

Gender, especially women with children, also comes in for attention in the book, but again it seems to me that the book does not hit the nail on the head. Women and children are the major losers as to both low-wage jobs and the near death of welfare. The raw material is in the book, especially Jason De Parle’s New York Times piece, which begins the section on welfare, but the teacher will need to bring out the saliency of the material.4

My last concern (and again, the professor has to have something to do) is that the book does not convey explicitly and with illustrations what legal aid lawyers actually do. The section on eviction defense in the housing chapter was a welcome discovery as I was reading the book. Many people who teach about poverty have instructive histories as legal aid lawyers and find it obvious and easy to teach students about what a legal aid lawyer does. I do not bring that experience to the classroom, so I bring in two legal aid lawyers in the course of the year who take the students through a welfare case and an eviction case. I would have liked a little more about real-life lawyering in the book, but I may now be coming to the point of being too picky.

In short, this is a terrific book. Use it.

Peter Edelman

Professor of Law

Georgetown Law Center

600 New Jersey Ave. NW

Washington, DC 20001

202.662.9074
edelman@law.georgetown.edu

1 Juliet M. Brodie et al., Poverty Law, Policy, and Practice (New York: Wolters Kluwer Law & Business, 2014). 840 Pages.

2 See Gideon v. Wainwright, 372 U.S. 335 (1963).

3 See Javins v. First National Realty Corporation, 428 F.2d 1071 (D.C. Cir. 1970).

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