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2005 March - April

How Litigation Can Lead to Substantial Relief for Clients and Significant Social Change

By Florence Wagman Roisman

Defending the Right to a Home: The Power of Anti-Poverty Lawyers, by Beth Harris, is a social scientists examination of five poverty law-impact cases seeking adequate housing for low-income families. The cases (familiar to many readers of Clearinghouse Review) succeeded in bringing new benefits to low-income families despite being litigated during years when support for such programs was receding. Drawing advocacy lessons from the cases, the book is a valuable resource in mounting effective campaigns to bring about justice for low-income clients.

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Using Section 1983 to Raise Constitutional Claims in Garden-Variety Cases

By Robert P. Capistrano

Constitutional claims can lurk in garden-variety legal aid cases. Raising these claims against state or local government actors through 42 U.S.C. § 1983 can change the other side's perception of a case, alter power relations between the parties, widen the client's options, hasten a solution, and even open avenues for systemic change. Did the offending person act under color of state law? Should you sue the entity or the individual? Is liability personal or official? Is qualified immunity a defense? Assess these and other factors, and, if appropriate, "make it a federal case."

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Using Section 1983 to Enforce Federal Laws

By Jane Perkins

Private enforcement of federal statutes through Section 1983 has become more complicated since the U.S. Supreme Court decided Gonzaga University v. Doe. State attorneys now raise new arguments that Medicaid, housing, food stamp, and other federal acts may not be enforced through Section 1983, and some lower courts are accepting these arguments. Attorneys who represent the beneficiaries of federal statutes can take several steps to assist their clients in successfully enforcing their federal rights through Section 1983.

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Preemption as an Alternative to Section 1983

By Lauren K. Saunders

Poverty law advocates have long used Section 1983 as their primary vehicle to raise claims in federal court, but, since the U.S. Supreme Court decision in Gonzaga University v. Doe, relying on Section 1983 to assert these claims has been more difficult. The supremacy clause of the Constitution offers an alternative; advocates may assert in federal court that federal law preempts state statutes, regulations, or other policies that harm low-income clients. Neither damages nor attorney fees are available under preemption claims; however, this may make judges more open to consider claims on behalf of low-income clients. Moreover, the Supreme Court has long recognized the preemption cause of action.

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