3. “Changing the Landscape: A Little More Audacity of Hope, Please” by Marie A. Failinger

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March 13th, 2013

Reading the exchange between Professor Wax and Professor Tani,[1] I was struck by how our discussions about teaching poverty law resemble church-state or other discussions I have witnessed over the years, since I also participate in church-state scholarship.  These are discussions among insiders who largely agree about what the landscape looks like.  The points of disagreement fall on a small piece of geography within that landscape.

Starting with the landscape I believe Wax and Tani assume, I will comment on a couple of their disagreements, but I think it would help to press whether that landscape is fixed or whether it can be changed, even bulldozed.  Wax and Tani will not necessarily agree precisely on this landscape, but I venture a description nonetheless: poverty law is marginalized in the legal academy.[2]  Neither students nor professors think it is a critical area for students to master,[3] though for some small percentage of the student body, it is their life’s work and their passion.  Most students may not have even encountered the poor or their issues before they come to law school.  Indeed, for some students, their first clinic client is their first exposure to a real poor person beyond a shared seat on the subway or an encounter in the grocery line.

It is even less likely that law students will have thought about the poor or poverty intellectually, whether through a historical, philosophical, sociological, or any other type of lens.  American universities may care about, for example, literature produced about the poor—Steinbeck’s The Grapes of Wrath or Toni Morrison’s novels come to mind.  At some universities, students will have done service projects involving poverty, whether locally or on a spring break trip to New Orleans or Central America.  However, neither law students nor law faculty will have extensively studied the problems of the poor before law school from any of their disciplinary perspectives, except (again) for that small percentage of students who go into social work, urban education, and other specialized fields.

Yet, as Wax notes, there continue to be poverty law courses in some law schools, although, she implies that it may be treated more like a concession to a faculty member’s personal research interests than a critical part of the curriculum.[4]  In addition to the “hard core” social justice students who count on the class being offered, there will be those students who wander into these courses because they fulfill a requirement, have a good time slot, or focus on some distinct issue that the student has encountered in literature or in life.  I believe those students are likely the exception, and the course is generally not organized with them as the main audience for these issues.

In that landscape, the question Wax and Tani debate is this: if we have only one shot at the students through Poverty Law 101, what is the critical lesson they need to learn about poverty and law?[5]  But a prior question is not fully answered: Why is poverty law an optional, marginalized course in the curriculum?  Alternatively, we might ask, why is the “poverty” aspect of poverty lawyering hidden in the marketing of some clinical programs the way a mother might hide vegetables in the hot dish to make sure the kids will eat them?

There may be a couple of explanations for this failure to embrace a curriculum more focused on social justice for the poor.  One could be the political sentiments of law faculties, many of which still boast a large complement of liberals, but the supposed rabid leftist social justice commitments of these faculties have, in my view, been vastly overstated by the Right.[6]

Although law students as a class are certainly no more liberal than their teachers, the answer to why poverty law is marginalized in the curriculum is probably not to be found in student bodies either.  From my vantage point, it is not a matter of markets or economics.  Even if consumerism is an increasingly strong influence on the curriculum and atmosphere of all law schools, it is unlikely that most law students select their law schools based on either the presence or absence of a poverty law course requirement or emphasis, unless social justice is plastered all over the marketing materials of the school.  Similarly, while skittish university administrators or hard-headed trustees might balk at mission statements or marketing that suggest a particular law school is a “leftie” or “social justice” law school, it is unlikely they would staunchly oppose a single poverty law course.

Another possibility is that poverty law is marginalized because there are no jobs in poverty law, at least these days.  It certainly is true that the law school curriculum is significantly driven by the job market.  Beyond the bar classes necessary for any licensed lawyer to get a job, commercial, corporate, trial advocacy, and intellectual property courses do well in part because students plan to practice in those areas.  This does not explain why other courses that do not yield a particularly large number of jobs seem to do just fine, including those on emerging issues like animal law, assisted reproductive technology, job-neutral courses like jurisprudence, or critical legal studies in some schools.

I am afraid that the answer to why poverty law is a marginalized course in most law schools—like the answer to why the U.S. has such pitifully unsuccessful government programs for the poor generally—is that we, as members of the legal profession, do not care that much about the poor and poverty.  Even if we do, we do not know what to do about poverty.  Maybe we do not care precisely because we do not know if it can be solved.  After all, many people who go to law school likely do so because they like solving problems and improving outcomes.  If students see poverty as unsolvable, why would they invest their time on that issue?  It also may be that we just do not care enough to put in the time required to find a creative solution that would make a significant difference in the lives of the poor.  If that is the case, perhaps it is better to focus on that small group of students who do care and figure out what they need to be the super-lawyers the poor will need for there to be a real difference in the architecture of poverty.

Therein lies the crux of the debate between Wax and Tani about poverty law courses.  Wax powerfully argues that American social and political attempts to conquer poverty have been beset by failure, despite outpourings of intellectual and economic resources since the 1960s to study, manage, and support poor people’s existence and ways out of poverty.[7]  She does an admirably concise job describing this history, though like Tani, I might want to introduce some more nuance into the story.[8]  She and Tani both do a nice job pointing out that there are themes and tensions in the history of poverty law that recur from generation to generation,[9] and Wax introduces some imaginative architectural metaphors to help us understand why poverty law is not as simple as the ideologues from either the Right or the Left would care to paint it.[10]  At the same time, Wax’s catalogue of theories and programs, both liberal and conservative, points to a critical problem in the way both ideologies have approached the issue.  Poverty cannot be “conquered” by either government programs or ideologies of privatization because poverty is not a “thing.”[11]  It is a community of people.  The fact is, individual people are perhaps the most complex organisms on the planet, and communities of people are even more complex, no matter if they are communities of two or three (like marriages and families) or millions (like nation-states).  Communities are difficult, contradictory, dynamic organisms that are too difficult to describe, order, plan for, or control.

Unfortunately, people who earn their living by fixing things, particularly those fixing things using ideas as lawyers do, strive for simplicity.  As legal intellectuals, we strive to identify the One Big Theory that will explain everything and put everything in its place.  The One Perfect Legal Rule will outdo the last Perfect Legal Rule that has been proven inadequate or even perverse.[12]  As legal practitioners, we look for that silver bullet that is going to magically resolve many if not all of our client’s problems——whether it is a large cash settlement for an injured plaintiff, a “not guilty” verdict for a criminal defendant, or a set of welfare laws that will lift the poor out of poverty.

This creates a conundrum that poverty lawyers have debated for decades, and which underlies the Wax-Tani debate as well.  Should poverty lawyers fix the little that they can—e.g., take “service cases” that provide limited relief for the poor in discrete applications of specific legal rules?  Most poverty lawyers or poverty clinicians might tell you that this  approach, which focuses only on how the law applies to your case, is tantamount to putting one’s finger in a dike that is about to burst.  Instead, perhaps lawyers should aim for a comprehensive fix for a broken system, knowing that they will likely fail and may even possibly make things worse by destroying clients’ hope for something better.[13]  If poverty lawyers indeed are going for the comprehensive fix, what does a competent poverty lawyer need to learn in law school?

Wax and Tani debate whether history is critical to the toolbox of poverty lawyers, or whether that time——in a course that is likely to span the ABA-required 2100 minutes at best——is better spent on “understand[ing] the sources and causes of deprivation, and . . . think[ing] carefully about the full range of instruments and tactics to address it.”[14]  My position is “yes and yes and no.”  Yes, our students desperately need to know what is going on from both sides of the struggle.  History is a critical tool for those who influence, write, pass, and implement the laws.  Law students need to understand how time and time again, political and social forces have stereotyped, punished, disrespected, and marginalized the poor, piling on to the problems they face.  They need to be able to spot an apparently neutral law which, in its structure and outcomes, embodies a social attitude that is destined, if not designed, to defeat poor people spiritually and materially.  From these, they need to distinguish those programs and laws that do not do so, or at least do so less violently.

From the side of the client, the sources and causes of poverty are important for poverty lawyers to understand: like anything fixable, even a plumbing leak, if lawyers do not know where the problem is coming from, they willl flounder around and make a mess before they can make any improvements.  Studies, whether empirical or philosophical, can get us part of the way to understanding why a client is poor, but every individual client will overflow and explode every abstract statement and prediction we might make about poverty.

However, a major point on which Wax and Tani seem to agree is that we cannot teach all of this in Poverty Law 101.[15]  No faculty member is going to have the expertise, and no course is going to have the time, even if a student dares to take it.  Indeed, we might argue that a poverty lawyer could not learn everything he or she needs to know to be competent in a professional lifetime if he or she is actually doing anything on the ground to help the poor rather than merely studying them.  We might conclude that we may just have to make do—law faculty members will have to teach what they know, whether it is history or social policy, and they may fail to competently understand or teach the economic implications of these decisions.  Students will have to learn what they can and muddle through in the field trying to change the world before they know exactly what world it is that needs changing.

Yet, what happens if we change the landscape?  What, for example, would happen if the American Association of Law Schools (AALS) Poverty Law Section and Clinical Section faculty and all of their fellow travelers would join forces with all of the religiously-affiliated and secular law schools that profess a firm and thorough commitment to social justice?  What if they pushed on the Catholic law schools that acknowledge their church’s preferential option for the poor? What if that cabal would ask law schools to make the commitment that Loyola-New Orleans made that every student take a poverty law course or at least one of a menu of courses that includes poverty law themes?[16]  Or even more mind-blowing, what if we could get the ABA to require an introduction to poverty law just as an ethics course has become required post-Watergate,[17] as a civics lesson for lawyers?

I push the idea of changing the landscape because I think poverty law and clinical faculty have too easily accepted the assumption that poverty law will always be a marginalized aspect of the legal academy.  If that is the only option, then Professors Wax and Tani are probably correct that we should fight over how we can do our best with the scraps of the student body left to the elective and despair that we cannot teach everything our students should know.

I am not suggesting that we have accepted this marginalization without warrant.  Any number of law schools have attempted to be “social justice” law schools that put the needs of the poor and disadvantaged first, only to founder on the shoals of challenges like admitted student expectations, and demands for national academic recognition that emphasize scholarly production and conferences in more mainstream legal fields.  Even Loyola New Orleans, though it has kept its commitment to a required poverty law course, has moved it to the third year, thereby blunting its impact on impressionable first years.[18]  Other schools have been slow to jump on the Loyola bandwagon; even those law schools founded with high aspirations for social justice have moved closer to the mainstream than the mainstream has moved toward them.[19]

If we could imagine a required poverty law emphasis as a matter of civic competence in law school, what difference would it make?  As one obvious improvement, all of the weight of economics and sociology and public policy and legal history would not have to land on Poverty Law 101.  If students were encountering poverty law in virtually every course they took, from bar courses to internships, they might come to see poverty law as part of the warp and woof of the law, not just a specialization for Legal Services lawyers.  If poor clients were an integral part of the law school experience, from our internships and simulation courses to our lecture series, and not just those lost strangers we saw at the door of the clinic, our whole attitude about what we owe them as lawyers might change.[20]

Indeed, can you imagine a world in which we counseled students to begin studying poverty law before they came to law school?  Can you imagine a world in which we assumed a commitment to teach poverty law to all of our alumni, through CLE programs like those we do in the Legal Scholarship for Equal Justice course in Minnesota, with law students teaching lawyers what they have discovered about local social injustices?[21]

One thing that would happen, I think, is that all of our students would become better citizen-leaders.  Instead of facing an electoral landscape populated by politicians who are elected because they are good at simplifying everything down to a slogan or stereotype, we might see more lawyer-politicians who refused to give in to bashing the poor, or promising quick fixes to their problems.  At the very least, we could teach our students to have the courage to wade into a heated “average Joe” political discussion about welfare or Medicaid or joblessness with the opening, “You know, it’s not quite as simple as all that . . .”

As better citizen-leaders, maybe all lawyers would consider every day how they could make a real difference in the lives of the poor in their own professional practices.  The corporate lawyer, for example, might feel more competent in his understanding about how people unlike him live.  He might thus be more emboldened to ask questions at the board or executive meeting about what effect a certain business decision might have on poor people’s ability to purchase a needed good or service, or to live in a clean environment, or to find an affordable home.  The prosecutor might be empowered to ask whether a system that keeps churning poor and minority defendants in and out of prisons is helping anybody, including the victims of those defendants.

Perhaps with experts in various areas of law converging on these issues, whether in their practice lives, their pro bono work, or just in their daily lives as citizens, the burden of expertise and competence that we want to impose on professional poverty lawyers through Poverty Law 101 would not have to be so heavy.  Maybe they would have help and be freed to acknowledge their limitations.  They could feel good about doing only what one human being is capable of doing to make a difference in the very complicated, very difficult life of another human being, or a community of human beings.

It is an audacious hope.  But seriously——many of us have lived through the Arab Spring, the civil rights movement, the moon landing, even the advent of the Internet.  We are lawyers.  Who are we to say it cannot be done?




* Professor of Law, Hamline University School of Law.

Φ Suggested citation: Marie A. Failinger, Changing the Landscape: A Little More Audacity of Hope, Please, 40 Fordham Urb. L.J. City Square 48 (2012), http://http://urbanlawjournal.com/?p=1198.

        [1].  See Amy L. Wax, Musical Chairs and Tall Buildings: Teaching Poverty Law in the 21st Century, 34 Fordham Urb. L.J. 1363 (2007) [hereinafter Wax, Musical Chairs]; Karen M. Tani, Poverty Law 101: The Law and History of the U.S. Welfare State, 39 Fordham Urb. L.J. City Square 1 (2012), http://urbanlawjournal.com/?p=417; Amy L. Wax, The Limited Utility of History in Poverty Law Education, 39 Fordham Urb. L.J. City Square 93 (2012), http://urbanlawjournal.com/?p=595.

        [2].  See Tani, supra note 1, at 1; Wax, supra note 1, at 1363-64, 1366-69.

        [3].  See Marie A. Failinger, A Home of its Own: The Role of Poverty Law in Furthering Law Schools’ Missions, 34 Fordham Urb. L.J. 1173, 1178-79 (2007).

        [4].  Wax, supra note 1, at 1363-64.

        [5].  See Tani, supra note 1, at 3-7 (discussing the author’s approach to teaching poverty); Wax, supra note 1, at 1384 (discussing the essentials of “any social welfare course”).

        [6].  See e.g. J. Peter Bryne, Academic Freedom and Political Neutrality in Law Schools: An Essay on Structure and Ideology in Professional Education, 43 J. Legal Educ. 315, 331-34 (1993) (addressing and disputing significant parts of a study accusing law school faculty of using law school programs and clinics to promote liberal special interests).

        [7].  See Wax, Musical Chairs, supra note 1, at 1365-69.

        [8].  See Tani, supra note 1, at 8-10.

        [9].  See id. at 3-6 (discussing the cyclical history of combating poverty); Wax, supra note 1, at 1365-69 (discussing the history of anti-poverty laws).

      [10].  See Wax, Musical Chairs, supra note 1, at 1372-1373 (explaining how the game musical chairs can illuminate the structural nature of poverty).

      [11].  See Wax, Musical Chairs, supra note 1, at 1367 (addressing the “growing recognition that poverty is a tangled amalgam of social, behavioral, and economic factors” while discussing how poverty law courses have changed).

      [12].  In religious freedom law, for example, one might argue that the theory of neutrality better explains how the courts should approach Establishment or religious freedom claims than the theory of accommodation, and then try to make all of the “good” cases fit this theory.

      [13].  See Failinger, supra note 3, at 1176-77.

      [14].  Wax, Musical Chairs, supra note 1, at 1368.

      [15].  See Wax, Musical Chairs, supra note 1, at 1368-69 (discussing the wide array of information needed for a proper understanding of poverty law); Tani, supra note 1, at 6-7 (discussing the author’s own perceived short-comings in her course on poverty law);

      [16].  See Academic Regulations Overview, Loyola U. New Orleans, http://2011bulletin.loyno.edu/law/academic-regulations-overview (last visited Oct. 26, 2012).

      [17].  See Mark Curriden, The Lawyers of Watergate: How a ‘3rd Rate Burglary’ Provoked New Standards for Lawyer Ethics, ABA Journal Magazine (Jun. 1, 2012), http://www.abajournal.com/magazine/article/the_lawyers_of_watergate_how_a_3rdrate_burglary_provoked_new_standards/.

      [18].  See Academic Regulations Overview, Loyola U. New Orleans, http://2011bulletin.loyno.edu/law/academic-regulations-overview (last visited Oct. 26, 2012).  Poverty law is a requirement that can be fulfilled by clinical work, pro bono service, or one of several courses, including “Law and Poverty” and the “Law and Poverty Seminar.” Id.  The website describes the “Law and Poverty” course as follows: “This course provides an introduction to the detrimental effects of poverty on society and poor people. It includes a treatment of the history of institutional response to the needs of the economically disadvantaged in the western world. It involves a critical examination of the legal system’s response to the economic, social, and human problems of poverty, particularly in the fields of social security, welfare, unemployment, and worker’s compensation. Special treatment is given to legislative and judicial initiatives in alleviating poverty as it burdens the family, women, and minorities.” General Law, Loyola U. New Orleans, http://2011bulletin.loyno.edu/law/general-law-courses (last visited Oct. 26, 2012).  The course description of the seminar option states that it is “devoted to an in-depth treatment of one or more topics of concern in the area of law and poverty” and that “[t]he exact subjects to be considered will be chosen by the instructor.” Id.

      [19].  The law schools at CUNY and Antioch University are examples of this. See School of Law History, University of the District of Columbia David A. Clarke School of Law, http://www.law.udc.edu/?page=History (last visited Oct. 26, 2012) (describing the low-income focused roots of Antioch University, which later merged with the University of the District of Columbia to form the David A. Clarke School of Law); About, CUNY School of Law, http://www.law.cuny.edu/about.html (last visited Oct. 26, 2012) (discussing the schools emphasis on serving the “underprivileged and disempowered”).

      [20].  I have catalogued some of these possibilities in these pages before. See Failinger, supra note 4; see also Marie A. Failinger, Levinas, Law Schools and the Poor: They Stand Over Us, 35 Okla. City U. L. Rev. 115 (2010) (describing the ways in which we refuse to see the face of the poor in our law schools).

      [21].  Legal Scholarship for Equal Justice Seminar, Legal Scholarship for Equal Justice, http://www.lsej.org/RTF1.cfm?pagename=Equal%20Justice%20Class (last visited Oct. 26, 2012).