This is part of our symposium on the legal representation of poor people.
Helen Hershkoff & Stephen Loffredo–
Students often ask how they can put “LPE into practice.” Earlier this year (before law schools went remote because of COVID), Professor Angela Harris spoke at NYU Law and addressed this question, emphasizing three key features of moving from theory to practice: first, intersectionality; second, a recognition of law’s limits and an expanded paradigm of justice; and third, a reorientation of law toward “life rights.” The current political moment—a public reckoning with a lethal pandemic, a racist law enforcement system, and a profoundly inequitable economic structure that are killing Black, Brown, and poor people in disproportionate numbers—highlights the urgency of practice that can effect deep and positive change.
But appreciating the importance of action leaves open the question of what roles a lawyer can play. We suggest that one role a student can consider is to provide legal representation to people with low income. The work we have in mind can be undertaken on behalf of individuals and individuals as members of a community, and it can be done in various kinds of law organizations, including a legal services or legal aid office, an “impact” office focused on class actions, a community law office, or some other hybrid professional unit. The need for such work in the United States is great, and yet an important number of students overlook or consciously reject this option. We can’t speak for their reasons, but we have a hunch about their indifference or resistance. Undertaking this work may require some students to overcome status anxiety about doing what they regard as “service” work (when we were students one professor said that sending a Harvard Law grad to do legal services was like sending a small particle nuclear physicist to change a light bulb). Other students might view the low salary and grueling hours which they associate with representing “the poor” as incompatible with paying off student loans and achieving some work-life balance. Still others might raise political arguments, dismissing such work as bolstering the status quo and entrenching hierarchical distinctions between lawyers and clients. Others might argue that the work is technocratic and boring, iterative and conceptually less rich than constitutional litigation. The theory of LPE helps to put each of these possible objections into perspective and to frame a lawyer’s practice.
We wrote Getting By: Economic Rights and Legal Protections for People with Low Income as a resource for front-line individuals and groups. Adriene Holder, Attorney-in-Charge of The Legal Aid Society, Civil Practice, called our audience “racial, social, and economic justice warriors”—lawyers who work with and on behalf of people with low income in efforts to mobilize for economic justice and to support social movements. The book is nothing fancy—basically, it looks like a manual, written in a question-and-answer format, explaining how to access benefits and secure rights and protections and covering federal laws and programs pertinent to cash assistance, employment and labor rights, food assistance, health care, education, consumer and banking law, housing assistance, rights in public places, access to the courts, and voting rights.
Getting By is in some sense the lineal descendant of a book we wrote in 1997 called The Rights of the Poor, which was itself offspring of the 1968 book of that name by Sylvia Law and Burt Neuborne (both volumes were part of the ACLU’s “know your rights” series). We intentionally did not use the earlier title. In particular, we wanted to bring together in one space—and give a unified account to—the various laws and programs that affect people in the lower tranches of the U.S. economy. Conservative rhetoric has been masterful in presenting a false narrative of zero-sum competition among left-behind groups, fueling a politics of resentment, both racialized and gendered, that President Trump has exploited and encouraged. Neoliberal rhetoric likewise contributes to the fiction that there is a category of non-working poor people, separate and distinct from people who work for a living—the former are the takers, and the latter foot the bill, with the suggestion, sometimes subtle, sometimes not, that these groups sort by race.
By presenting a comprehensive handbook that addresses programs for those with low income—whether they work, cannot work, are underemployed, or employed in the home—we hoped to show, as Frances Fox Piven wrote in a blurb generously provided pre-publication, that social welfare rights also “shore up the rights of workers and this understanding is fundamental and essential to the pursuit of class justice in the United States.” Each chapter describes our nation’s current programs, and also points to alternative approaches that would be more respectful of personal dignity, take serious human capabilities, confront racial and gender subordination, and strive to ensure a shared economic basis for true democratic participation.
Our aggressively practical book is inflected with a strong dose of theory—theory of the sort that will be familiar to readers of the LPE blog. The first theoretical plank is clear: Lawyers representing poor clients can never ignore that “politics and the economy cannot be separated,” and that both are constituted and supported by law. The “safety net” programs of late capitalism, with their limited ameliorative or redistributive effects, are established and sustained by laws. These laws, individually and through their combined effect, create and reinforce economic insecurity, they sustain immobility, and they foster oppression in ways that are racialized and gendered, yet they make it seem as if negative impacts are natural and inevitable—the results of a person’s bad luck, bad character, or bad decisions. In a related context, Stephen’s colleague John Whitlow has observed that “formal rights by and large fail to disturb—and may even reify—the structural arrangements that underpin social inequalities and relations of domination and subordination.” That dynamic operates with ferocity for people with low income, and it is compounded for people of color.
The second theoretical plank (to be sure, camouflaged by our “how-to” approach) emphasizes that lawyers working within the structures of government programs not treat them as fixed and technical rules that are impervious to change. Rather, as others have written on the LPE blog, it is critical that lawyers take “the truly holistic perspective in what it means to advocate for and with our clients in all the aspects of their oppression.” As Helen’s former student Luke Herrine has explained, such advocacy requires “developing institutions that enable collective deliberations about which (and whose) interests” government programs and regulations serve.
This broader effort demands collective reimagining of the laws and programs described (and critiqued) in Getting By, and it is informed by democratic deliberation. The effort is bolstered by a third theoretical plank, and again one that is familiar to LPE readers: a commitment to the country’s overlooked tradition of “constitutional political economy.” While we understand the skepticism of constitutionalism by students on the left, we believe it is important to reclaim a tradition, discussed by Willy Forbath and others, that reads the Constitution as mandating government actions that “prevent oligarchy and economic overlords” and ensure “conditions of possibility” as the foundation for democratic life.
In writing Getting By, we received incredibly generous advice from advocates who found time to talk with us despite their unforgiving schedules. Our hope is that some student-readers of the LPE blog will want to follow their example and work for economic justice by providing legal representation to people with low income in ways that are supportive of, and allied with, social movements. The work is not easy. Technically, the lawyer must have a strong command of statutes that are dense and complicated; must be equipped with a rich understanding of administrative practice; and must be conversant with abstruse jurisdictional doctrine. Politically, the lawyer must seek out and nurture community collaborations and reject the notion that the lawyer’s place is at the head of the table or the top of a hierarchy. Personally, the lawyer must be resilient, empathetic, and patient, and must embrace opportunities to learn from individuals and communities who bear the brunt of an unjust system. We hope that Getting By can support students in their efforts to put “LPE into practice”—through legal representation that helps people improve their lives now, and as part of a continuing struggle for transformative change.
Helen Hershkoff is Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties at NYU School of Law. Stephen Loffredo is Professor of Law at CUNY School of Law.