This is part of our symposium on the legal representation of poor people.
This past February, I was asked, along with several of my colleagues at CUNY School of Law, to remark on Helen Hershkoff and Stephen Loffredo’s forthcoming book, Getting By. This was a supreme honor, given my admiration for Helen and Stephen’s work and the fact that Stephen was my professor and continues to be a mentor. Although I was asked to focus my talk on a particular section of the book, I took some liberties and emphasized its philosophical orientation to the practice of law on behalf of people with low income, particularly the relation of this orientation to the project of law and organizing. Below is a modified version of my remarks.
Just a few pages into reading Getting By, I was struck by its resonance with the admonition popularized by the dissident Italian political philosopher Antonio Gramsci – that when analyzing and intervening in a particular political moment, we must combine a pessimism of the intellect with an optimism of the will. The pessimism allows us to take a sober accounting of the forces and events that led us to our current conjuncture; the optimism gives us the capacity to hope for – and work toward – a better future. The tension that inheres in this dialectic can be debilitating, with some of us veering into inactive nihilism, and others careening toward faith-based pollyannaism. Helen and Stephen navigate this tension deftly, with rigor and humility, in a way that is firmly grounded in the lived realities – and legal necessities – of poor and subordinated people.
In the framing of Getting By, we find ourselves situated in a society shot through with race and class inequality, brought about by decades of neoliberal policies that have favored capital and depleted the welfare state of the New Deal and Great Society. There is an acknowledgement that this reality can only be changed by a multi-racial mobilization of working-class and poor people that takes aim at the political economic and legal status quo. There is also a recognition that these same people – the victims of racialized neoliberalism – need all the help they can get just to survive in this world, and that public interest attorneys can play a vital role in assisting them.
While Helen and Stephen characterize the book, in their LPE post, as ‘a manual’ and ‘nothing fancy,’ there is a subtle political ethic at work in Getting By. As anyone who’s been a frontline poverty lawyer in a legal services office knows, it is widely acceptable at best to treat the work as depoliticized. At worst there is something about the work itself – the high volume caseloads, the proximity to entrenched bureaucracies, the funding strictures, the engagement with clients operating from the depths of intense and intersecting life crises – that enervates one’s politics. These structural challenges produce a commonsense in which entrenched social problems are seen as amenable to technocratic legal fixes – fixes that, on their own, do little to address, and may even legitimate, the material sources of poor people’s deprivation. Against that backdrop, attempts to move beyond legal technocracy are often viewed as tilting at windmills.
The political limits of poverty law – or, put differently, the difficulty of cultivating and maintaining an anti-systemic political praxis from within it – go a long way to explaining why so many of us have sought alternative modalities of law practice. These new practice modalities have yielded important innovations: they have taken aim at traditional hierarchies between lawyers and clients and have explicitly sought to subordinate the work of lawyers to the work of organizers and social movements. They have been an animating force behind the creation of law offices, law collectives, and law school clinics that have attached themselves in concrete ways to grassroots efforts to build people power, with the goal of shifting law and policy in a progressive direction.
The strength of Helen and Stephen’s work is that it recognizes the incredible importance of all that, without losing focus on the day-to-day job of providing legal representation to people with low income. This has been on full display for years in CUNY Law School’s Economic Justice Project (EJP), which Stephen founded in 1996 in response to federal welfare reform. EJP was formed at the behest of Hunter College’s Welfare Rights Initiative (WRI), a student-led organizing and advocacy organization that was looking for legal representation for CUNY students – many of them mothers of young children – being forced to leave school due to the “workfare” requirements of the new law. In other words, EJP was formed to provide direct poverty law legal services in the context of WRI’s ongoing organizing campaign to change the welfare system. In this sense, EJP was anchored, from its inception, in the lived experiences of organizers and clients who were working creatively to transform the state’s relationship to poor people – a relationship overdetermined by violence and coercion.
Over the years, EJP won a number of victories, at multiple scales. In addition to representing – and protecting the public benefits of – hundreds of CUNY students, EJP played an instrumental role in efforts to change the politics and policies of public benefits in New York, culminating in the City’s disbanding, in 2016, of the punitive system of “workfare” sanctions that impacted so many CUNY students. EJP also trained generations of CUNY law students to become social justice advocates who were adept at individual client representation and also attuned to the political economic and grassroots organizing context of their work.
Seen through the lens of law and political economy, one can draw a straight line from the principles that underpinned EJP to the approach of Getting By. As Helen and Stephen write in their Post, “(l)awyers representing poor clients cannot help but have in mind that ‘politics and the economy cannot be separated,’ and that both are constituted and supported by law.” In Getting By, as we have seen, this leads to the conclusion that although the law is wielded overwhelmingly to the benefit of the powerful, it can also be deployed to help people with low income make ends meet in a world that is structurally rigged against them. Further, the valence of that necessary legal work is amplified when it is conjoined with organizing for social change.
Our current moment is unyielding and dystopian for people with low income. Over 40 million Americans have filed for unemployment benefits, many will soon face eviction or foreclosure, and millions of undocumented and precarious workers are excluded from government relief. Faced with intensified levels of poverty, inequality, and precarity, advocates must continue to examine the way we think about poverty law and its connections to grassroots mobilizations for economic and racial justice. As writers on this blog have emphasized, the law is being deployed in creative and useful ways to meet the challenges of the moment. As the future of poverty law unfolds, Helen and Stephen’s work underscores an unchanging truth – that poverty law practice, irrespective of the form it takes, must always be grounded in an ethic of helping our clients get by.
John Whitlow (@zhionny74) is an Associate Professor at CUNY School of Law.