The Clean Sea Breeze of Bad Men

This is part of our symposium on the legal representation of poor people.

Gregory Louis–

In Professor Hershkoff and Loffredo’s post contextualizing their comprehensive handbook within the LPE movement, we can detect a certain irony. As they acknowledge, many lawyers, particularly those trained at elite institutions, eschew the representation of low-income communities for a host of reasons amounting to “a bad fit.” My colleague Julia Hernandez emphasizes this point, but from the perspective of clients. Lawyers not grounded in LPE had better not undertake this representation; it is not for those approaching it with some detached attitude of noblesse oblige. I agree wholeheartedly with Professor Hernandez, but lament that anyone might regard representing low-income communities as a “waste” of a Harvard Law grad, or any other product of prestige. On the contrary, it is those lawyers’ loss – for through poverty LPE work they might become a real lawyer.

One of my mentors Marty Needelman, a civil legal services lifer hailing from the revolution of the late 1960s and early 1970s, often repeats that ‘the law is what you can get away with.’ Many people who’ve heard him say this overlook that the apparent cliché actually serves to encapsulate the legal philosophy animating legal practice. A Harvard Law grad – Oliver Wendell Holmes, Jr. – formulated a theory of law meant to restrain the “bad man”, or the social actor looking to what and how much he can get away with. The bad man’s perspective on law is the foundation of LPE lawyering, and it is what those representing low-income communities intuitively grasp. I suspect that it’s folks regarding legal services work as a “waste” of a Harvard Law degree who are shocked by the boundless cynicism and anomie of the Trump administration. They suffer of this precisely because they regarded “the law” as some pristine omnipotence, loftily residing in the ether untouched.

But for those of us who have represented immigrant and working poor communities in gentrification vortexes like Brooklyn and Queens (like the community lawyering and organizing office that I co-founded before becoming a professor), we have learned otherwise.

Accompanying our clients has taught us that “the law” is not the jurisprudence of the warranty of habitability or rent regulation scheme providing for security of tenure. Instead, it is the indifferent-to-hostile housing courts, the somnolent regulatory agencies, the skittish legislatures, and the absent police and prosecutors, all so captive to neoliberal real estate’s claim of indispensability as to ignore the actual broken windows revealing badges of servitude. It is these legal actors, not statutes or decisions, which operate to disenfranchise the poor when they are lobbied, threatened, or manipulated by a bad man. Thus lobbied, these actors turn a blind eye toward the small things of registration and permit fraud portending the tide that can be such big things in the life of a person surviving from paycheck to paycheck. As my colleague John Whitlow wrote in a New York Times op-ed, we’re not shocked by the scale of lawlessness in the era of Trump because he’s another slumlord, and we are very familiar with their rule.

The bad man view of law also informs the representation of corporations, my area of expertise and the destination of many an elite law school grad. It is institutional wealth’s agitation, not the content of statutes, informing the real substance of corporate law. The otherwise confusing path of Steinway v. Steinway & Sons and AP Smith Mfg. v. Barlow (corporations can give away funds for the common good) to Delaware courts’ pronouncements in Revlon, Inc. v. MacAndrews and Forbes Holdings, Inc. and then eBay Domestic Holdings v. Newark (corporations must maximize shareholder profit) is not a story of statutory change. For, on the books, corporate managers have enjoyed the same power and authority throughout that 130-year span. Rather, the story is Milton Friedman’s 1970 article in New York Times, the embracing of it by middle-class voters, its resultant widespread influence amongst organs of power, and the institutional pressures reflected in the market that all such has placed on managers to mechanically uphold short-termism. And the other side of corporate representation – litigating corporations’ protests against state power that limits their power – has less to do with “originalism” and “federalism” or “the problem with Chevron or Mead deference” than with the pettiness and will-to-power of rich folks. When reading these cases, we must never forget that the fancy doctrines of constitutional and administrative law are merely the product of corporations investing thousands of dollars to frame the narrative so that they might avoid spending those same funds (isn’t money suppose to be fungible?) on compliance or taxes.

There is very little to credit Trumpers with, as they authored the rule of law’s demise. But the poverty LPE approach at least recognizes the efficacy of their methods. As Lisa McGirr’s Suburban Warriors highlights, the conservative movement’s ultimate victory of capturing every organ of power, including the federal judiciary and statute legislatures preserving their entrenchment, was a disciplined, grassroots process beginning with John F. Kennedy’s 1960 election and accelerating after Goldwater’s defeat. It was a process of persuasion at every level of society, starting off locally, in Orange County, CA, securing that to build upward toward the governor’s mansion, and then, from there, the White House. Both the means and spoils of this process also involved capturing, through the media, the meaning of formal rights, as Hershkoff and Loffredo’s post also references in quoting Professor Whitlow. This capture serves further “[to] reify structural arrangements that underpin social inequalities and relations of domination and subordination.” As a result, the signposts of the 1960s and 1970s judicial revolution remain intact – Goldberg v. Kelly is still “good law” – but the capture of power has transformed the underlying assumptions. Very simply, the Trumpian right’s possession of power, from which position they can define “welfare queens” versus “economic stimulus to corporations,” means that whatever poor people enjoy is not any “property” which a white man is bound to respect. Even if that wasn’t true 50 years ago, it has been spoken into the law. Yale Law Professor Charles Reich’s article, based on the truth of similarity between the professional license and housing subsidy, was never self-executing or conclusive. Rather, it was an idea, like any other, upheld only by platform built and secured by the same grassroots, comprehensive work drawing on everything, not merely precarious litigation. LPE preaches this.

The LPE movement advances the perspective of law, foundational to our adversarial system, as a contest about winning. It schools practitioners on all the tools to win for those clients who truly cannot afford to lose where that means separation, hunger, homelessness, and, as we deeply appreciate these days, death. Under the LPE approach, for example, the client’s eviction case does not begin when she is served with process. It begins at the local land use board’s subcommittee meeting three years prior, where a developer presents a rezoning proposal that is endorsed enthusiastically by unelected bureaucrats who think in abstract terms (“real estate” and “value”) rather than concrete ones (“residents” and “families”). And so the LPE approach orients the lawyer to regard eviction prevention as a process requiring attendance of those meetings, discernment of the political talking points, and then collaboration with affected stakeholders to formulate a strategy and produce the tool – an op-ed, research paper, report, draft bill, or court case – needing to vindicate social citizenship. Poverty LPE directs the lawyer to plead “the case” in whatever space the clients’ rights are actually determined: the committee hearing room or the court of public opinion, the forum often most effective for holding elected officials accountable for bureaucratic abstraction. In sum, poverty LPE takes the Civil Rights Act of 1866’s standard seriously and trains lawyers to assist all persons within the jurisdiction of the United States to enjoy the law as is enjoyed by white citizens, especially privileged elites. [By that, it seeks to have better people treat the law as holistically as “bad men” do.]

I share Professor Hershkoff and Loffredo’s hope that student-readers of their manual, and all lawyers steeped in LPE practice, will wish to represent low-income communities. Agreeing with Professor Hernandez’s view that one must undertake this in the spirit of LPE, I nonetheless advertise it as archetypal lawyering. As C.S. Lewis once wrote of old books, poverty LPE representation has the salutary effect of refreshing the stuffy, law-schooled mind with the clean sea breeze of reality. It is not that low-income communities reveal some moral purity, as though such folks were romanticized “humble people” or colonial “noble savages” instead of real human beings. Rather, it’s that their lives show the depth to which “the law” really is the American insight of a living, practical, social instrument, and not the dry paper of casebooks.

Gregory Louis (@GregoryELouis1) is Assistant Professor of Law at CUNY School of Law.