An Abolitionist Horizon for Child Welfare

Cynthia Godsoe–

The COVID-19 pandemic and police killings of George Floyd and other Black men and women have starkly revealed society’s race and class-based inequality and brought unprecedented attention to the excesses of the carceral state. One arm of punitive state regulation, however, has gone largely undiscussed: the “child welfare” system, which I call here, adapting Professor Dorothy Roberts’ words (and her appeal for abolition), the family regulation and policing system.

This family regulation and policing system is a coercive state apparatus that controls and punishes poor and Black and Brown families. Last year, state child welfare agencies investigated over three million families—disproportionately families of color. Family Courts around the country deemed almost 700,000 children to be neglected or abused; separated 430,000 children from their parents, placing them in foster care, often with strangers; and permanently terminated tens of thousands of parents’ rights, making many of their children—71,000 in 2018 alone—“legal orphans.” The vast majority of these cases did not concern physical or sexual abuse, but common parental behaviors, such as using marijuana or other substances; leaving children unsupervised; or missing therapy appointments due to train delays. I saw these types of cases all the time when I represented children in the system, and as a parent myself now, I am confident no parent can survive this scrutiny. For most parents, however, this ordinary behavior goes unnoticed, while for those marginalized by race and class, it is deemed “neglect,” leading to family separation and other consequences that in no way protect children. Low-income mothers of color are most impacted, forming a female analog to the police and incarceration of men of color.

Continue reading

Carceral Feminism at a Crossroad

Aya Gruber–

In this watershed moment when policymakers feel liberated to embrace noncarceral responses to the behaviors that laws label crimes, one question rings out: “What about rape and domestic violence?” The pro-policing contingent intends this as a rhetorical “gotcha.” But many progressives open to meaningful reform genuinely worry about the demise of gender crime law, which they see as a formidable legal tool against the patriarchy.

gruberThe entrenched instinct to equate gender justice with criminal prosecution renders feminism one of the last legitimators of the penal state in an era of declining liberal faith in criminal law. My book The Feminist War on Crime traces the complex symbiotic relationship between U.S. feminism and the American penal system. Repeatedly, feminists stood at the crossroads of antiviolence policy and, despite warnings from insiders and other options, chose criminal law. I hope to dislodge this instinct to seek liberation through prosecution.

In the dominant genealogical account, contemporary carceral feminism arose fortuitously when tough-on-crime politicians and prosecutors coopted the feminist antiviolence agenda. This is often expressed by feminist scholars as law enforcement “taking over” the movement. Feminists in the 1970s and 80s, the account goes, reacted to centuries of social and legal tolerance for rape and DV and finally pushed the state to treat violence against women as a serious crime. This modest invocation of criminal law was seized upon by conservatives eager to use vulnerable women as poster children for the war on crime. By the close of the millennium, the stalwart suit-wearing SVU prosecutor had replaced the bra-burner as the symbol of women’s empowerment.

Continue reading

You Planted a Seed: Legal Problems as Power Building Possibilities

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

Jamila Michener–

In January 2020, I sat in a courtroom in Atlanta observing as people with various housing problems went before a judge. The case that stood out most that day involved a Black man in his late 30s whom I’ve since given the pseudonym Ray. Ray was being evicted by his landlord, a man I’ll call Mr. Young.

All parties agreed that Ray had been paying his rent. The rent was once partially covered by the housing choice voucher program (colloquially known as Section 8) and Ray had reliably paid the remaining portion. In fact, Ray paid extra as part of an off-the-books rent-to-own agreement. Ray hoped to one day buy the home he rented and Mr. Young led him to believe that would be possible if he agreed to pay a sum over and above what HUD allowed. Nonetheless, by the time I observed them in court, Mr. Young wanted Ray out. The neighborhood where Ray’s rental home was located had begun to gentrify, demand was on the uptick, and Mr. Young saw a chance to maximize his profits. Claiming that Ray was on a month-to-month lease (a fact that Ray disputed but could not disprove), Mr. Young’s lawyer made the case that his client could evict at any time. It did not matter that Ray had paid his rent. It did not matter that Mr. Young had defrauded Ray with a false promise of selling him the home. Nor did it matter that Mr. Young had neglected home repairs, sent men to Ray’s residence to intimidate him, or put Ray’s family through enough prolonged stress that his daughter needed counseling.

All of those facts emerged in court. None affected the outcome. Mr. Young retained experienced legal counsel. Ray represented himself. Ray was passionate, organized and smart. But he did not know the law. He struggled to make his way through the formal courtroom proceedings. When all was said and done, the judge expressed sympathy for Ray but insisted that he had to vacate the home within 7 days. She firmly assured him that one week was “all the law allowed.”

When the trial ended, Ray’s landlord laughed with his lawyer about how annoying Ray had been. Ray held his head high and swiftly walked past Mr. Young. I followed him. When I caught up, I explained that I was a researcher seeking to learn more about his experiences. He seemed eager to commiserate with someone who had been in the room to witness what happened. We talked for an hour. I mostly listened. Ray told me too much to recount here. Most of it reflected his profound sense of injustice (“I didn’t have a chance for a fair trial today…They want you homeless, they want us on the street, they want us desolate”).

Ray now had seven days to move his wife and four children out of the home they had lived in for seven years. He was frazzled and frustrated. What stood out most, however, was that he was resolute and clear minded about the politics of what he was going through. He confidently told me that, “the judge represents the bankers” then almost immediately declared of her and her ilk: “y’all thought you’ll put me in the ground, ya’ll didn’t bury me you planted a seed.” Ray went on to talk through his plan for “fighting this”— a path he was intent on whether he lost his home or not. Among other things, he mentioned “going public” and getting the media involved to expose “what they do to us [Black people]” in housing.

Ray’s experiences with his landlord, the public housing authority, and the civil court system had been almost entirely negative. Yet, instead of being demobilized, he was activated. This is not what theories of political participation would lead us to expect.

Continue reading

From Altruism to Solidarity: A New (or Perhaps Old) Model for Public Service

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

Sam Allison-Natale–

To put the matter crudely: if one relegates a certain social space simply to the selfish acquisition of material things, it is almost inevitable that soon someone else will come to set aside another domain in which to preach that, from the perspective of ultimate values, material things are unimportant; that selfishness-or even the self-are illusory, and that to give is better than to receive.. . .. Pure greed and pure generosity are complementary concepts; neither could really be imagined without the other; both could only arise in institutional contexts that insisted on such pure and single-minded behavior; and both seem to have appeared together wherever impersonal, physical, cash money also appeared on the scene.”  David Graeber, Debt: The First 5000 Years.

In their call to young lawyers entering public interest, Hershkoff and Loffredo remark that students entering public interest work are often held up by the sense that they are “losing out” by entering public service – in status, first and foremost. They work to dispel that selfish notion of individualistic altruism, and as the quote above illustrates, the individualistic altruism view is nothing more than a reverse manifestation of the individualistic greed that motivates much of the profession. The ideology underpinning individualistic altruism infects many of those who do enter public service law and this view glorifies powerlessness, when power is precisely what we need if we are to end injustice.

Public interest attorneys must conceptualize the work as in the holistic interests of both themselves and their clients and not as merely selfless altruism. Downwardly-mobile attorneys are badly saddled by school debt, and high rent. For lawyers of marginalized identities, all of this compounds on top of oppressions rarely ameliorated by simply occupying a “professional” occupation. In other words, public interest attorneys share interests with our clients in ending racial, gender, and economic injustice. The martyrdom culture of “heroic” public interest attorneys must be replaced with a sense of solidarity.

Continue reading

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.

Continue reading

LPE Praxis for Intergenerational Joy

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

Julia Hernandez–

The question of how to put LPE into practice in legal services work naturally raises questions around methodology: who should elucidate and fulfill an agenda for life-affirming social change, and how should we go about it? More specific to lawyering, who should occupy the role of a lawyer fighting alongside her clients for racial and economic justice? These questions run together with epistemological questions about the origins of positions lawyers take on behalf of politically marginalized people, and they are central to today’s powerful movements, including movements building family power.

In reimagining the state- a central concern of LPE praxis- our anchor is always the people who know its brutality best. In other words, the law means what it means to those subject to it. A direct service lawyer’s proximity to these individuals and communities is an important social location, positioning them to illuminate practices on the ground. The value of this position depends on its relation to surrounding organizations. When part of a larger movement for social change, direct service lawyering can inform a movement’s agenda and serve as a pipeline to organizing for impacted people not already involved. When confined in the nonprofit industrial complex, or NPIC, the direct services lawyer can become isolated, depoliticized and demoralized.

Continue reading

Politics and Poverty Law

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

John Whitlow–

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.

Continue reading

LPE in Practice: Why We Wrote Getting By

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.

Continue reading

The Constitution of Social Progress

The Constitution of Social Progress

This post is part of our symposium on socialist constitutionalism.

Blake Emerson–

Willy Forbath has drawn inspiration from the Weimar Republic to envision a socialist constitutionalism that would restructure the economy on a democratic basis. Sam Moyn has argued in response that the left ought to avoid constitutional law, which has usually posed an obstacle to progress, and instead focus directly on the political task of furthering material equality. As a scholar of administrative law, I’m sympathetic to the urge to keep constitutional law out of the way and make space for both democratic politics and practical know-how. But constitutionalism sits at the commanding heights of law. That framework of governing structures, rights, and ideals shouldn’t be abandoned to right-wing and liberal-centrist construction. Socialists and progressives instead ought to embrace a constitutional vision in which legislative and executive power give effect to the spirit of democratic equality that underlies but outruns the Constitution’s text.

The Weimar example Forbath invokes shares some common intellectual origins with the American Progressive tradition. As I show in The Public’s Law, Progressives like John Dewey, Mary Follett, and Frank Goodnow drew inspiration from earlier German constitutional models, in which an activist state would be governed by legislative norms, staffed by a professional bureaucracy, and ballasted by a corporatist organization of the economy. The Progressives sought to reconcile the German bureaucratic state with American popular sovereignty by creating highly participatory administrative processes. Regulatory agencies would empower trade unions, industrial associations, and consumers to help shape government policy.

Continue reading

On Socializing the Constitution of Economic Coordination

On Socializing the Constitution of Economic Coordination

This post is part of our symposium on socialist constitutionalism.

Sanjukta Paul–

Professor Forbath’s essay, drawing from his research into the Weimar Constitution, urges us to reconsider what we mean both by socialism and by constitutionalism. He recovers and makes vivid a socialist vision that is neither about (simply or necessarily) “nationalizing” industry nor only about redistributing the material benefits of economic activity, but about creating participatory structures of decision-making across both the “public” and “private” spheres that empower workers and others who are currently largely excluded from it: in short, robust economic democracy. The essay also hints toward a broader sense of “constitutionalism,” encompassing not only the drafting and interpretation of public constitutions, but also the re-constitution of putatively private or semi-private associations like business corporations and labor unions. These two reorientations are connected by one of the grounding LPE principles: that law constitutes markets. Centering the constitutive power of law destabilizes the usual public/private distinction and enables a vision of socialism that incorporates transformative reforms to “private” entities—and that has room for localism and decentralization, where appropriate.

Continue reading