The Dark Secret of Progressive Lawyering: A Comment on Poverty Law Scholarship in the Post-Modern, Post-Reagan Era
In 1971, Stephen Wexler argued in "Practicing Law for Poor People" that what poverty lawyers should be doing was, in a word, organizing. I Wexler flaunted a tough-minded disdain, not only for individual claim assertion, but also for the purely individual concerns of particular clients. Instead, he advocated efforts to assist the poor to collective power.
In his 1977 diagnosis of the state of poverty practice, Gary Bellow argued that what legal services lawyers should be doing was "focused case pressure." He proposed aggregating small housing or welfare claims in order to generate pressure on institutions engaged in systemic misconduct and to encourage collaborative action among clients. Like Wexler, Bellow advocated collective empowerment, but the process he envisioned was smaller in scale and more informal. Bellow expressed concern about lawyers dominating clients with their own agendas and argued that heightened lawyer accountability was an important virtue of small scale client collaboration.
In the late 1980s and early 1990s, a large body of literature on poverty practice emerged. This literature focused intensely on the problem of lawyer domination, which it portrayed not – as Wexler had – as a necessary evil, nor – as Bellow had – as a remediable failing, but as an overwhelming menace stalking the most sophisticated and well-meaning efforts to respect autonomy. In this literature, client empowerment means liberation from lawyers as much as obtaining leverage on the outside world. The scale of practice portrayed is typically small – often one on one – and the benefits are often as much psychological as they are material.
At each stage in this remarkable evolution, the concern with lawyer oppression of clients has increased, while the scale of material and organizational ambitions has declined. Of course, it is easy enough to correlate this intellectual development with the course of practice. Wexler wrote as counsel to the national organization coordinating the welfare rights movement of the late 1960s and early 1970s – the last time lawyers participated in anything resembling large scale collective action by poor people. Bellow wrote at a time when a significant legal services movement had gained institutional security, but the energy and inspiration for collective practice seemed to be draining rapidly. The new poverty lawyers write at a time when practitioners feel besieged by hostile politicians and rebuffed by the judiciary, and the idea that lawyering might serve ambitious collective goals seems less plausible than ever.
Thus, we find ourselves in the peculiar situation of having for the first time an extensive and rich literature on poverty law – a literature that makes substantial progress toward the goal of bringing theory to bear on practice – at a time when the general state of poverty law practice is so depressing. This work draws in a sophisticated way on a breath-taking array of ambitious social theories, and it is informed by concrete knowledge of the texture of practice.
I admire this literature and am pleased to have had my own work associated with it. However, I have reservations about it that I want to explore here: I think that it does not adequately treat several lawyering issues, especially those concerning collective practice. In pursuing this point, I do not mean to minimize the great contribution this work makes to understanding the lawyer-client relation and the effect of legal institutions on poor people's sense of themselves. On the other hand, I mean to say more than that there are important topics that these authors don't deal with extensively. I think that the preoccupation of the new poverty law scholars with professional domination and their premises about the nature of domination perpetuate some mistaken conservative views about law practice.
William H. Simon,
The Dark Secret of Progressive Lawyering: A Comment on Poverty Law Scholarship in the Post-Modern, Post-Reagan Era,
U. Miami L. Rev
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/882