Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973.

• Author: Diller, Matthew

The 1960s was a decade of extremes. The decade opened with an almost-unbounded sense of optimism about America. With the nation led by a charismatic young President, it seemed that all problems and challenges could be solved if given sufficient attention. The United States, it was claimed, could even put a man on the moon. Despite NASA's success, the decade ended with a tumult of dashed hopes -- defeat in Vietnam, economic stagnation, political assassination, Chappaquidick, and, ultimately, the disillusionment of Watergate. Views on poverty during the 1960s track this fall from optimism to disillusionment. The "war on poverty" declared by President Johnson was based on a faith that poverty could be eliminated after a brief pitched campaign led by a handful of social scientists. The aftermath of this "war" was an era of despair in which poverty was widely regarded as intractable.

Martha Davis's Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973,(1) provides a well written and engrossing account of the efforts of a few young lawyers to wage war on poverty on their own terms. Davis focuses on the development and execution of Edward Sparer's plan to beat poverty in the courtroom through a series of test cases designed to create a judicially recognized "right to live" -- a right of access to the essentials of subsistence.(2) The plan ended in failure when the Supreme Court resoundingly rejected not only the right to live thesis but also any heightened judicial scrutiny for programs that dispense means of subsistence.(3) On the legislative level, Congress's rejection of President Nixon's Family Assistance Plan, which was opposed by both the left and the right, marked the end of serious efforts to achieve a federally guaranteed minimum income for families with children (pp. 138-39).

Davis has chosen fertile ground. Like the war on poverty itself, Sparer's litigation strategy was a failure when judged by its own goals. But it nonetheless produced substantial and lasting intermediate triumphs that have had profound repercussions. This tantalizing mixture of success and failure makes the story of Sparer and his colleagues ripe for examination. Their successes give rise to the question: Why did ultimate victory prove elusive? This question implicates basic issues concerning the role of litigation and lawyers in bringing about fundamental changes in society. More simply put, what should lawyers for the poor do, and what can they accomplish?

Brutal Need is also timely and important because it has arrived at a period when legal scholars have shown renewed interest in the theory and practice of poverty law.(4) Much of this literature has focused on the relationship between poverty lawyers and their clients. Davis's account adds fuel to this discussion because it traces how the lawyers implementing Sparer's test-case strategy strayed from the social movement agitating for welfare rights. Although Davis does not attempt any definitive assessment of the impact of this trend, she does conclude that "the failure of Sparer's welfare rights litigation strategy mitigates against reliance on litigation as the sole focus of a broad effort to promote change in the welfare system" (p. 145).

In developing her account, Davis carefully weaves together a number of stories, including a history of legal representation of the poor (pp. 10-21), an account of the social protest movement agitating for welfare rights (pp. 40-55), and short biographies of key individuals (pp. 22-27, 82-86). Accounts by other writers deal more comprehensively with a number of these subjects, such as the founding of the Legal Services Program,(5) the welfare rights movement,(6) and the Supreme Court's handling of poverty litigation.(7) Brutal Need, however, connects these subjects in a way that enriches our understanding of each of them.(8)

Written for a general readership, Brutal Need does not provide detailed analysis of the Supreme Court's welfare decisions between 1967 and 1973. Nonetheless, its fascinating accounts of the lawyering that led up to those decisions are a notable contribution to the literature. These accounts have all of the attributes of vintage war stories. They are filled with clashes of strong personalities, strategic maneuvers to influence the Supreme Court's docket, missteps at oral argument, and other details that together convey a flavor of the times and the cases.

These war stories, of course, are more than simply entertaining. The accounts highlight the lawyers' strategic choices in crafting lawsuits to serve as building blocks for the right to live principle. In this way, Brutal Need places the cases in the context of Sparer's overall plan. For example, instead of viewing King v. Smith(9) as a Social Security Act case, Shapiro v. Thompson(10) as a right-to-travel case, Goldberg v. Kelly(11) as a due process case, and Dandridge v. Williams(12) as an equal protection case, all four cases emerge as pieces of the larger strategy.

Davis's account of the lawyering in Goldberg (pp. 81-118) is particularly well developed. She has interviewed most of those involved in the case, including Professor Charles Reich, whose articles provided the intellectual underpinnings for the case;(13) Justice Brennan and two of his law clerks who worked on the opinion of the Court; Judge Wilfred Feinberg, who wrote the opinion for the three-judge court that heard the case initially; the attorneys who argued the case for the plaintiffs and the defendants at the trial level and on appeal; and the attorneys at Mobilization for Youth Legal Services -- a New York City neighborhood law office -- who performed the initial intake interview with John Kelly and put together the case.(14)

In this review, I will first examine Davis's discussion of the relationship between Sparer's test-case strategy and the social movement seeking welfare rights. I will also consider a number of objections leveled by academics at lawyer-dominated strategies for social change. In the second portion of this review, I will consider the legacy of the work of Sparer and his contemporaries in terms of its impact on poverty lawyers practicing today. I will also consider the claim of a number of academics that this legacy has contributed to the creation of a crisis in contemporary poverty law.

1. THE TEST-CASE STRATEGY

   1. Development of the Strategy

      In the early 1960s, the idea that lawyers had a role to play in eliminating poverty was new. Prior to the 1960s, legal aid societies provided legal representation to the poor as a means of allowing access to the justice system (pp. 10-21). Although legal aid work made the justice system more fair and helped many individuals resolve disputes, legal aid lawyers did not perceive their mission as the eradication of poverty through the reform of social and legal institutions. In an effort to serve greater numbers of clients, few cases were litigated, and even fewer appealed.(15)

      The successes of the NAACP Legal Defense Fund, however, created a new image of the lawyer -- as agent of social change.(16) To some, this new conception seemed transferable from the realm of civil rights to the arena of economic rights. The analogy proved controversial, even among advocates for the poor. In particular, the young activist lawyers who promoted the idea of using legal representation as a means of fighting poverty relentlessly criticized the existing legal aid societies and their "band-aid" work.(17) The legal aid societies, well connected with the established bar, fought back.(18) The establishment of the Legal Services Program of the Office of Economic Opportunity in 1965 made clear the triumph of the "law reform" vision. The inclusion of the Legal Services Program in the agency spearheading the war on poverty was an acknowledgement that legal representation was a weapon to be deployed in the war.(19)

      Although Davis recounts this tension between the advocates of law reform and the defenders of traditional legal aid (pp. 33-34), the disputes among the law reform activists are more central to the issues with which she deals. The activists did not agree among themselves on the issue of how lawyers for the poor should go about reforming the law.(20) They developed at least three models of achieving social change. The first school of thought viewed the lawyer as part of a team of professionals who would work comprehensively with individuals to provide a package of social, educational, and legal services.(21) This model, which formed the basis of a short-lived program in New Haven, was rooted in the view that "cultural poverty" causes economic poverty. The second view focused on neighborhood activism.(22) This model, as developed by Edgar and Jean Cahn, asserted that poverty lawyers should serve as a resource for poor communities to make local government and other institutions more responsive on a local level and to assist poor communities in developing their own institutions and leaders.(23) The third alternative, devised by Sparer and social analyst Elizabeth Wickenden, called for the development of a planned series of test cases designed to achieve judicial recognition of a constitutional right to a subsistence income.(24)

      Sparer's premise was radically different from the other conceptions. Although the New Haven model and the Cahns' proposal reflected the war on poverty's general emphasis on eliminating localized pockets of poverty, Sparer's model sought reform on the national level.(25) It is not difficult to see how Sparer's communist past (pp. 22-24) led him to reject diagnoses of poverty that focused on lack of opportunity due to personal or cultural deprivation. For Sparer, poverty was not due to a lack of skills or education; it was caused by a deprivation of power. Litigation was a means of achieving power in order to redistribute resources.

      Davis does not pursue the progress of legal services programs that sought to implement the Cahns'...