Law as largess: shifting paradigms of law for the poor.

• Author: Weissman, Deborah M.

TABLE OF CONTENTS INTRODUCTION I. THE RULE OF LAW: THE CELEBRATION AND THE SUBSTANCE A. Eulogizing the Principles of Law B. Principles of Law and the Poor C. A Historical Perspective--Providing Law for the Poor 1. Legal Aid/Legal Services 2. Complementary Mechanisms II. DIMINISHING RESOURCES OF LAW FOR THE POOR: RECENT DEVELOPMENTS A. The Assault on Legal Services 1. Congressional Restrictions 2. Challenging the Restrictions B. Challenges to Interest on Lawyers Trust Accounts (IOLTA) Programs C. Constraining Law School Clinics D. Reducing Opportunities for the Award of Legal Fees: Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources III. LAW AS LARGESS: PUBLIC WELFARE AND PRIVATE CHARITY A. Public Welfare in the Liberal Political and Economic State 1. Political and Economic Theory 2. Characterizing the Poor in a Liberal Welfare State 3. Resulting Welfare Policies and Programs B. Law for the Poor as Public Largess 1. Law for the Poor Shaped by Political and Economic Theory 2. Law for the Poor as Welfare: Characterizing Poor Clients and Their Lawyers 3. Legal Services Restrictions in the Service of the Liberal Welfare State C. The Culture of Philanthropy 1. Principles of Philanthropy 2. Operative Principles 3. Resulting Philanthropic Policies D. Law as Charity 1. The Influence of Principles of Philanthropy on Law for the Poor 2. Law as Charity: Operative Principles 3. Programmatic Effects IV. ACTUALIZING THE PRINCIPLES OF LAW A. Public Responsibility 1. Expressing National Values 2. Unrestricted Programs: Affecting Outcomes for the Poor 3. Feasibility Issues B. Reforms to Charity C. A Civil Gideon CONCLUSION [T]ear down every charitable institution in the country and build on its ruins a temple of justice.

--Mary Harris "Mother" Jones (1)

INTRODUCTION

The principles of the Rule of Law are deeply embedded in the discursive structure of American legal narratives, principally as a means by which to take measure of a democratic society and render plausible the ideals of justice and fairness. (2) As an abstract principle, the Rule of Law serves as a marker of modernity, endowed with the promise of equality, protection from private and public abuse, and the capacity for the just resolution of disputes. (3) Its symbolic value cannot be overstated. Justice for all is an ideal cherished by citizens. To paraphrase Edward Rubin's description of the concept of democracy, it is the "temple at which all modern political leaders worship." (4)

The Rule of Law has assumed mythical proportions denoting political virtue and public morality, but it has also produced standards by which to measure fulfillment of the ideal. Themes of equality and justice resonate precisely because they are conceived as a covenant made with the body politic and generally held to be the foundation of democratic government. Efforts to enact these principles as a way of demonstrating the efficacy of liberty and justice for all have summoned into existence a variety of structures and institutions, all dedicated to upholding the Rule of Law.

At the same time, another set of principles, no less prominent in the American ethos, informs national values and acts to counter the commitments promised in the Rule of Law. The proposition of self-sufficiency, a kind of fierce independence and individualism, is extolled as a fundamental virtue and celebrates the ability of individuals to pursue and obtain economic interests in the market. (5) Notions of initiative and autonomy are subsumed into concepts of liberty--people acting as free individuals in pursuit of their own self-interest without outside intervention, and especially without interference, from the state. (6) In this view, initiative and independence serve as the minimum requirements for liberty, and success is attained through discipline, determination, and, most of all, hard work. (7) All that liberty asks of us is that we make use of opportunities offered, assume individual responsibility, and exercise self-discipline. (8) Those who do not succeed are perceived either as lacking the ability or the will to contribute sufficient value to the market exchanges upon which productivity and self-sufficiency are based. (9) Their failure is viewed with a mixture of suspicion and scorn and their need for public assistance clashes with prevailing economic theories and cultural norms. (10) Those who fail to avail themselves of the opportunities of the marketplace are deemed to have forfeited their rights to the goods and services it produces.

The tension between these two sets of principles is revealed most dramatically in the application of the Rule of Law to the poor. The Rule of Law, as an axiom, does not distinguish between those who can purchase legal services and those who cannot. On the contrary, the principles of the Rule of Law as a democratic norm suggest that all citizens, rich or poor, are beneficiaries of its actualization. (11) But it is also true that the values that flow from legal justice principles celebrating democracy often clash with the values of self-sufficiency that look upon reliance on assistance with disapproval. This tension produces grudging and limited assistance for the poor who require access to the law. It transforms the Rule of Law into a rigidly defined welfare benefit or donation which, in keeping with welfare strategies and principles of charity, is available only to a limited number of the poor. (12)

This Article examines the tension between these principles. It suggests that despite the resonance of the national narrative of the Rule of Law, this ideal is subordinate to the ideology of self-sufficiency. For those unable to purchase legal services, and therefore forced to resort to public assistance and private charitable aid to obtain access to the courts, the law is transferred from the sphere of rights to the realm of largess. Juridical and constitutional principles of equal justice under the law clash with cultural and normative stereotypes of the poor. The manner in which this tension is resolved suggests that the inability of the poor to be self-sufficient leads toward forfeiture of the benefits of the Rule of Law.

Although the tension between these principles is constant, it is also subject to changing political values and economic circumstances. Policy shifts in response to economic and political conditions, including cuts to social welfare programs, act to arrest efforts to ameliorate social inequalities. (13) Recent attacks on institutions that provide legal services to the poor, which have unfolded within the context of these trends, suggest an increasing willingness to deny the poor equal access to the law. The success of the challenges to legal services signifies the triumph of market concerns over the promise of the Rule of Law. It reveals that the cultural dimensions and prevailing attitudes about public and private largess have entered the national narrative addressing the Rule of Law for the poor.

This Article focuses on access to the law in civil matters for which there is no right to counsel. Part I reviews the principle of the Rule of Law as an ideal with rhetorical import that may exceed its ability to perform, but notes that it continually shapes national values and induces the provision of legal services to the poor. Part I examines the benefits provided by access to the law as well as its particular significance for the poor whose individual needs for relief and collective requirement for reform heighten the need for legal recourse. Part I also reviews historical efforts to meet the legal needs of the poor through legal services, with law clinics and public interest law firms serving as complementary measures. (14)

Part II examines recent legal events that have diminished resources by which the poor may access the law. It reviews the congressional assaults on legal services resulting in funding reductions and practice restrictions (15) as well as the constitutional challenge to these restrictions. (16) It also examines the constitutional challenges to Interest On Lawyers Trust Accounts (IOLTA) funding for legal services, (17) political attacks on law school clinical programs, the unsuccessful litigation to counter these attacks, (18) and a recent Supreme Court decision that has reduced the possibilities for funding litigation for poor people by narrowing the circumstances for awarding attorneys' fees in civil rights cases. (19) These events not only limit the opportunities for the poor to access the law, but also suggest that the opposition to legal services is driven by powerful ideological currents seeking to deny equal access to those who fail to take advantage of market opportunities.

Part III examines the process and implementation of the reformulated Rule of Law as a principle of largess. It explores the mechanisms used to provide law for the poor according to the structural inequities and the normative biases by which goods and services are delivered to the needy. It uses the theories of the liberal welfare state that directly influence welfare programs to understand the view of legal services as a welfare benefit subject to the same norms that shape welfare programs generally. Part III also considers the heightened relevance and effect of the principles of philanthropy on legal services as these services become increasingly dependent on private contributions. This development suggests that justice is increasingly a function of charity rather than a right under the Rule of Law.

Recognizing that current political realities reduce the possibilities for decommodifying the law and removing it from the structures of the marketplace, Part IV suggests corrective measures to expand access to the law. It argues that ongoing efforts are required to insulate the Rule of Law for the poor from the vagaries of market forces and shifting political winds. It recommends reforming existing institutional...