Legal Aid and Social Policy: Managing a Political Economy of Scarcity

• Published date: 01 March 2023
• DOI: http://doi.org/10.1177/00027162231200118
• Author: Jamila Michener
• Date: 01 March 2023

ANNALS, AAPSS, 706, March 2023 137

DOI: 10.1177/00027162231200118

Legal Aid and

Social Policy:

Managing a

Political

Economy of

Scarcity

By

JAMILA MICHENER

1200118ANN THE ANNALS OF THE AMERICAN ACADEMYLEGAL AID AND SOCIAL POLICY

research-article2023

Civil legal systems structure Americans’ relationship to

the welfare state, offering grounds for contesting deni-

als of benefits and preventing material harms like evic-

tion. I draw on data from interviews with legal aid

providers and tenant organizers to show how civil legal

resources facilitate access to the safety net, and I argue

that yoking legal aid and social policy is a strategy for

managing a political economy that systematically

undersupplies essential resources and protections.

Notwithstanding the democratic ideal of social and civil

rights as self-reinforcing and mutually constitutive, the

relationship between social policy and civil legal aid

underscores how these domains operate as substitutes

rather than complements. Politically induced scarcity

makes it necessary to leverage legal mechanisms to

protect vulnerable Americans. Such necessity impli-

cates acute democratic deficits that are most aptly

addressed through fundamental changes to existing

power relations.

Keywords: legal aid; social policy; political economy;

civil legal inequality; tenant organizations

When the COVID-19 pandemic struck in

early 2020, it intensified economic pre-

carity among the most vulnerable Americans

(Grinstein-Weiss et al. 2021; Hardy, Hokayem,

and Roll 2021; Kochhar and Sechopoulos

2022). People living in or near poverty strug-

gled to remain healthy, safe, housed, and

financially stable. The problems exacerbated

by the pandemic spanned a wide gamut of

domains. Unemployment skyrocketed, evic-

tions were poised to surge, and public benefits

were often difficult to access. Such material

needs generated legal needs. Colossal backlogs

Correspondence: jm2362@cornell.edu

Jamila Michener is an associate professor of govern-

ment and public policy at Cornell University. She

is the author of Fragmented Democracy: Medi-

caid, Federalism, and Unequal Politics (Cambridge

University Press, 2018).

138 THE ANNALS OF THE AMERICAN ACADEMY

in processing applications for unemployment compensation, Medicaid, and other

crucial assistance programs drove people to seek legal help in obtaining and

retaining vital benefits. Threats of eviction—before, during, and after federal and

state eviction moratoria—brought renters to the doors of legal services organiza-

tions. Ron Flagg, the president of the Legal Services Corporation (LSC), the

largest funder of civil legal assistance in the country, reported “substantial

increases in the number of people who qualify for civil legal aid and a surge in

the [problems] facing those people” (Kaplan 2021).

Accelerated demand for civil legal assistance during the pandemic under-

scores the close tethering of material and legal needs, particularly in the lives of

low-income Americans. Consider unemployment. In the U.S., reduced income

due to job loss makes a person more vulnerable to “the experiences of rights

problems” that create a need for legal services (Pleasence and Balmer 2010,

475).1 For instance, becoming unemployed can lead to difficulties navigating

complex welfare bureaucracies, cause delays in paying debtors, instigate tensions

with landlords, aggravate immigrants’ challenges with documentation status, and

much more. These and other connections between economic and legal needs are

neither new nor surprising. Marshall (1950) seminally articulated civil rights

(largely secured through law to ensure things like “the right to conclude valid

contracts, and the right to justice”), social rights (guaranteeing a “modicum of

economic welfare and security”), and political rights (including democratic par-

ticipation and “the exercise of political power”) as the triumvirate of democratic

citizenship. Marshall (1950, 11) argued that this trio of rights denoted “full mem-

bership” in the political community. Other influential thinkers have advanced

distinct but aligned philosophies about the nexus between civil rights, social

welfare, and political standing. King (1967) powerfully asserted that “the prob-

lems of racial injustice and economic injustice cannot be solved without a radical

redistribution of political and economic power.” In this way, King incisively linked

encroachments on civil rights (racial injustice) and the deprivation of social rights

(economic injustice) to a call for political rights (power).

While Marshall, King, and others offered archetypes of interconnected and

self-reinforcing rights (social, civil, political), this article lays out a reality that

diverges starkly from that ideal. I show that instead of the civil, social, and politi-

cal domains fortifying one another to create mutual underpinnings for a robust

democratic citizenship, they operate as substitutes. As public resources dry up

and the welfare state weakens, social rights are attenuated. Such an outcome is

especially likely when the political power of those most reliant on the welfare

state is limited. With few avenues for material help and constrained political

wherewithal, marginalized denizens and those who support them (e.g., social

service providers) turn to civil legal institutions (e.g., courts, legal aid agencies)

for redress. In this way, yoking legal aid and social policy is a means of averting

destitution in the face of enfeebled political and social rights.

This article draws on in-depth qualitative interviews with legal services provid-

ers and tenant organizers to elaborate the political-economic processes linking

civil legal aid and social policy benefits and to articulate the logic of codelivery. I

find that the codelivery of legal assistance and social welfare benefits is a strategy