Musical chairs and tall buildings: teaching poverty law in the 21st century.

• Author: Wax, Amy L.

1. INTRODUCTION

   America has not yet abolished poverty. The definition and proper measure of poverty have long been a subject of controversy, and there is no consensus on how many people in the United States are poor. (1) But no one denies that the poor continue to be with us. This is unlikely to change soon.

   It does not follow from this that poverty should be addressed--or will continue to be addressed--as a distinct subject within the law school curriculum. Indeed, the status and future of this area of inquiry within law schools is somewhat in doubt, even as the subject retains some vitality. In the most recent American Association of Law Schools Directory of Law Teachers, this area of teaching and research is denominated "welfare law." (2) The names of law faculty listed under this rubric fill about a page and a half, with most individuals indicating that they are not actively teaching a course. (3) The "big name" law schools (U.S. News and World Report top twenty) are not very well-represented on the list. Although Yale Law School has a disproportionate number of professors who acknowledge interest in this field, no one at Harvard or Chicago is listed as teaching welfare law. (4)

   As someone who attended college and law school in the 1970s and 1980s and then went on to teach law in the 1990s, I can attest that welfare law was once a more popular course than it is today. But its position has always been tenuous. Poverty has never been considered a mainstream part of the law school curriculum; nor has it commanded a central place in legal scholarship. There are signs that its popularity has, if anything, recently waned. Michigan, for example, for many years offered a well-attended poverty law class taught by faculty member and then dean Jeffrey Lehman. He has since left Michigan for Cornell, and that high-profile Michigan course no longer exists.

   What accounts for welfare law's current status and continuing marginalization? Because poverty law is not a core part of a traditional legal education, it has no standard, agreed-upon curriculum. What is taught in poverty law is up for grabs and is heavily influenced by the interests and convictions of the faculty instructor. Not surprisingly, courses are highly variable, and their contents have evolved in response to political developments and shifting notions on the causes and cures of economic disadvantage.

   Prompted by a heightened concern with the rights of the poor and especially with the dire situation of American blacks, welfare law courses began to appear in law schools in the 1960s. The presentation and design of these initial courses were strongly informed by left-leaning assumptions about the nature of poverty and its origins. On this view, economic deprivation is a product of an unjust economic and social system ripe for reform. Many proponents believed that inequities could be addressed through an agenda of policies, regulations, and programs designed to work fundamental changes in the functioning of government and the structure of society. The ultimate goals were laudable, if somewhat naive: to rectify injustices, procure a better deal for poor people, enhance the power of the disadvantaged, and improve their lives.

   The appearance of these courses historically coincided with the enactment of Great Society initiatives and a dramatic expansion of New Deal programs such as Aid for Families with Dependent Children ("AFDC"). The roles these courses envisioned for lawyers included not only pressing for the enactment of new laws and policies designed to protect the interests of the poor, but also advocating for vigorous judicial enforcement of existing ones. In keeping with lawyers' comparative advantage, the legal piece of the project increasingly came to be viewed as a matter of procuring "rights" and maximizing entitlements within a system that, it was thought, systematically worked to undermine them. Thus, although the aspirations expressed in these courses were vaunting and potentially quite far-reaching, the scope of their immediate concerns was, in actual practice, somewhat technical and limited. Many poverty law courses had a clinical focus and were preoccupied with litigation strategies. Meeting the immediate legal needs of poor people within the existing system became the chief priority. Litigation centered around a mix of positive and negative entitlements: protecting the poor from landlords and employers, enforcing proscriptions against race and class discrimination, rectifying inequalities in education and other services, and procuring a panoply of government benefits.

   To the extent that some courses were more analytical, conceptual, and critical in their approach, strong assumptions were often at work. Students were invited to ask how the system could better be designed to protect the poor and improve their lot through redistribution or other measures. A consensus emerged that the system was at fault. The poor were the victims of unjust structures and social arrangements. It followed that the system was in dire need of reform. The focus was on what could be done for and to people. The immediate priority was meeting the poor's most pressing needs and giving them the resources they were lacking. The broader agenda was to produce a more fundamental change so that the poor could acquire more power, more money, and more of the good things in life. The strategy that emerged relied heavily on governments, with a panoply of new official programs proposed to transfer resources and transform the lives of the least well off.

2. THE EVOLUTION OF WELFARE LAW

   During the 1970s and 1980s, the problem of poverty failed to yield to programmatic efforts and, in some ways, actually got worse. (5) These decades were a period of increasing awareness of and impatience with inner city poverty, especially among the black population. The perceived failure of many War on Poverty initiatives created political polarization, with calls to "do something" about the dramatic increase in out-of-wedlock childbearing, family disintegration, racial unrest, crime, drug dealing and use, educational failure, and other developments associated with economic and social deprivation. The continued expansion of entitlements like AFDC and the food stamps program became "hot button" issues on which the electorate was sharply divided. (6) Some saw these initiatives as contributing to social disorder, while others saw them as essential to the just treatment of an increasingly deprived population.

   The political salience of poverty fueled activity within academia and the policy community. What to do about continuing deprivation became a widespread and well-funded pre-occupation. A cottage industry, extending to non-profit policy organizations, government agencies, and think tanks across the political spectrum, sprung up to deal with poverty's stubborn persistence and the inadequacy of existing programs. Although left-leaning thinkers had long been concerned with these issues, analysts on the right began to get into the act. In particular, the idea that welfare assistance programs were not the solution to the problem of poverty but actually part of the problem gained currency.

   Charles Murray's influential 1984 volume Losing Ground argues, in effect, that welfare causes poverty. (7) Welfare, maintains Murray, robs the poor of initiative and breaks up families by encouraging men not to marry the mothers of their children but instead to abandon them. (8) Welfare provides an incentive for women to obtain benefits by bearing children outside of wedlock. It discourages work by providing cash and non-cash benefits that amount to better compensation than could be earned through employment. (9) For Murray, the best way to lessen poverty is to abolish all welfare programs. (10)

   A few years later, Myron Magnet, in The Dream and the Nightmare, advanced a broader cultural theory to explain the persistence of poverty. (11) Like Murray, Magnet believes that the poor's lack of drive and determination and their unwillingness to work hard were crucial. (12) But unlike Murray, Magnet located the source of these behaviors not primarily in economic incentives but in culture. (13) For Magnet, the chief job of any civilization is soul-craft: the transmission of the bedrock values of mature, educated, honest, hardworking, caring, and responsible people. (14) The poor represent society's failures, those who have not inherited the central "bourgeois" values of the mainstream culture. (15) Those values came under attack by the liberationist ethos and ideas of the 1960s. (16) That attack undermined the very habits and beliefs that would have enabled the poor to better their lot. (17)

   Murray and Magnet share the conviction that the economic system, uncorrupted by meddlesome and perverse government programs, provides the prerequisites for the success of all people. Both accept that ample opportunities exist within the current structure for able-bodied individuals to achieve a self-sufficient, decent life. For Magnet, welfare programs are not the primary culprit; rather, the adoption of bad ideas has proved pernicious. (18) Although Magnet blames a perverse cultural shift, he concedes that welfare worsens the situation by reinforcing the belief that the poor are not responsible for their behavior, that they cannot overcome their problems through hard work, and that welfare is something to which they are "entitled." (19)

   For those interested in the problems of the disadvantaged, the work of Murray and Magnet could not be ignored. These authors challenged ways of thinking about poverty that were dominant in the legal academy. But the challenge was not just in the realm of theory. In thinking about causes and cures, poverty studies increasingly took an empirical turn. Reams of data were collected by think tanks, academic social scientists, and government agencies. Experts sought to describe and characterize poverty...