A home of its own: the role of poverty law in furthering law schools' missions.

• Author: Failinger, Marie A.

Eighteen years ago, I (perhaps optimistically) suggested that poverty law was "home at last" in the legal academy. (1) At that time, the American Association of Law Schools ("AALS") Section on Poverty Law was growing, which suggested that poverty law had arrived as its own discipline. (2) Also, Loyola New Orleans School of Law's emerging poverty law program--which was designed to engage every student in that school in the subject of poverty law--promised to provide a model for a bold new beginning for the discipline of poverty law in American law schools. (3) Yet, only recently, other members of the Section on Poverty Law and I were wondering why the Section's Annual Meeting Program on the exciting new "Civil Gideon" effort in several states (4) went largely unattended by the mainstream academy.

To the nostalgic, we might seem light years away from the heady days of the late 1960s and the early 1970s, when scholars like Jean and Edgar Cahn asked questions like "Power to the People or the Profession?" in distinguished publications, such as the Yale Law Journal. (5) Indeed, more recent arrivals to the discipline of poverty law may even yearn for the early 1990s, when academics attempted to produce textbooks, scholarship, and curriculum plans for substantive poverty courses, and to organize an "Interuniversity Consortium on Poverty Law" with the support of the Ford Foundation. (6)

Lawyers and academics dedicated to poverty law, however, cannot afford to be a nostalgic lot. As the saying goes, the poor are always with us, and the interest of the legal academy in poverty law tends to wax and wane as regularly as society's interest in skinny ties or short skirts. One response to that reality might be for poverty law scholars to dig in their heels and promise themselves that they will not give up their commitments and their courses, no matter what their enrollments, and no matter how isolated they may feel in their institutions or within the wider academy. So long as mortality, and even retirement, are facts of life, however, the success of that response depends upon the fortuity that there will continue to be enough young legal services and public interest lawyers who want to succeed them in the move from practice to the academy. It also depends upon the presumption that those lawyers' dedication to their former clients and practice colleagues will be strong enough to sustain that self-promise as faculty politics, decanal demands, and the allure of recognition and rewards from teaching and writing in other fields exert their influence on the shape of their professional lives.

A second, ultimately more promising response, I believe, is a two-fold strategy. First, law professors and lawyers who are committed to the teaching and practice of poverty law need to "get under the skin" of their law school environment. Poverty law academics, both classroom and clinical teachers, can play a leadership role in integrating poverty law courses into the life and distinctive missions of their law schools in such a way that their law school faculty will be as hard-pressed to imagine a curriculum without poverty law as they would be to contemplate legal education without Torts or Civil Procedure. Second, if there is one thing that practicing and teaching poverty law has taught the academy, it is that aging poverty law faculty have a moral obligation to serve as community-building "elders" for newer poverty law scholars in the academic community.

While the practicalities of keeping together this larger community of poverty law scholars are beyond the scope of this Article, I will propose that the first objective--"getting under the institution's skin"--is not necessarily the impossible goal it might seem to those who have struggled to keep poverty law alive and visible in their law schools. To them, such a proposal may seem as unthinkable as the suggestion that poverty lawyers could convince political parties to make an anti-poverty platform the central ongoing theme of election politics. Poverty advocates who are willing to carefully attend to their law school's mission and vision and willing to give careful thought to how poverty law may play an important role in achieving that vision, may win a more lasting place for poverty law in the curriculum than it has heretofore managed to achieve in most law schools.

In this Article, I will argue that poverty law can be a key piece in the curriculum of law schools who define their mission, at least in part, as educating lawyers according to one of five paradigms: 1) lawyers as public citizens and leaders; 2) lawyers as skilled technicians of the law; 3) lawyers as skilled counselors; 4) lawyers as advocates on behalf of a cause in legal institutions; and 5) lawyers as transformational partners with the poor.

1. PRELIMINARY WORDS ABOUT THE IMPORTANCE OF HUMILITY

   Before I sketch these various scenarios that might include poverty law in the curriculum and some of their potential drawbacks, I would underscore Matthew Diller's 1995 plea about the importance of humility in undertaking any such integration project. (7) First, I should admit the modesty of this particular sketch itself: the visions of lawyering that drive legal education are largely traced in the literature, with much more care, depth, and thought than I will be able to describe or footnote here. On clinical programs alone, much more seasoned lawyer-scholars have produced reams of literature. (8) And the contours of "substantive poverty law," once taught in a single course or general clinic in some law schools, have happily morphed into many specialties, such as disability law, mental health law, children and the law, elder law, government assistance, landlord tenant law, and consumer protection, as well as broader vision courses with such titles as "Politics of Law Practice Course." (9) While many of the approaches ! sketch almost seem to demand an experiential component for the students, placing them in a setting where they can interact with poor people in some way, I will focus on poverty law conceived more broadly than just clinical education.

   Moreover, I will not try to demonstrate here that poverty law is the only, or even the best, vehicle for teaching law students to visualize their professional lives within the models of lawyering that I will sketch. It may be that, say, Torts or Corporations works just as well as poverty law in teaching these lessons; I leave that argument to others with more depth in these other courses. Rather, I will offer an overbroad typology of these visions for practice as a way of thinking about the role and design of substantive poverty law courses or emphases in the curriculum. The course outlines and materials to make the role of poverty law in these visions viable, as well as the critique and refinement necessary to create a living, breathing institutional integration of poverty law, remain to be completed.

   A second note about modest expectations: any law teacher who establishes a poverty law integration project that will survive in the legal academy needs to be humble about the limits of lawyering itself. The largest and most self-defeating temptation facing both poverty advocates and scholars is to imagine a quasi-salvific role for the law or lawyers in the complex and intractable social, economic, and spiritual problems that face most of the poor. Many of the histories of these experiments tell us as much. Though Bill Quigley has recently sent out a passionate and compelling battle-cry for a poverty lawyer revolution (10) that needs to be taken seriously, in my view, the heady days in which the Cahns, (11) Ed Sparer, (12) and others (13) imagined that lawyers would participate in movements to radically improve social life for the poor are gone. Their over-large expectations were ultimately self-defeating for lawyers who have tried to sustain a poverty law practice that can withstand the times of lean resources and invisibility. (14) By themselves, no lawyer and no legal system can deliver the sort of transformational change in the social, political, and economic life of the nation that these early pioneers hoped would bring true justice to the poor. To sell that bill of goods to young poverty lawyers or academics is to invite despair and to doom the practice and study of poverty law.

   Similarly, poverty law academics need to be realistically optimistic about how much transformation of individual law students can be accomplished in the three years of law school. To imagine that a poverty law class or clinical curriculum by itself has the power to revolutionize the practice of law among one's graduates--indeed, even among one's graduates who go into public interest--is also self-defeating. Perhaps the highest accomplishment of students who survive the law school admissions process is that they have successfully integrated the assumptions, norms, and practices of mainstream social life so that they can be successful in that world. In addition to learning how to conform to social expectations, avoid risk, and maximize their social and economic status, they have likely embraced simplistic and perverse generalizations about the poor and accepted social norms that justify the higher worth they place on their own lives and pleasures.

   Moreover, many law students are likely to have internalized a centuries-old social perspective that the poor deserve their fate (15)--why else would the poor be always with us? At the least, most have come to believe that the problems of the poor are not our responsibility or business, and become detached or even indifferent to their tragic circumstances. Some scholars suggest that law school "does this" to law students, (16) embarrassing them out of their commitment to public interest practice, making it difficult for them financially to take a public interest job, or suggesting that working for poor people will be boring. (17) A more likely...