The pendulum swings back: poverty law in the old and new curriculum.

• Author: Davis, Martha F.

INTRODUCTION

Poverty law was a creation of the 1960s and in a broad sense, an outgrowth of the civil rights movement. Building on the civil rights movement's strategy of using law to effect social change, poverty lawyers sought to move beyond the civil and political rights agenda that was the movement's hallmark to issues of economic justice. (1)

The trajectory of this legal activism paralleled developments within the populist arm of the civil rights movement during the 1960s, as movement leaders increasingly urged adoption of reforms that would address poverty as well as voting rights and other political inequalities. (2) As early as 1963, civil rights leader John Lewis asked those attending the March on Washington for Jobs and Freedom, "What is in [President Kennedy's civil rights bill] that will protect the homeless and starving people of this nation?" (3) By 1968, at the time of his assassination, Martin Luther King, Jr., was working in conjunction with welfare rights activists to systematically expand the Southern Christian Leadership Conference's work on class and economic issues. (4)

Even in this social and political context, however, the speed with which law schools embraced poverty law was astonishing. Until the 1964-1965 school year, the idea of a non-clinical poverty law course was foreign to major American law schools. (5) Just five years later, a 1969 survey revealed that American law schools offered more than two hundred twenty-eight courses, exclusive of internship programs, that touched on poverty in some significant measure. (6)

Once schools began offering the courses, aids for poverty law teaching started to appear. Professor Paul Dodyk of Columbia Law School served as the general editor of the first poverty law casebook, Cases and Materials on Law and Poverty, published by West in 1969. (7) A scant four years later, there was enough new material and sufficient law school demand to support a substantially-revised second edition of the casebook, this time co-edited by Dodyk (who had since left Columbia for private practice) and five Columbia Law School professors. (8) As Professor George Cooper's preface to the new edition stated,

The mind boggles at the developments which have swept through this field in the four brief years since publication of the first edition.... In 1969 the subject of "Law and poverty" was more a gleam in the authors' eyes than a developed concept. It is now a fully recognized subject in law school curricula with two published casebooks, and several more casebooks and a treatise forthcoming. (9) The Dodyk casebook was tailored to a poverty law survey course addressing the major legal issues facing low income people. Indeed, the subject matter covered in the casebook was so broad that no single scholar could master it. Instead, the casebook was composed of in-depth sections on income maintenance, family law, housing, racial discrimination, and consumer protection, each written by a different author. (10)

Yet even in the 1960s, this survey approach to poverty law was in the minority. The list of poverty law courses compiled for the National Conference on the Teaching of Anti-Poverty Law, held at Fordham Law School in 1969, cites thirty-eight survey courses, but many more specialized courses on social legislation, urban problems, juvenile delinquency, family law of the poor, welfare law, and poverty and race. (11) Even courses with such run-of-the-mill titles as "Torts Seminar," "Criminal Law," and "Labor Law" were listed as poverty law courses, presumably because their content included a special focus on the law relating to poor people. (12)

Faced with the wide-ranging concepts of poverty law reflected in these course offerings, Professor Thomas Quinn led off the 1969 conference by posing a question for the law professors in attendance, "[W]hat is poverty law?" (13) Perhaps, he speculated, it is a new subject, like administrative law, that is "scattered" through the curriculum and can benefit from being brought together into one course. (14) Or perhaps, he suggested, it is a new field, with many different parts, calling for specialized courses focusing on its many nuances. (15) Or finally, he posited, poverty law is just a small part of a new, larger field in which the individual, rather than the corporation, is the central concern--a burgeoning field that would require a fundamental shift in law school curricula. (16)

Quinn did not answer his own questions directly. Nor, by and large, did those attending the 1969 conference. Rather, the discussions focused on teaching methods and classroom processes. (17) Recitations of course content provided the primary clues as to the professors' conceptions of poverty law's role in the law school curriculum. (18) Finally, near the end of the conference, Professor Gary Bellow of the University of Southern California threw up his hands in frustration and stated:

As I have attended these proceedings, I find myself very troubled by much of this conference and our discussions thus far--not because I disagree very much with what's been said, but because the conceptual framework of our discussions has not been defined. We have not stated what we mean by poverty, or poverty law, nor have we given context to the goals of legal education to which we have alluded. (19) Arguing that law schools should be concerned with issues beyond the mere training of lawyers to serve manpower needs for representation of the poor, Bellow opined that

if ... we see poverty law courses as addressing themselves to a set of fundamental issues about the nature of man and society, if such courses are perceived as vehicles for raising issues about the law's relationship to race, discrimination, wealth, and class-concepts which too seldom find their way into the law school curriculum, then we must address ourselves to very different issues about the relationship of "poverty law" to the goals of legal education. (20) The professors attending the 1969 conference were relatively radical members of the professorial ranks. As described by Professor Quinn, alluding to the fashions of the 1960s, they were "very young and very hairy." (21) Yet the immediate response to Gary Bellow's outburst was despair. Raising "issues about the law's relationship to race, discrimination, wealth, and class-concepts" was a significant departure from the traditional law school curriculum and, Professor Quinn predicted, "I do not think that we will ever reach that level of change in the law school." (22)

Poverty law has been a part of the legal academy for more than forty years, yet Quinn's initial question, "What is Poverty Law?" still hangs over the field. This Essay addresses the question in two parts. It begins by examining the causes of the wildfire of poverty law instruction in the 1960s and early 1970s, and the purposes that these early courses were intended to serve. In the second part of this Essay, I ask what this history suggests about poverty law in the law school curriculum today and in the future. We can learn, and indeed, for the most part, have learned, some fundamental lessons from the past: that poverty law is innately broad, global, interdisciplinary, and focused on social change. Lawyers cannot address poverty by themselves or in a vacuum bound by national borders. Likewise, history and experience suggest that regardless of the extent to which poverty law is integrated into other subjects or reflected in diverse courses, there should be a core syllabus or a center point where students gain a common vocabulary and a deep understanding of the "jurisprudence of economic equality." (23) It is this understanding, not technical legal skill alone, which enables lawyers to contribute to the social change agenda of poverty law, i.e., the eradication of poverty. But history also helps us predict the future. And the history of poverty law suggests that the growing interest of law students, scholars, and clients in domestic applications of human rights approaches--emphasizing economic and social rights--is a new version of the poverty law agenda that arose in the 1960s. As we continually reassess and renew pedagogical and theoretical approaches to law and poverty, human rights provides a fresh lens through which to address these issues in the 21st century curriculum and a vehicle for responding to Bellow's challenge to examine "fundamental issues about the nature of man and society." (24)

1. A BRIEF HISTORY OF POVERTY LAW

   1. The Origins of Poverty Law

      The idea of poverty law did not come solely from within the academy. Rather, beginning in the early 1960s, law schools developed a growing range of poverty law-related courses in response to the external interests of foundations, potential law student employers, client activists, the legal profession, and policy makers. (25) Internal pressure was also brought to bear by activist students and law teachers, many of whom regularly traveled between legal services practice and academia. (26) These sources exercised considerable influence over the substantive content of this new area of practice and instruction. For example, just as new sectors of the legal profession, notably legal services lawyers, began offering legal services to the urban poor, curricular developments adopted a substantive focus on the problems of urban poverty. (27)

      Ironically, perhaps, money played a large role in the initial development of poverty law curricula in the academy. At the dawn of the 1960s, coinciding with its efforts to stimulate large-scale assaults on juvenile delinquency and urban poverty, the Ford Foundation made a major financial commitment to assist law schools in developing and supporting clinical programs offering legal services to the poor. (28) In particular, from 1959 through 1965, the Ford Foundation provided $800,000 to fund clinical programs at nineteen law schools through an initiative called the National Council on Legal Clinics...