Reinventing poverty law.

• Author: Cahn, Edgar S.
• Position: Symposium: The Informal Economy

Edgar Cahn, founder and president of the Time Dollar Network, argues that the paradigm of legal service is at odds with the dictates of the market economy and its underlying work ethic. He proposes a solution to the growing crisis in legal services that permits both the fulfillment of its original goals and the effective use of a significant, and as yet untapped, resource: exchange of Time Dollars. Time Dollars serve as a medium for trading time spent rendering public service for the receipt of legal services. Time Dollar networks facilitate the integration of otherwise marginalized and neglected people into a system that promotes feelings of productivity, community, and reciprocity.

We need to reinvent poverty law. This has been true for some time, but we can no longer put it off. We are losing ground, not gaining. For a decade, poverty has been rising and class stratification has been increasing. There has been a massive transfer of wealth from the middle class and the poor to the wealthy.(1) Women and children comprise increasingly large portions of those trapped in poverty. None of this is "our fault." But it becomes our fault if we fail to change tactics in the face of an altered reality.

Things are not going to change without radical rethinking, restructuring, and action. True, an era of unremitting hostility to legal services has ended, but the prospects for significantly expanding that program are slim, at best. Even with a sympathetic and supportive administration, scarce resources and competing imperatives sharply constrict growth. The deficit is an omnipresent problem, as is the negative balance of trade and foreign competition. The elderly are locked into a divisive intergenerational battle over resources with the young. The plight of the homeless, the needs of AIDS patients, the growing dimensions of substance abuse, the demands of the environment, the state of public housing, the dire condition of public education, the cost of health care reform--all lay immediate claim to scarce resources.

The problems facing the poor are compounded irreversibly by the globalization of both wealth and poverty. International economic competition pits our poor against the poor of the rest of the world; our work force must now compete against laborers in economically developing nations, who earn far less.(2) At the same time, an apprehensive middle class and a besieged wealthy class continue to circle the wagons. Any efforts undertaken by legal services attorneys to redistribute wealth, whether by legislation or litigation, are bound to meet with continued and increasing political and judicial resistance.

This Essay proposes that we mobilize time in a way that empowers the poor; that dramatically enhances our collective capacity to meet need, reduce suffering, and expand opportunity; and that renews, even for the least privileged among us, the promise of this land. The Introduction to this Essay explains the current urgency of society's need to reinvent poverty law. Part I of this Essay explores a new strategy for mobilizing the value of time through a currency called service credits or Time Dollars, examines experiments with this strategy, and delineates its implications. Part II argues that clients need to become co-producers of legal services, to ensure that their own voices play a central role in their legal representation. Part III specifically proposes that poverty law practitioners develop a fee-for-service arrangement that would oblige clients to pay for legal services with this new currency, Time Dollars,(3) earned by helping others. By requiring payment in Time Dollars, poverty lawyers turn their clients into co-producers of justice and turn legal services for the poor into a major stimulus for community organization and self-help. The direct impact will be greatest on the nonmarket economy-but, as we shall see, this plan also has significant ramifications for the market economy and for how we approach social problems. Part Ill details the structure of a Time Dollars program and addresses some of the difficulties that sometimes arise. Part IV concludes, describing the potential of Time Dollars to form a new covenant that transcends the conventional paradigm of rights and remedies.

INTRODUCTION

There is a fundamental need to "reinvent poverty law." If we are to be candid, our mission, whether equal justice or empowerment, cannot be achieved through linear expansion in the ranks of lawyers serving the poor. Without a more fundamental change, legal services for the poor will remain mired, fighting valiantly, winning more than losing--but unable to make major inroads on poverty and disenfranchisement. There is danger for those of us in the so-called "helping professions" that we will constitute a latter-day version of the Bureau of Indian Affairs, multiplying and prospering while lamenting the inability of our wards to escape from a state of dependency we perpetuate.(4)

To become agents of justice and catalysts of empowerment, we first must be clear about our objective. The legal services program brought a new dimension to the older tradition of legal aid. Legal aid for the poor represented an historic commitment to the ideal of equal justice. The legal services program, as part of the War on Poverty, sought to do something rather profound. It asked: What contribution can lawyers make to enable people to find their way out of poverty?(5) And in asking that question, it also had to ask: What is poverty? To reinvent poverty law, we, too, must begin with the fundamental question: What is poverty?

Poverty is, at least, being poor; it is deprivation of the basic necessities of life. But it is more than an economic state. Poverty is also isolation, lack of access to resources and support systems. For this reason, cohesive families tend to escape poverty's worst effects, while isolated individuals and single heads of households do not. Poverty is also powerlessness: being trapped, relegated to a status from which one cannot escape, impotent to change circumstances that affect one's fate and unable to alter the conduct of others that impacts adversely on oneself, one's family, one's neighborhood. Poverty is ultimately economic, social, and civic disenfranchisement.

Originally, the mission of legal services was to help people escape from poverty by securing a redistribution of goods, services, and power on a more equitable basis. In the late 1960's and early 1970's, legal service programs made headway by expanding entitlements and creating new remedies for consumers and tenants. In effect, we helped the poor increase their share in the market economy by expanding rights to receive money, rights to consume, and rights to share. We called these rights "The New Property."(6)

In recent years, lawyers have been far less successful in expanding such rights. As this society moved from an era of sustained growth and surplus to budget deficits and trade deficits, it has become less willing and somewhat less able to address social problems by expansion of those rights. Political and judicial receptivity to further redistribution diminished sharply.(7) And contemporary efforts to expand rights consequently have been frustrated.

The basis of this predicament, however, is not simply society's lack of material abundance. This society produces enough and has sufficient know-how and productive capacity to satisfy the material needs of every American. The issue is distribution.(8) We distribute wealth based on the logic of the market economy. Those who contribute capital or labor are entitled to a return, although the lion's share seems to go to those who contribute capital.(9) Those who do not contribute are not entitled to a return-except to the extent that taxes redistribute wealth generated by the market economy.(10)

This society is committed to protecting the work ethic. Unless people contribute, they cannot share. We adhere to this principle as a matter of historical faith. That moral fervor was buttressed by experiments with a negative income tax that gave generous, unconditional financial support to welfare-dependent families. Evaluations of these experiments, which ran from the late 1960's to the mid-1970's, indicated that such payments reduced the work effort of the poor and actually added to the instability of families.(11) Any distributive scheme that undermines the work ethic is regarded as threatening to our capacity to maintain or improve our nation's standard of living.

Trying to retain the work ethic as the primary distributive mechanism for our own society becomes more difficult when there is less work that pays above-poverty wages.(12) When global competition pits our domestic work force against those of other nations,(13) our poor and our lowest paid workers are underbid by the poor of nations with lower standards of living.

As a result, any advocacy efforts focused uncritically on redistribution are likely to prove unsuccessful, even under an administration that is concerned with poverty and supportive of legal services. We have to go at it differently. We have to find ways that enable the poor to increase the pie, not just fight for a larger piece of a fixed pie.(14)

At first blush, that seems quite impossible. Many poor people--for example children, mothers of newborn infants, dropouts, or the homeless--seem ill-equipped or unsuitable for the work force. Others, such as seniors and people with criminal records, are excluded from the work force. Still others are the working poor who, despite their best efforts, cannot earn enough to escape poverty. So what might the poor possibly do if they are excluded, subordinated, or rejected by the market economy? And what can lawyers contribute that would make any difference, other than trying to obtain greater access for the poor to the market economy?

1. Converting Time Into Productivity And Empowerment

   Time is a resource that remains underutilized. At...