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Lawyering for Poor Communities in the Twenty-First Century, 25 Fordham Urb

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Lawyering for Poor Communities in the Twenty-First Century, 25 Fordham Urb Fordham Urban Law Journal Volume 25 | Number 4 Article 1 1998 Lawyering for Poor Communities in the Twenty- First Century Matthew Diller Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Jurisprudence Commons Recommended Citation Matthew Diller, Lawyering for Poor Communities in the Twenty-First Century, 25 Fordham Urb. L.J. 673 (1998). Available at: https://ir.lawnet.fordham.edu/ulj/vol25/iss4/1 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. LAWYERING FOR POOR COMMUNITIES IN THE TWENTY-FIRST CENTURY Matthew Diller* On a number of levels, it may appear that this is a bleak moment at which to ponder the future of poverty law. Certainly, challenges abound. The leadership in Congress has targeted the Legal Serv- ices Corporation ("LSC"), seeking to defund it completely.' Although the prospect of complete defunding appears unlikely at this point, LSC's budget has been cut by thirty percent since 1995.2 To make matters worse, LSC funded programs have been barred from engaging in a wide variety of activities on behalf of indigent clients.3 Among the prohibited activities are some of the most po- tent tools available to poverty lawyers, such as class action litiga- tion, and legislative and administrative advocacy.4 At the same time that budget cuts have decreased the number of lawyers serving poor communities5 and restrictions have limited the activities of those that remain, Congress has enacted sweeping changes in many of the laws that affect poor communities most di- rectly. Thus, changes in federal welfare, 6 immigration,7 Medicaid' * Associate Professor of Law and Associate Director of the Louis Stein Center for Ethics and Public Interest Law, Fordham University School of Law. 1. For a compelling account of the current attack on Legal Services, see Alexan- der D. Forger, Address: The Future of Legal Services, 25 FORDHAM URB. L.J. 333 (1998). 2. See LOUISE TRUBEK & JULIE NICE, CASES AND MATERIALS ON POVERTY LAW THEORY AND PRACTICE 213 (1997). 3. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, sec. 504, 110 Stat. 1321 (1996). The two class actions challenging these restrictions have, to date, been unsuccessful. See Legal Aid Society of Hawaii v. LSC, 981 F. Supp. 1288 (D. Haw. 1997), aff'd in part, vacated in part, 145 F.3d 1017 (9th Cir. 1998), petition for cert.filed, 67 U.S.L.W. 3149 (Aug. 17, 1998)(No. 98-296); Velasquez v. LSC, 985 F. Supp. 323 (E.D.N.Y. 1997), appeal pending. 4. For fuller discussion of the issues raised by Congress' imposition of restrictions on lawyers who work in programs that receive LSC funding, see Symposium, The Future of Legal Services: Legal and Ethical Implications of the LSC Restrictions, 25 FORDHAM URB. L.J. 279 (1998). 5. Since LSC's funding was cut by 30% nationally from $415 million to $283 mil- lion, 12.9% of program staff has left and 12.7% of local legal services have closed. See Alan W. Houseman, Can Legal Services Achieve Equal Justice, (visited Apr. 8, 1998) <http://www.clasp.org/pubs/legalservices/dialogue.htm#2>. 6. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193 [hereinafter PRWORA]. 7. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009. 673 674 FORDHAM URBAN LAW JOURNAL [Vol. XXV and housing9 law heighten the demand for lawyers in poor commu- nities. Lawyers are critically needed to provide information about the changes that are underway, to represent individuals affected by these new laws, and to influence the ways in which these laws are implemented. The situation is particularly dramatic with respect to welfare re- form. Congress has required all fifty states to develop new pro- grams of cash assistance for families, leading to a series of critically important policy debates at the state level.' ° Yet, it has prohibited poverty lawyers who work in programs that receive LSC funding from presenting the perspective of public assistance recipients in these debates and barred lawyers from challenging unlawful state laws and regulations that come out of the process. For these reasons, any consideration of poverty lawyering in the twenty-first century cannot take for granted the assumption that there will be poverty lawyers in the future. Working to save LSC, to restore its funding, and to remove the recent congressional re- strictions is essential. Indeed, the fight to save LSC is clearly the single most important item on any agenda to provide legal services to poor communities." At the same time, in organizing this Symposium, we viewed the current upheaval as an opportunity to consider new possibilities and directions for lawyers who work with poor communities. Our goal is to spur the task of building a new affirmative agenda for poverty law. The cuts in LSC funding, the imposition of congres- sional restrictions, and the restructuring of government programs that address the needs of the poor all suggest that poverty lawyers should ask basic questions about their goals and methods. These questions also take on renewed importance because the imposition of restrictions on LSC funded organizations has led to the creation of many "spin off" programs, and the establishment of dual delivery systems in many areas.12 Under this dual approach, 8. See Claudia Schlosberg & Joel D. Ferber, Access to Medicaid Since the Per- sonal Responsibility and Work Opportunity Reconciliation Act, 31 CLEARINGHOUSE REV. 528 (1998) ("Enactment of the [PRWORA] and the Balanced Budget Act of 1997 is having a profound effect on the Medicaid program."). Id. at 528. 9. See David B. Bryson, How the Clinton Administration and the 104th Congress Impaired Poor People's Rights to Housing, 30 CLEARINGHOUSE REV. 1154 (1997). 10. See 42 U.S.C. § 601-603 (1997). 11. See David S. Udell, Implications of the Legal Services Struggle for Other Gov- ernment Grants for Lawyering for the Poor, 25 FORDHAM URB. L.J. 895 (1998). 12. See Houseman, supra note 5 (noting that a new delivery system is emerging in many states that includes both programs funded with LSC funds but restricted in its activities, as well as programs funded with substantial non-LSC funds). 1998] INTRODUCTORY REMARKS 675 one program in an area receives LSC funding and operates subject to restrictions, while another group receives private or unrestricted government funding and remains free of the LSC restrictions. Many organizations are seeking to define their roles in this new environment. Because these "spin off" programs are not subject to any LSC requirements, they have more latitude than poverty law offices have had since the creation of LSC in 1974.13 In rethinking the function and role of poverty law offices, it is important not to ignore past discussions of these issues. These questions have commanded the attention of poverty lawyers and academics since the inception of the OEO legal services program during the War on Poverty.14 In particular, efforts to restructure the delivery of legal services to the poor should be informed by the fundamental insight of the founders of the Legal Services program: lawyers can assist poor individuals and communities in altering the social conditions that create and sustain poverty. Poverty lawyers can play a larger role than simply facilitating the resolution of par- ticular problems that poor people encounter on an individual basis. Indeed, the ideal of equal access to justice encompasses not only individual dispute resolution, but full participation in the processes of the legal system that shape public policies and direction.' 5 Because of the recent congressional restrictions, many poverty lawyers of necessity must seek means other than class action litiga- tion and legislative advocacy to influence the social conditions that create and sustain poverty. But, even apart from the restrictions, there are strong reasons why poverty lawyers should seek a broad range of strategies. 16 The hostility of the courts to ambitious claims 13. See Houseman, supra note 5. Similarly, in 1996 Congress defunded approxi- mately twenty LSC funded support programs. See id. These offices have been forced to redefine their functions and methods of operation in order to obtain alternative funding sources. Like the "spin off" programs, these offices are now free of con- straints that LSC had imposed since 1974. Loss of federal funding has also sparked creative thinking about alternative means of supporting poverty law programs. 14. See generally MARTHA DAVIS, BRUTAL NEED: LAWYERS AND THE WELFARE RIGHTS MOVEMENT (1993); EARL JOHNSON, JUSTICE AND REFORM: THE FORMATIVE YEARS OF THE OEO LEGAL SERVICES PROGRAM (1974). 15. See generally Marie Failinger & Larry May, Litigating Against Poverty: Legal Services and Group Representation, 45 OHIO ST. L.J. 1 (1984). 16. Many commentators have counseled such a course even before the latest round of budget cuts and restrictions. See Marc Feldman, Political Lessons: Legal Services for the Poor, 83 GEO. L.J. 1529 (1995). See generally, William Simon, Rights and Redistribution in the Welfare System, 38 STAN. L. REV. 1431 (1986) (critiquing litigation and advocacy strategies aimed at establishing right for welfare recipients and limiting the discretion of administrators). 676 FORDHAM URBAN LAW JOURNAL [Vol. XXV brought on behalf of poor clients 17 and the revision of many laws to remove possible "hooks" on which to hang legal claims limit the potential of litigation.' In addition, there is a growing skepticism about the efficacy of litigation as an agent for fundamental social change.
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