by Kris Shepard. Baton Rouge, LA: Louisiana State University Press, 2007. 408pp. Cloth. $55.00. ISBN: 0807132071.
Reviewed by Patrick Schmidt, Department of Political Science, Macalester College, Email: schmidtp [at] macalester.edu.
So this is what the post-HOLLOW HOPE world looks like. For my students, perhaps not fully sobered up from the party of legal liberalism, the black coffee that is Rosenberg’s THE HOLLOW HOPE (1993) still gets their eyes open and blood pumping. I do note, however, increasing students who come primed with cynicism about the possibility of litigation as an agent of social change, reflecting the wider questioning of everything that was central to law’s project in the hands of the last generation of reformers.
Into such a world, Kris Shepard has undertaken a project to record the work and experiences of attorneys who labored as legal aid attorneys in the Deep South. Shepard’s approach is historical rather than sociological, though “poverty lawyers” do form a distinctive body, and at times he suggests the production of their identity. His chronological frame of the mid-1960s until the latter half of the 1990s also makes political change and institutional concerns a vital part of this story. Indeed, beyond the first ambition of producing a meaningful record of what was unquestionably interesting legal work, using 82 interviews to draw out an oral history of poverty law practice, Shepard asks the impact question: What did the work add up to, set as it was against a backdrop of high-level politics over the funding, operation, and very existence of the Legal Services Program and its successor, the Legal Services Corporation?
Those political maneuvers will be well-known to many readers, though Shepard does an excellent job bringing everyone up to speed. The precursors to federally funded legal aid were voluntary legal aid societies of the late 19th and early 20th centuries, and from the beginning of the Legal Studies Program in 1964, voluntarism provided a foil for southern politicians and lawyers. Their transparent objections, made in professionalism and market-based terms, cover for the resistance to the new balance of power that would prevail if, bolstered by the Supreme Court, legal aid lawyers could summon up due process and equal protection challenges on behalf of their underprivileged clients. More commonly, government-funded lawyers were foot soldiers in the battle to compel state and local compliance with federal proscriptions. There is much in the retelling of the cases handled in the early years (Chapter 2, covering 1965-1970) to justify progressives’ faith that legal services were an essential component of welfare state relief. Shepard indulges his lawyer interviewees in their personal stories, sometimes for unclear purposes but sometimes with great effect, and the degree of racism and maladministration [*496] of public policies leave no doubt about the need for legal activism.
Chapters 3 and 4, detailing the “lean years” of 1970-1975 and expansionary period of 1975-1981, continue the chronology while Shepard also attends to the differences between legal aid offices, such as Atlanta and Northern Mississippi. The institutional uncertainty and transformation of legal services by the Nixon administration comes to the fore quite noticeably. Shepard provides several logistic regressions (wisely in an appendix) that explore Congress’ votes on the Legal Services Corporation, in order to observe that ideological positions, especially the role of moderate voices, were the “predominant influence” on the process (p.109). The national-level politics filter down to legal aid offices as financial and regulatory stresses to be managed, lessons in organizational change that contribute to our understanding of the practice of legal aid. The net effect of these chapters is to suggest a narrative akin to World War I—trench warfare, directed from afar, with scant movement made in any particular direction.
Chapters 5 and 6 provide a more substantive cut on the legal issues at stake in poverty lawyering, examining the topics of low-income families and racial reconstruction, respectively. The chapters are rich with “wow” fact patterns – the kind of cases where you cannot help but stop every once in awhile to say “wow” – and Shepard begins to keep a scorecard on the work of poverty lawyers. Legal services did have its share of successes at the Supreme Court level (see, e.g. Lawrence 1991) but on the ground Shepard gives us cause for equivocation, appreciative of the ambiguities of poverty law practice. He finds clear examples of a positive role for poverty lawyers, such as their success in driving southern communities into a national community (p.177), but he simultaneously douses your enthusiasm with recognition of the “coercive dimension to the expansion of the regulatory state” – in which the poor gain materially but lose autonomy (p.176). Poverty lawyers hold an especially ambiguous place. In some cases lawyers were needed to assist the equitable and efficient delivery of welfare benefits; in other cases (such as parental rights), poverty lawyers worked for clients to resist that paternalism. In these chapters and throughout the book, other factors compel skepticism about litigation as a source of social change, including the relative significance of political activism in producing change and sheer evolution of attitudes over the long passage of time.
One particularly noticeable gap in Shepard’s account lies in his treatment of attorney-client relationships. He clearly appreciates the possibilities of attorney-client tensions, and throughout the book we hear of conservative opponents who claim that legal aid lawyers are ideological crusaders high-jacking needy clients’ cases. Considerable scholarship in the area of “cause lawyering” (e.g., Sarat and Scheingold 1998, 2005, 2006; Scheingold and Sarat 2004) has drawn our attention to the tensions between movement lawyers and clients in individual cases. Without citing that work, Shepard raises similar concerns [*497] with poverty lawyers. The limitation may be that his historical data – interviews and case archives – do not expose those relationships.
Even so, some readers may wish for a more direct encounter with thematic concerns that generalize from the sometimes narrow litigation raised by poverty lawyers. The data here are intriguing for anyone who wants to engage the conceptual quagmire of “who is the client?” Clearly many poverty lawyers saw themselves as doing civil rights work, or at least, working for the benefit of all African-Americans, whether poor or not. The most prominent example is the collaboration-then-parting between North Mississippi Rural Legal Services (NMRLS) and the United League (Chapter 5). NMRLS attorneys assisted United League activists with their street protests, subsequent arrests, and other activities against discrimination. Poverty lawyers saw race at the core of their clients’ problems, defending (in their own words) their “right . . . to apprise its clients of legitimate alternatives that they might use as a weapon to bring a measure of racial justice” (p.214), but they ultimately ran up against regulations that limited the activities of government-funded legal services. Yet Shepard also makes a case for the distinctiveness of poverty law, particularly the many issues that emerge through federal and state welfare programs, and even in the Deep South, those problems do cross racial lines. With race and class both at play, reaching the complicated question of attorney-client relations would have better exposed our assumptions about whom poverty lawyers were trying to help and what good they were trying to do.
What does the scorecard look line in the end? It is difficult to say. The political twists and turns continue with the passing of administrations and Congressional leadership – Shepard carries his account through the fiscal retrenchment of 1996 with a coda of speculation about the George W. Bush administration – and the Supreme Court would never do for “poverty” and “the poor” what it did for race. One answer is to emphasize, as Shepard rightly does, that a significant contribution of poverty lawyers is simply to represent those who have lacked representation for so long, in the “intensely personal” cases that may not leave precedent but make a massive difference in peoples’ lives (p.242). Shepard fashions another claim at the most general level: that poverty lawyers helped to usher the poor of the Deep South into a modern, national legal culture, bringing law and the welfare state into their lives.
Both of those answers are mildly unsatisfying, even accepting Shepard’s caveat that “drawing broad conclusions about legal services is difficult, fleeting, and perhaps misleading” (p.242). Building on engaging empirical work, Shepard himself has made broad conclusions difficult by entertaining deeply critical class-based possibilities. His most provocative and disconcerting thesis may be that Congress erred by tying legal services to the least affluent instead of “a larger proportion of the working poor or even the lower middle class” (p.238). It is not only that legal [*498] services need a broader, more powerful constituency than the poverty-bound. More radically, we are reminded that advocates of legal aid at the turn of the 20th century viewed it as a mechanism of cooptation, to bring the poor within the system and prevent radicalism. Poverty lawyering has deeply conservative possibilities. We do not always know how much poverty lawyers actually accomplished through litigation, or how much they could have achieved had it not been subject to political winds. But it is not just that they failed to produce another legal victory like BROWN v. BOARD. The twist may be that legal success might have only fostered clients’ entry into a coercive modern state and, in the aggregate, undermined more fundamental political change. Readers may reject the most cynical possibilities, but in the least, the questions Shepard poses in RATIONING JUSTICE could reveal a very hollow hope, indeed.
Lawrence, Susan E. 1990. THE POOR IN COURT: THE LEGAL SERVICES PROGRAM AND SUPREME COURT DECISION MAKING. Princeton, New Jersey: Princeton University Press.
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
Sarat, Austin, and Stuart A. Scheingold (eds.). 1998. CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES. New York: Oxford University Press.
Sarat, Austin, and Stuart A. Scheingold (eds.). 2005. THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE. Stanford, California: Stanford University Press.
Sarat, Austin, and Stuart A. Scheingold (eds.). 2006. CAUSE LAWYERING AND SOCIAL MOVEMENTS. Stanford, California: Stanford University Press.
Scheingold, Stuart A., and Austin Sarat. 2004. SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING. Stanford, California: Stanford University Press.
© Copyright 2007 by the author, Patrick Schmidt.