Two very interesting articles in my Twitter feed this week:
The Invisible Justice Problem
Great rundown of some of the history behind the Legal Services Corporation and the practice of “poverty law.” Key quote (one of many, tbh):
As Clinton Bamberger explained, the program's view of the Legal Services lawyer's role was that the “poor are least equipped with the resources and resilience to obtain fair treatment” and “competent advocacy in the form of a lawyer – an articulate friend – can improve the lot and dignity of the poor. The OEO seeks the achievement of some greater approximation of equal justice for the poor – equal significance as human beings – than has ever been achieved before.” …
Opponents of the program successfully yoked these aspirations of Legal Services lawyers to a threat to capitalism itself. To shield capitalism, opponents sought to prohibit Legal Services lawyers from using law reform and other tactics to create a larger political coalition to work on reducing inequality and poverty. Legal Services lawyers did a poor job of articulating their role in that effort, but their opponents likely would have rejected any positive account of the Legal Services vocation, because challenges to “evils that prey on the poor” were challenges to entrenched power.
Access-to-justice gap? It's the economy
Article by Jason Tashea (subscribe to his newsletter, it’s great) on whether or not allowing lawyers to refer their clients to financing companies in order for the clients to get a loan to pay the lawyer’s fees is actually going to increase access to legal services.
Both due to the economic realities surrounding most Americans and our unhealthy relationship with consumer debt, it’s particularly hard to see how legal fee financing, of all the proposals to close the access-to-justice gap, is the solution. Legal fee financing is not alone in missing the larger issue, however, the broader conversation around access to justice would be better suited if it focused on foundational economic issues.
I’ve thought for a long time that, while legal aid is an essential part of solving the access to justice gap, it’s not the solution. Likewise dubious funding schemes and byzantine and self-congratulatory ABA model rules (lawyers already let people pay with credit cards, come on). Lawyers who serve people with problems are, 99/100 times, serving those people far downstream from what caused their problem, but seem incapable of asking why people need lawyers in the first place.
Why not look upstream?
An interesting tidbit - legal aid organizations that receive funds from the Legal Services Corporation (by far the largest legal aid funder) are prohibited from lobbying or attempting to influence lawmakers to pass legislation. Isn’t this kind of like preventing ER doctors who treat pedestrians hit by cars from calling up their local lawmakers and saying “look, we should probably think about having some sidewalks?”
I’d love to know more about the history of why that prohibition in 45 C.F.R. Part 1612 was created. And yes, I’m aware of impact litigation like Olmstead. But I’d say that even impact litigation is mostly downstream or people’s problems. So why not look upstream and see what we find?