Vol. 15 No.4 (April 2005), pp.325-328

DEFENDING THE RIGHT TO A HOME: THE POWER OF ANTI-POVERTY LAWYERS, by Beth Harris. Burlington, VT: Ashgate 2004. 246pp. Hardcover. $99.95 / £50.00.  ISBN 0-7546-2390-4.

Reviewed by Mark Kessler, Department of Political Science, Bates College. Email: mkessler@bates.edu

In this useful and engaging book, Beth Harris examines the power of poverty lawyers to employ law and courts successfully to improve the material conditions of the homeless.  Harris reports the results of five case studies of class action litigation brought by federally funded legal services lawyers on behalf of homeless families. We learn in this study about the legal claims made by attorneys in these class action lawsuits, legal actions that played a major role in a concerted, yet ultimately unsuccessful, campaign to establish a right to adequate housing. And, as important, we learn about some of the socio-political factors that distinguish the more successful suits from those that achieve less for people living on the social, political, and economic margins.

Three class action lawsuits initiated and led by legal services lawyers in California, Chicago, and New York City form the core of the study’s analysis. Two additional lawsuits, brought by lawyers working with coalitions of advocacy organizations focused on issues of homelessness, are used to explore related analytical questions. In general, the case studies are richly detailed, substantively interesting, and skillfully employed to explore the conditions under which poverty attorneys gain benefits for their clients. Placing her case studies in the context of Mark Galanter’s (1974) influential framework, Harris explores the extent to which, and the circumstances under which, legal services lawyers permit their clients to act as “repeat players” in courts, winning tangible benefits and redistributing resources in ways that challenge the notion that only the “haves come out ahead.”

To answer these questions, Harris uses a “political process” model, following the class action lawsuits through time and through several separate policymaking stages. At each stage Harris interprets the impact of legal action by assessing interactions between a variety of external conditions and what she terms “strategic choices” by significant decision makers. She summarizes the overall approach as follows: “The dynamics of policy reform are created over time and cannot be captured by focusing on a single historical moment. At each stage of the policymaking process, the legal advocates and their adversaries reassess both intended and unintended consequences of previous decisions. An explanation of this process requires a dynamic longitudinal study. My interpretive approach constructs a narrative or sequential story; that of the interaction between contextual factors and strategic choices throughout the policymaking process” (p.15). In constructing the five sequential narratives, Harris employs various documents, including legal briefs, court [*326] decisions, and official government reports, along with interview responses from ten to twenty people involved in each class action. Interviewees included legal services lawyers, lawyers for state agencies, state administrators involved in housing, and others involved at the national level with the issues of housing and homelessness.

Harris applies the political process model to the five case studies to address conclusions drawn by other socio-legal scholars that law and lawyers either are uniformly ineffective and powerless in producing change, or, alternatively, are always effective and powerful. Although the limited sample of cases makes it difficult to draw firm and definitive conclusions, Harris’ research is quite suggestive. She derives the maximum analytical insight from these case studies regarding the conditions under which litigation produces desired benefits. The research and analysis shows, among other things, that legal claims draw on established legal conventions and categories, that judicial mandates are often influenced by these claims and that the resulting decisions are then taken seriously by administrative agencies, and that the goal of effective implementation of such mandates is furthered by requiring judicial monitoring, a requirement that creates space for poverty lawyers to reinsert themselves and their clients into housing issues. Harris’ study, looked at in conjunction with other uses of the political process model, such as McCann’s (1994) work on comparable worth, shows the utility of employing detailed historical case studies to identify factors associated with both successful and unsuccessful attempts at legal reform and social change in courts. These case studies also demonstrate both the direct and indirect effects of law and legal decisions, focusing attention in some instances on how law and legal directives may act as resources that may be employed in political struggles in what Stuart Scheingold (1974) calls a “politics of rights.” Looking across her case studies, Harris concludes: “The anti-poverty lawyers did not achieve a right to housing in the United States, but they did create leverage for policy reforms that did not seem feasible in the current political environment” (p.vii).

In general, then, this book is a solid empirical study of how poverty lawyers at one moment in history were able to produce, under certain specified conditions, some tangible benefits for poor people in need of basic housing. Beth Harris highlights an extremely important policy area, applies an established theoretical framework well and with insight, and provides important practical advice to public interest legal practitioners and activists about contingencies to consider carefully when pursuing social and political change.

Harris’ focus on the five class action lawsuits as case studies and her comparative research design allow her to present a compelling case regarding some of the most significant factors explaining the relative impact of class action litigation and the legal decisions they produce. But these choices make it difficult for her to do more than speculate when drawing conclusions about the “power” of poverty lawyers, another of her interests in this book. Conclusions about the political and legal effectiveness of poverty lawyers in any general sense must be quite tentatively drawn because this study examines only [*327] a small and rare group of class action suits brought by a very small group of law reform oriented legal services lawyers who work in central program offices and support centers. As Harris recognizes, these lawyers are not and never were engaged in the typical kinds of legal representation that took place in the national legal services program, a program emphasizing from its origins the need for community lawyers located in neighborhood offices to work closely with individuals in those neighborhoods. Class action litigation and law reform efforts more generally could develop naturally from client intake and individual casework taking place in neighborhoods. But bringing class action lawsuits was never among the typical strategies employed by poverty lawyers, and such strategies were expressly prohibited by Congress in the mid-1990s. Thus, the focus on such rare cases brought by atypical poverty attorneys, and the use of these cases to understand more fully the conditions under which law is effective in specific cases, makes it difficult to incorporate in an overall assessment of the “power” of poverty lawyers such things as the political environment surrounding the state provision of legal services to the poor, the fact that such lawyers operate in a society stratified by class, and how such stratification may stack the deck against the poor and their federally funded legal advocates, at least in the long term. The cases upon which Harris relies to draw conclusions about the impact of law and the power of poverty lawyers represent precisely the types of cases that powerful political opponents used to argue successfully against further funding or for more limited funding for programs employing attorneys who were often misleadingly called “ideological ambulance chasers.”  These arguments were routinely offered by program critics, regardless of the fact that most legal services lawyers never brought or were in any way involved in class action litigation, but rather engaged in the more typical neighborhood law office activities, representing low-income individuals with ordinary and relatively mundane legal problems.

Harris briefly considers but ultimately dismisses arguments in recent critical work on public interest lawyers  (e.g., Buchanan and Trubek, 1992) suggesting that legal professionalism and the specialized language associated with it reinforce unequal power relations between lawyer and client, disempowering clients and undermining attempts at self-determination. She is skeptical of suggestions in this literature that resources for legal representation be reinvested in efforts at more effective community organization. Drawing on theoretical work by Pierre Bourdieu (1987), Harris argues that “the power of poverty lawyers is primarily rooted in their professional status within the legal field. Anti-poverty lawyers continue to have symbolic capital to counter the dominant discourses that exile those who are poor and politically disfavored from legal protections; to expose the harms caused by neoliberal reforms as violations of fundamental rights, and to mobilize institutional resources, including reform litigation, for triage to protect those who are most vulnerable” (p.149).

While the poverty lawyers who initiated the class actions in this study may have been able to use, under certain circumstances, their professional status as symbolic capital, class actions as a [*328] litigation strategy were essentially banned from this program and federal funding was restricted when those with more power felt threatened. Without working to build community organizations and self-determination, poor people are left with little, less, or nothing—smaller numbers of lawyers, no organizational structures, no skills developed to advocate for themselves—when the state cuts funding and removes litigating authority. And the relatively subordinate political position of people living in poverty makes certain that the state will indeed take away resources and legal options when it appears that lawyers for the poor may be assisting them in achieving status as “repeat players.” Thus, considering the place of federally funded legal services in the political economy of the society in which it is created complicates an assessment of the “power” that its lawyers actually possess. Such an assessment is crucial, however, and is furthered by the stimulating analyses contained in this book.

REFERENCES:

Bourdieu, Pierre. 1987. “The Force of Law: Toward a Sociology of the Juridical Field.” 38 HASTINGS LAW JOURNAL 805-853.

Buchanan, Ruth and Louise G. Trubek. 1992. “Resistances and Possibilities: A Critical and Practical Look at Public Interest Lawyering.” 19 REVIEW OF LAW AND SOCIAL CHANGE 687-719.

Galanter, Mark. 1974. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” 9 LAW AND SOCIETY REVIEW 95-160.

McCann, Michael. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press.

Scheingold, Stuart. 1974. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY AND POLITICAL CHANGE. New Haven: Yale University Press.

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© Copyright 2005 by the author, Mark Kessler.