Musical Chairs and Tall Buildings: Teaching Poverty Law in the 21st Century

I. INTRODUCTION America has not yet abolished poverty. The definition and proper measure of poverty have long been a subject of controversy, and there is no consensus on how many people in the United States are poor. (1) But no one denies that the poor continue to be with us. This is unlikely to change soon. It does not follow from this that poverty should be addressed--or will continue to be addressed--as a distinct subject within the law school curriculum. Indeed, the status and future of this area of inquiry within law schools is somewhat in doubt, even as the subject retains some vitality. In the most recent American Association of Law Schools Directory of Law Teachers, this area of teaching and research is denominated "welfare law." (2) The names of law faculty listed under this rubric fill about a page and a half, with most individuals indicating that they are not actively teaching a course. (3) The "big name" law schools (U.S. News and World Report top twenty) are not very well-represented on the list. Although Yale Law School has a disproportionate number of professors who acknowledge interest in this field, no one at Harvard or Chicago is listed as teaching welfare law. (4) As someone who attended college and law school in the 1970s and 1980s and then went on to teach law in the 1990s, I can attest that welfare law was once a more popular course than it is today. But its position has always been tenuous. Poverty has never been considered a mainstream part of the law school curriculum; nor has it commanded a central place in legal scholarship. There are signs that its popularity has, if anything, recently waned. Michigan, for example, for many years offered a well-attended poverty law class taught by faculty member and then dean Jeffrey Lehman. He has since left Michigan for Cornell, and that high-profile Michigan course no longer exists. What accounts for welfare law's current status and continuing marginalization? Because poverty law is not a core part of a traditional legal education, it has no standard, agreed-upon curriculum. What is taught in poverty law is up for grabs and is heavily influenced by the interests and convictions of the faculty instructor. Not surprisingly, courses are highly variable, and their contents have evolved in response to political developments and shifting notions on the causes and cures of economic disadvantage. Prompted by a heightened concern with the rights of the poor and especially with the dire situation of American blacks, welfare law courses began to appear in law schools in the 1960s. The presentation and design of these initial courses were strongly informed by left-leaning assumptions about the nature of poverty and its origins. On this view, economic deprivation is a product of an unjust economic and social system ripe for reform. Many proponents believed that inequities could be addressed through an agenda of policies, regulations, and programs designed to work fundamental changes in the functioning of government and the structure of society. The ultimate goals were laudable, if somewhat naive: to rectify injustices, procure a better deal for poor people, enhance the power of the disadvantaged, and improve their lives. The appearance of these courses historically coincided with the enactment of Great Society initiatives and a dramatic expansion of New Deal programs such as Aid for Families with Dependent Children ("AFDC"). The roles these courses envisioned for lawyers included not only pressing for the enactment of new laws and policies designed to protect the interests of the poor, but also advocating for vigorous judicial enforcement of existing ones. In keeping with lawyers' comparative advantage, the legal piece of the project increasingly came to be viewed as a matter of procuring "rights" and maximizing entitlements within a system that, it was thought, systematically worked to undermine them. Thus, although the aspirations expressed in these courses were vaunting and potentially quite far-reaching, the scope of their immediate concerns was, in actual practice, somewhat technical and limited. …