Vol. 5, No. 4 (April, 1995) pp. 122-124

BRUTAL NEED: LAWYERS AND THE WELFARE RIGHTS MOVEMENT 1960-1973 by Martha F. Davis. New Haven: Yale University Press, 1993.

Reviewed by Susan E. Lawrence, Department of Political Science, Rutgers University.

Following the dramatic rise of interest group litigation before the U.S. Supreme Court during the 1960s, came the telling of the stories of such litigation campaigns. Martha F. Davis's book, BRUTAL NEED, joins that body of literature. Davis sets out to provide a historical "account of the part that a new breed of lawyer-activist -- the poverty lawyer -- played in the welfare rights movement" between 1960 and 1973 (p.1), focusing on the litigation of the Center for Social Welfare Policy and Law at the Columbia School of Social Work.

BRUTAL NEED is largely an account of Edward V. Sparer's role in the litigation campaign for welfare rights, a campaign based on a doctrinal argument Sparer outlined in a 1964 UCLA LAW REVIEW article. Davis sketches Sparer's personal history, and traces his welfare rights litigation campaign from his early days at Mobilization for Youth, NYC through his leadership of the Center for Social Welfare Policy and Law. As Sparer's creation, the Center was funded initially by the Stern Family Fund and Ford Foundation, and later by the Office of Economic Opportunity's Legal Services Program (LSP). Davis puts her primary emphasis on the Center's role in some of the major welfare rights cases of the late 1960s and early 1970s (KING V. SMITH, GOLDBERG V. KELLY, ROSANDO V. WYMAN, DANRIDGE V. WILLIAMS, WYMAN V. JAMES, and JEFFERSON V. HACKNEY) and she highlights the relationship between the Center's litigation and the "flood the system" strategy of George Wiley's National Welfare Rights Organization. Davis concludes that the Center's welfare rights litigation campaign failed, noting the Court's refusal to accept Sparer's Fourteenth Amendment "right to life" argument (which she renames "right to live") in a rejected challenge to AFDC maximum family grants in DANRIDGE V. WILLIAMS. And, on Sparer's own terms, the campaign was indeed a failure. Davis attributes this disappointment to the short duration of the organized welfare rights movement; the rapidity of the legal attack compared to the NAACP LDF's thirty year erosion of PLESSY; and finally, to the social isolation and stigmatization of the poor. For Davis, the lesson to be drawn from Sparer's experience and the Center's litigation is that welfare reform is unlikely to be achieved through a litigation strategy alone, yet lawyers need not be relegated to "simply" providing "access to justice"; rather, "legal strategies... can play an important role in social movements of poor people." (144-45). However, the brief account that precedes her conclusion places very little meat on that bone.

In the Preface, Martha Davis tells us that she is an attorney who, after having spent some time in private practice and at the Bunting Institute while writing this book, now works for the National Organization of Women Legal Defense and Education Fund. Not surprisingly then, BRUTAL NEED skirts the broader questions raised by interest group litigation. She does not situate her story in relation to the role of the Supreme Court in the policy process or the role of groups in

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bringing pluralist politics to the Court. There is little of the political scientist's understanding of the correlates of success and failure before the Court in this book, although those who are familiar with that body of work will recognize some examples of the literature's more systematic findings. In particular, Davis's account of GOLDBERG V. KELLY provides a wonderful example of the frustrations and strategic responses of groups when they are not able to control the flow of litigation from other sources. But, she shows little sensitivity to the question of who is empowered by and represented in interest group litigation, an issue that merits particular attention. Given the annoyance she reports Center attorneys felt when local LSP attorneys showed up at the 'wrong place at the wrong time' with a client and a case that did not fit the Center's litigation plan, this issue deserves particular attention. The proper relationship between attorney's social reform agendas and service to individual clients was a question that troubled the OEO Legal Services Program internally and plagued its relations with both Congress and the local environments in which its projects operated. Indeed, the centrality of this question goes beyond an evaluation of poverty litigation or the LSP. The triangular tension between the interests of the client, the clientele, and the litigating attorneys is an issue that all assessments of litigation-oriented interest groups must face (e.g., Bell, 1976). Nor does BRUTAL NEED provide the kind of sophisticated analysis of the efficacy of litigation in building social movements that one finds in works such as McCann's RIGHTS AT WORK (1994), despite its attempt to chronicle the relationship between the Center and the National Welfare Rights Organization's grass-roots strategies.

Particularly perplexing to those who are familiar with other works that focus on poverty litigation and lawyers (Melnick, 1994; Lawrence, 1990; Kessler, 1987; Handler, et. al.., 1978; Johnson, 1978; Katz, 1978; Piven and Cloward, 1971), Davis makes only passing reference to the Center's relationship to the OEO Legal Services Program and the various local LSP funded legal services projects. This omission considerably distorts the picture Davis draws of poverty lawyers and the Center's contribution to the development of poverty law. Between 1966 and 1974, the OEO Legal Services Program funded 265 local LSP projects (with 850 offices) and a dozen back-up centers, including Sparer's Center for Social Welfare Policy and Law. Operating through a highly decentralized structure, the local LSP project litigated a couple of hundred thousand cases a year and appealed one to three thousand poverty law cases each year, including nearly 100 Supreme Court cases brought to that forum between 1967 and 1974 without assistance from ANY of the twelve back-up centers (Lawrence, pp. 77, 101). And, unlike the work of Handler, et. al., Katz, and Kessler, BRUTAL NEED does not explore the many facets of the working environment in which the nearly 2500 LSP attorneys practiced poverty law. BRUTAL NEED is a story told without a context. While those already familiar with the history of poverty litigation and the variety of debates that surrounded the OEO Legal Services Program's provision of attorneys to indigents in civil trial and appellate cases will find some interesting details to add to their repertoire, BRUTAL NEED cannot stand alone as an

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account of the role lawyers and litigation played in the welfare rights movement.

References: Bell, Derrick. (1976) "Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation," YALE LAW JOURNAL 85:470.

Handler, Joel, Ellen Jane Hollingsworth, and Howard S. Erlanger. (1978) LAWYERS AND THE PURSUIT OF LEGAL RIGHTS. New York: Academic Press.

Johnson, Earl, Jr. (1978). JUSTICE AND REFORM: The Formative Years of the American Legal Services Program. New Brunswick, NJ: Transaction Books. Katz, Jack (1978). POOR PEOPLE'S LAWYERS IN TRANSITION. New Brunswick, NJ: Rutgers University Press.

Kessler, Mark (1987). LEGAL SERVICES FOR THE POOR: A COMPARATIVE AND CONTEMPORARY ANALYSIS OF INTERORGANIZATIONAL POLITICS. Westport, Conn.: Greenwood Press.

Lawrence, Susan E. (1990). THE POOR IN COURT: THE LEGAL SERVICES PROGRAM AND SUPREME COURT DECISION MAKING. Princeton: Princeton University Press.

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

Melnick, R. Shep (1994). BETWEEN THE LINES: INTERPRETING WELFARE RIGHTS. Washington, D.C.: The Brookings Institution.

Piven, Frances Fox and Richard A. Cloward (1971). REGULATING THE POOR: THE FUNCTIONS OF PUBLIC WELFARE. New York: Pantheon.

Cases: DANRIDGE V. WILLIAMS, 397 U.S. 471 (1970). GOLDBERG V. KELLY, 397 U.S. 254 (1970). JEFFERSON V. HACKNEY, 406 U.S. 535 (1972). KING V. SMITH, 392 U.S. 309 (1968). PLESSY V. FERGUSON, 163 U.S. 537 (1896). ROSANDO V. WYMAN, 397 U.S. 397 (1970). WYMAN V. JAMES, 400 U.S. 309 (1971).