Vol. 1 No. 1 (March, 1991) pp. 24-27

THE POOR IN COURT: THE LEGAL SERVICES PROGRAM AND SUPREME COURT DECISION MAKING by Susan E. Lawrence. Princeton: Princeton University Press, 1990. 207 pp. cloth, paper.

Reviewed by Harry P. Stumpf, University of New Mexico.

In 1965, as part of the Johnson era "War on Poverty," Congress created the Legal Services Program (LSP) under the umbrella of local Community Action Agencies. This was the first significant effort in American history to seriously address the problem of civil legal assistance to the poor. Old line legal aid societies, hobbling along on pitifully inadequate funds since the 1880's, were supplanted by vastly expanded federally-funded operations. Not only were budgets increased, but new organiza- tional and conceptual approaches became part of the "New Wave" in legal services. Neighborhood offices were located in the poverty communities themselves, enhancing direct access to lawyers by the indigent population. An attempt was made to structure programs so as to ensure their independence from political forces (e.g., state and local governments, hostile private interests, and local bar associations) which could easily undermine their efforts to provide meaningful legal assistance to the poor. And perhaps most importantly, an emphasis was placed on aggressive, creative legal representation in raising problems and pursuing issues which bore in on the poor as a group. As explained by E. Clinton Bamberger, Jr., first director of LSP:

We cannot be content with the creation of systems of render- ing free legal assistance to all the people who need but cannot afford a lawyer's advice. This program must contrib- ute to the success of the War on Poverty. Our responsibility is to marshal the forces of law and the strength of lawyers to combat the causes and effect of poverty. Lawyers must uncover the legal causes of poverty, remodel the systems which generate the cycle of poverty and design new social, legal and political tools and vehicles to move poor people from deprivation, depression and despair to opportunity, hope and ambition. (Bamberger, 1966)

Thus, legal change, test cases, LAW REFORM became the battle cry of legal services attorneys and national program directors.

Hardly surprisingly, the inauguration of federally-funded legal services provoked a great deal of interest, anxiety and opposition within the American politico-legal system, not to mention an outpouring of commentary, research and analysis from the law and social science research community. From the latter came scores -- indeed hundreds -- of articles, books and occa- sional pieces devoted to various aspects of the program, its politics, its potential, and its successes and failures. So intense was the follows political pressure on the program that in 1974 Congress sought partially to protect its operations from political attack through its envelopment in the Legal Services Corporation. But in some ways that only heightened the swirl of politics surrounding program activities.

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By the mid to late seventies scholarly interest in the program and its problems subsided, far fewer books and articles were appearing, and most observers seemed satisfied that the major lessons of this grand experiment in social change through law had been recorded -- and re-recorded. Now we seem to have come full circle, with more scholarly attention being devoted to poverty issues in general, and at least three books recently appearing on the subject of law and poverty: Smith's COURTS AND THE POOR (1991); Kessler, LEGAL SERVICES FOR THE POOR (1987) and the work now under review.

In most respects Lawrence's THE POOR IN COURT is not charac- teristic of law and social science research on the OEO Legal Services Program, because it's central focus is not the program per se, but the success of program litigation in but one arena, the U.S. Supreme Court. Though a few prior research forays had been made in this direction (e.g., Krislov, 1973) this book highlights a facet of LSP operations until now not well under- stood. In this respect alone it is a welcome addition to the literature.

Lawrence casts her work largely within the framework of extant research on interest group and ancillary approaches to understanding access to the judicial arena. She repeatedly notes that for many reasons the legal services strategy does not fit the traditional mold. Central to this conclusion is her finding that unlike other interest groups, LSP attorneys never developed a centralized litigation strategy. Rather, the 164 cases which came to the Supreme Court were the result of a variety of local strategies, with cases arising from the needs of the individual clients themselves.

The other major point of departure of this research is its concern with the question of litigant influence on Supreme Court agenda setting. As stated by the author:

This book focuses on how poor litigants, represented by Legal Services attorneys, participated in and helped to shape Supreme Court decisions during the Program's nine year tenure. How does a change in who litigates before the Su- preme Court affect agenda setting and policy development in that institution and what can that tell us about the pro- cesses of Supreme Court decision making? (10-11).

Of the 164 cases brought for review by LSP attorneys, 118 were accepted, with 80 receiving plenary consideration by the justices. Since this represented seven percent of all full written opinions delivered by the Court in that nine year period, the author sets about documenting and explaining this rather remarkable rate of success in gaining access to the Court, a rate higher even than that of the Solicitor General. The answer is fairly obvious: the socio-political climate of the time augured for Supreme Court receptivity of these issues:

During the 1960s and early 1970s the national domestic policy agenda focused on equality and poverty issues. . . . With the attention Congress and the President gave to pover- ty, it is not surprising that the justices would find it to be an important issue and place it on their agenda as well. (92)

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Too, the success rate of LSP claims before the Court was remarkably high, again for rather obvious reasons: "[t]he same forces that allowed the creation of the LSP provided the climate for its securance of Supreme Court decisions favorable to its clients." (115).

Much is made of the "confluence" of factors as a predictive model of Supreme Court decision-making: litigant claims, avail- able legal basis, judicial sympathy, favorable political climate. But this is fairly standard text-book fare.

The most important contribution of this research may be its analysis of the doctrinal developments wrought via LSP cases, especially in the due process and equal protection areas. And here the author joins the long-standing debate as to the overall success of federally-funded legal services: how effective was the program in achieving its goals? Lawrence appears to side with the Earl Johnson (1974) faction, arguing for the long-term importance of Supreme Court victories and the overall effectiveness of the program in gaining specific advances for the poor (146-7). But as with other assessments, such cheery conclusions are usually based on a restatement of program goals. More traditional (and pessi- mistic) assessments are given full consideration in the book, and for this writer, still carry the day. But what has been needed for some time is a serious, systematic study of the overall impact of the program. And until we have that, we may expect the debate to continue as to whether the glass is half empty or half full.

In sum, and despite the marshaling of much useful new data, the Lawrence study contains few surprises. The author's emphasis on the Supreme Court end of the LSP effort certainly helps to round out our knowledge of the legal services experiment. But as noted, the chief conclusions reached -- that the LSP litigation campaign did not conform to the strategy of NAACP-type interest groups, and that the "felt necessities of the time" can dictate Supreme Court certiorari and substantive decisional behavior -- are not at variance with traditional understandings of the program and of Supreme Court decision-making.

References

Bamberger, E. Clinton (1966) "Address to the National Conference of Bar Presidents," February 19.

Johnson, Earl, Jr. (1974) JUSTICE AND REFORM: THE FORMATIVE YEARS OF THE AMERICAN LEGAL SERVICES PROGRAM. New York: Russell Sage.

Kessler, Mark (1987) LEGAL SERVICES FOR THE POOR: A CONTEMPORARY ANALYSIS OF INTER-ORGANIZATIONAL POLITICS. Westport, Ct.: Greenwood Press.

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Krislov, Sam (1973) "The OEO Lawyers Fail to Constitutionalize a Right to Welfare: A Study in the Uses and Limits of the Judicial Process," 58 MINNESOTA LAW REVIEW 211.

Smith, Christopher E. (1991) COURTS AND THE POOR. Chicago: Nelson-Hall Publishers.