Law as Largess: Shifting Paradigms of Law for the Poor

Abstract

The article examines the tension between the principles of the Rule of Law and cultural norms of self-sufficiency. It begins by reviewing the principles of the Rule of Law as an ideal, the pursuit of which has led to historical efforts to meet the legal needs of the poor. It then examines recent legal events including federal statutory changes, three Supreme Court cases, and a federal circuit court case which have limited legal resources for those who cannot pay. The article then examines these developments in the context of a sea-change in the political environment of the nation, coinciding with increasing wealth disparities and the shrinking of social welfare programs. It argues that diminished legal resources for the poor are best understood in the context of the structural inequities and the normative biases by which goods and services are delivered to the needy. It reviews the principles of the welfare state as well as charity for the purposes of examining their relevance to legal services for the poor and the deficiencies that result from either method of largess. The article concludes with a recognition that although the current political realities reduce the possibilities for decommodifying the law, corrective measures to expand access to the law are both necessary and possible.