During the 1960s and early 1970s, impact litigation became a powerful instrument for welfare reform. During this period, lawsuits were typically filed for the explicit purpose of compelling systemic change. Such lawsuits were often focused on defendants and their practices rather than on plaintiffs, their injuries, and their needs. Litigation was typically controlled by welfare specialists working out of “back-up” centers, rather than by neighborhood advocates. The individuals who served as named plaintiffs in these lawsuits sometimes had little contact with their lawyers or involvement in the lawsuit after the complaint was filed and their depositions recorded.
As a weapon in the war against poverty, impact litigation was remarkably successful. Litigation led to sweeping changes, particularly in the Aid to Families with Dependent Children (AFDC) program, where lawsuits forced states to enforce federal eligibility standards and procedural rules. These changes opened up the program to Southern Blacks for the first time and led to a rapid expansion of AFDC. At the same time, recipients gained a new array of procedural protections. Because the remedies granted in their lawsuits were so potent, welfare lawyers did not feel the need to explore other, less direct ways that litigation might help make change.
Times have been harsh for poor people and their advocates in the 1980s. In addition to the swing to the right in the government, courts and public opinion,” funding for poverty lawyers has been drastically reduced. Funding cuts and programmatic restrictions have weakened the back-up centers and limited the capacity of legal aid lawyers to design and litigate class action lawsuits. Likewise, procedural rules enacted in the 1980s subject lawyers to sanctions for pursuing “frivolous… [or] … unwarranted” litigation, and recent doctrinal developments make it more difficult for public interest lawyers to recover attorneys’ fees under fee-shifting statutes. So, while impact litigation remains a viable strategy in the 1980s in some contexts,” poor people’s advocates can no longer assume that a 1970s-style impact lawsuit will be the optimal response to every issue.
In this changed climate, where litigation no longer consistently produces systemic reform, poor people’s advocates must be creative and flexible in responding to their clients’ needs. They cannot simply “file a lawsuit” to solve every problem. When they do litigate, lawyers cannot always expect relief in the form of a sweeping injunction, or even to have their fees awarded. Rather, welfare lawyers of the 1990s must explore the many dimensions in which litigation might contribute to progressive change. For example, a well-crafted lawsuit might have an educative impact on plaintiffs, their lawyers, and the public at large, as well as a coercive impact on defendants; a lawsuit might be an occasion for plaintiffs and their allies to learn about their own powers to make change.
This Article explores the potential of welfare litigation to become an occasion for the education and mobilization of poor people and their advocates. Ambitious images of litigation as empowerment appeared in the writings of welfare advocates during the 1960s and 1970s, even if conditions seldom drove that generation of lawyers to grapple with those aspirations in their practice. After describing those images, I identify two features of our legal culture that hinder advocates from crafting litigation into an opportunity for education as well as a weapon for coercion.
Two case studies in which advocates responded to these obstacles in innovative ways are then considered. Through the two cases, I suggest that litigation can be an occasion of participatory, educative experiences for clients and their advocates. In some circumstances, the engagement of clients in this fashion contributes to the lawsuit’s narrowly instrumental goals. In other situations, the mobilization of clients and advocates happens outside of the formal boundaries of the litigation. I argue that, to make litigation an occasion for empowerment in this fashion, advocates must understand the systemic obstacles to client participation, appreciate the cultural norms and practices in their clients’ own communities, and respond flexibly in each political and institutional context.
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