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Scholarship

Juliet Brodie

Poverty Law

Photo by Jennifer Paschal

Faculty Scholarship_Brodie.bw

After more than 20 years serving low-income clients, many attorneys would be suffering from “compassion fatigue,” professional burnout, or a combination of the two. But not Juliet Brodie, director of the Stanford Community Law Clinic. Named associate dean of clinical education and director of the Mills Legal Clinic in the spring of 2013, Brodie is as energized and as motivated as ever to take on the legal issues confronting the poor.

“This is the 50th anniversary of Lyndon Johnson’s declaration of the ‘War on Poverty,’ but we are still living in two Americas—one rich, one poor,” she says. “It seems like the perfect opportunity to rededicate legal education to a serious examination of this subject.”

While juggling a demanding clinical caseload and her recently acquired administrative duties, Brodie has crossed into the scholarly realm with her co-authorship of Poverty Law: Policy & Practice. Published this spring, the casebook is designed to introduce a new generation of law students to the subject that is nearest and dearest to her.

“I have been practicing poverty law my entire career,” she says, “but it’s not an easy subject to capture in a single class. It cuts across many different areas, and there hasn’t been a textbook in 17 years.”

As a result, those who might be interested in offering a poverty law course face a “giant entry tax,” says Brodie. “Professors basically have had to assemble their own materials, focusing on their areas of expertise, which creates a real disincentive to teaching a true survey class in the issues of law and the poor.” To prepare to write the book, Brodie and her co-authors started by surveying law professors nationwide who had done just that. “We wanted to capture best practices and to see if a poverty law ‘canon’ had been implicitly established by these professors’ choices.” They found surprisingly little overlap. “Other than teaching Goldberg v. Kelly [ed. note: the 1970 U.S. Supreme Court case establishing a due process right to a hearing before the termination of welfare benefits] most professors seemed to be going in depth in just one or two areas, rather than covering anything like the waterfront.” With Poverty Law, Brodie and her co-authors aim to change that.

“We’ve structured the book so that it will provide a starting place for people who want to teach a broad survey course,” Brodie explains. “We hope that by consolidating the relevant material, professors nationwide will be encouraged to teach poverty law in their own way.”

The book begins with three chapters that provide an overview of the themes that underlie the subject.

“One of the fundamental conversations about poverty involves its definition, which we cover in the first chapter,” says Brodie. “Poverty can be relative or absolute. For example, if someone lives in East Palo Alto, she may be poor relative to someone who lives in Palo Alto, but rich in comparison with someone living in an undeveloped country. The book is deeply embedded in American norms and definitions, but also mindful of the relative wealth of the United States when compared with other nations. In whichever setting, how you define poverty affects how large the problem will appear and, consequently, the perceived importance of antipoverty efforts.”

Also critical to an understanding of the subject is the evolution of social welfare policy, which is traced in the second chapter from its roots in the English Poor Laws to current efforts embodied in health care legislation.

“Unfortunately,” observes Brodie, “history reveals that the 1960’s ‘War on Poverty’ was followed by the 1990’s ‘War on Welfare.’ It’s notable that reducing poverty was not even among the stated goals of the 1996 welfare reform. The goal of that legislation, as expressed by the Congress in the language of the statute itself, was to end welfare, not to end poverty. Unsurprisingly, ending welfare was a lot easier than reducing poverty!” In fact, the U.S. poverty rate this year stands at 15 percent, which is a rise from where it stood in the late 1990s—at 11 to 12 percent.

The third chapter presents the set of cases that poverty lawyers brought to the U.S. Supreme Court in the 1960s and 70s and provides context and direction for current advocacy.

“Lawyers have been trying for decades to persuade the Court to apply some kind of heightened scrutiny when reviewing government actions that affect the poor,” says Brodie. “But regardless of the strategies, including due process and equal protection challenges, the Court has remained resistant.”

Following the overview, the book then pivots to a set of seven chapters, each of which examines the federal policy response to poverty in a distinct area: “Welfare,” “Work,” “Housing,” “Health,” “Education,” “Criminalization,” and “Access to Justice.”

“This is where professors can zero in on what interests them,” Brodie explains. “For example, in the ‘Criminalization’ chapter we look at an array of laws—including anti-loitering and anti-solicitation ordinances—that, while not explicitly targeting the poor, impact them disproportionately.” These chapters also highlight innovative and current advocacy efforts at the state and local levels.

The final two chapters, “Markets” and “International Human Rights,” consider broader ways to advance the antipoverty agenda.

“If international law suggests that no human being should be without adequate housing and nutrition and a subsistence income, can that be brought to any persuasive effect under U.S. law?” asks Brodie. “Alternatively, the current focus on income inequality could provide the necessary political lever for legislators to address the unequal distribution of wealth and opportunity in this country.”

With Poverty Law re-animating the academic focus on these issues, Brodie is optimistic that her life’s work will be carried forward. “There does seem to be a window opening right now for interest in these issues, with renewed focus on what is now called ‘income inequality,’ ” she says. “But isn’t that just ‘poverty’ by another name?”

Brodie and her co-authors hope that, armed with this new ready resource, a new generation of law teachers and students will be equipped to examine how law can be used to help the “have-nots,” regardless of the name. “It just doesn’t seem right that 25 percent of children in the richest nation in the world are living in poverty. And it seems like law, and lawyers, must be part of the solution.” SL

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