Two articles of interest that came out of a symposium honoring Joel F. Handler (UCLA) look well worth checking out. UCLA Law Review also did a one page overview of Handler’s scholarly contributions that is worth reading.
1. Scott L. Cummings, The Pursuit of Legal Rights—and Beyond, 59 UCLA L. Rev. 506 (2012). Abstract below:
Just over thirty years ago, in a seminal trilogy of books, Joel Handler and his collaborators made three foundational contributions to the study of public interest lawyers. The first was theoretical, defining public interest law as a positive externality producing legal activity; the second was organizational, conceptualizing public interest law as an industry with multiple sectors that provided legal services; and the third was practical, examining the conditions under which legal rights activities were likely to succeed or fail. Looking back, Handler’s work may be read to support two distinct, and seemingly oppositional, claims: first (optimistically), that public interest lawyers are essential to robust participatory democracy and progressive social change (and thus society should support the field’s expansion), and second (pessimistically), that those same lawyers are nonetheless (at best) doomed to fail and (at worst) destined to be co-opted by the very political system they seek to transform. I call this the Paradox of Public Interest Law. In this Essay, I seek to evaluate the Paradox in light of the dramatically different political, economic, and intellectual context within which the public interest law movement now operates. I trace the arc of the movement’s change, emphasizing the role of ideological, organizational, and tactical complexity in driving new understandings of the meaning and practice of public interest law: from a coherent definition to a set of competing theories; from a nonprofit-centered view of the industry to one that incorporates a greater role for private sector delivery; and from an emphasis on the pursuit of legal rights in court as the central social change tactic to a broader focus on multiple advocacy strategies coordinated across multiple political domains. Evaluating these changes, I suggest that Handler’s optimistic hope for more public interest lawyers has been realized, while some of his pessimism has also been validated—but not entirely for the reasons that he imagined. In the end, Handler’s legacy teaches that the pursuit of legal rights—despite the risks—is still worth the fight.
2. Noah D. Zatz, Poverty Unmodified?: Critical Reflections on the Deserving/Undeserving Distinction, 59 UCLA L. Rev. 550 (2012). Abstract below:
According to a familiar and influential analysis, antipoverty programs are structured by distinctions between the deserving and undeserving poor. Through techniques like behavioral conditions on benefit eligibility, these moral distinctions divide the poor and interfere with providing assistance to all those in need. This analytical framework animates much critical scholarship on social welfare policy and guides most welfare rights litigation about benefit eligibility requirements.
This Essay challenges this “deservingness analytic” by questioning its separation of deservingness from need, its imagination of the poor as a preexisting population whose need can be conceptualized and determined apart from the moralistic concerns of deservingness. This supposed divide between deservingness and need is breached from both sides: Seemingly moralistic concerns with personal behavior often can be recast as assessments of economic need, and conventional techniques of measuring economic need inevitably implicate moralistic questions about personal behavior. Both phenomena become apparent once we unpack the conventional idea that the extent of “available” resources necessarily affects whether any needs are unmet.
Dismantling the barrier between deservingness and need facilitates new critical perspectives on both concepts. The implicit moral content of need assessments becomes visible and contestable, not for moralism alone but for moral error. I sketch such an argument with regard to the ubiquitous exclusion of childcare from the needs considered by means-tested benefits. Because behavioral conditions and need assessments are linked, new accounts of need also produce new accounts of conditions. For instance, broadening needs to incorporate childcare leads to broadening what should qualify as “work” under a work requirement, the quintessential behavioral eligibility condition.