Law as Largess: Shifting Paradigms of Law for the Poor

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TABLE OF CONTENTS 
 
INTRODUCTION 
 
I. THE RULE OF LAW: THE CELEBRATION 
     AND THE SUBSTANCE 
     A. Eulogizing the Principles of Law 
     B. Principles of Law and the Poor 
     C. A Historical Perspective--Providing Law for the Poor 
         1. Legal Aid/Legal Services 
         2. Complementary Mechanisms 
 
II. DIMINISHING RESOURCES OF LAW FOR THE POOR: 
     RECENT DEVELOPMENTS 
     A. The Assault on Legal Services 
         1. Congressional Restrictions 
         2. Challenging the Restrictions 
     B. Challenges to Interest on Lawyers Trust Accounts 
        (IOLTA) Programs 
     C. Constraining Law School Clinics 
     D. Reducing Opportunities for the Award of Legal Fees: 
      Buckhannon Board and Care Home, Inc. v. West Virginia 
      Department of Health and Human Resources 
 
III. LAW AS LARGESS: PUBLIC WELFARE AND PRIVATE CHARITY 
     A. Public Welfare in the Liberal Political and 
         Economic State 
         1. Political and Economic Theory 
         2. Characterizing the Poor in a Liberal Welfare State 
         3. Resulting Welfare Policies and Programs 
     B. Law for the Poor as Public Largess 
         1. Law for the Poor Shaped by Political and 
             Economic Theory 
         2. Law for the Poor as Welfare: Characterizing Poor 
             Clients and Their Lawyers 
         3. Legal Services Restrictions in the Service 
             of the Liberal Welfare State 
     C. The Culture of Philanthropy 
         1. Principles of Philanthropy 
         2. Operative Principles 
         3. Resulting Philanthropic Policies 
     D. Law as Charity 
         1. The Influence of Principles of Philanthropy on 
             Law for the Poor 
         2. Law as Charity: Operative Principles 
         3. Programmatic Effects 
 
IV. ACTUALIZING THE PRINCIPLES OF LAW 
     A. Public Responsibility 
         1. Expressing National Values 
         2. Unrestricted Programs: Affecting Outcomes 
             for the Poor 
         3. Feasibility Issues 
     B. Reforms to Charity 
     C. A Civil Gideon 
 
CONCLUSION 

[T]ear down every charitable institution in the country and build on its ruins a temple of justice.

--Mary Harris "Mother" Jones (1)

INTRODUCTION

The principles of the Rule of Law are deeply embedded in the discursive structure of American legal narratives, principally as a means by which to take measure of a democratic society and render plausible the ideals of justice and fairness. (2) As an abstract principle, the Rule of Law serves as a marker of modernity, endowed with the promise of equality, protection from private and public abuse, and the capacity for the just resolution of disputes. (3) Its symbolic value cannot be overstated. Justice for all is an ideal cherished by citizens. To paraphrase Edward Rubin's description of the concept of democracy, it is the "temple at which all modern political leaders worship." (4)

The Rule of Law has assumed mythical proportions denoting political virtue and public morality, but it has also produced standards by which to measure fulfillment of the ideal. Themes of equality and justice resonate precisely because they are conceived as a covenant made with the body politic and generally held to be the foundation of democratic government. Efforts to enact these principles as a way of demonstrating the efficacy of liberty and justice for all have summoned into existence a variety of structures and institutions, all dedicated to upholding the Rule of Law.

At the same time, another set of principles, no less prominent in the American ethos, informs national values and acts to counter the commitments promised in the Rule of Law. The proposition of self-sufficiency, a kind of fierce independence and individualism, is extolled as a fundamental virtue and celebrates the ability of individuals to pursue and obtain economic interests in the market. …