Poverty Lawyering in the States
in Holes in the Safety Net: Federalism and Poverty, Cambridge Univ. Press (2019) (Ezra Rosser, ed.)
20 Pages Posted: 1 Apr 2020
Date Written: September 1, 2019
Fifty years ago, legal aid lawyers challenged Alabama’s “substitute father” rule. This rule, used in several states, permitted Alabama caseworkers to deny welfare benefits to children if their mother lived with a man or even had a romantic relationship outside the home. The Supreme Court in King v. Smith, 392 U.S. 309 (1968), agreed with the legal services attorneys and the lower court that Alabama’s practice violated the Social Security Act. In a unanimous decision, Chief Justice Warren concluded that “destitute children who are legally fatherless cannot be flatly denied federally funded assistance on the transparent fiction that they have a substitute father.” In doing so, the Supreme Court struck down, for the first time, a state welfare provision based on federal law.
Fifty years after King, it is worth assessing the state of poverty lawyering. Lawyering in this area has always been deeply entangled with the actions of individual states. These states act under, within, and against rules emanating from Congress and fashioned in greater detail by agencies and courts. However, 50 years on from King v. Smith, poverty lawyering is even more state-focused. The increasingly state-based nature of the work has wide-ranging implications for legal practice and the development of doctrine.
Keywords: poverty law, federalism, legal aid
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