Kornbluh & Tani, "Siting the Legal History of Poverty," a.k.a. Even MORE on the Blackwell Companion to American History

Last week we ran a few posts on the new Blackwell Companion to American Legal History. When this volume was in its early stages, the editors contacted Felicia Kornbluh (University of Vermont) about writing a chapter on the history of law and poverty. Felicia was kind enough to invite me to co-author. We had some real revelations as we attempted to chart the historiography of this sub-field. For one, we began to question the wisdom of characterizing law and poverty scholarship as a discrete body of work, when in fact it exists at the intersections of numerous other historical fields and closely related disciplines (e.g. the welfare state scholarship in political science and sociology). We found ourselves searching for a way of organizing the material that would emphasize these connections. In the process of canvassing the writing on this topic, we also began thinking bigger and questioning the prevailing methods for investigating legal change over time. In this chapter we sketch the outlines of a new and emerging method, visible in recent law and poverty scholarship and elsewhere: the method is based on the idea that actors "below, above, and amidst" are potential shapers of law and legal meaning; historians who embrace this method look to formal law and politics, the legal claims-making of the non-elite, and lots of stuff in between.

Here are the first four paragraphs of our Chapter, titled "Siting the Legal History of Poverty: Below, Above, and Amidst":

Where does “the legal history of poverty” begin and end? Virtually all law may be seen as the law of poverty. Property law is, in its unstated obverse, the law of poverty; the law of marriage is, among other things, the law of property distribution and mutual obligation between husband and wife; tax laws may impoverish the taxpayer or, by collecting paltry revenues, may prevent the state from remediating others’ distress. Even when poor and working-class people have enjoyed access to lawyers and legal processes, law has helped generate, preserve, and legitimize inequalities of wealth. Some colleagues faced with this challenge have focused on public benefits law (Nice and Trubek, 1997). While we place much law outside of our framework, we widen our frame beyond public benefits or poverty law as traditionally understood.

We organize this chapter around sites where poor people encountered law: towns, institutions, courts, agencies, neighborhoods. Working from the classic statement, “Legal History from Below,” by William Forbath, Hendrik Hartog, and Martha Minow, we argue that law’s meaning in those sites – its force, significance, and promise – has come from “below,” “above,” and “amidst.” The “below” perspective has become familiar. According to Forbath, Hartog, and Minow, formal law has been like a banner held aloft in a crowd; its operative meaning derives from its movement through the grasping hands of the people (1985: 765). We are profoundly shaped by this understanding of American law. However, we also emphasize the role of law from above in the historical experiences of poor people. And we argue that the law of poverty resulted equally from the actions of people who were neither “above” nor “below”: lower-level bureaucrats, social caseworkers, and neighborhood attorneys who made law amidst their daily interpretations of statutes and judicial decisions.

This perspective captures the field’s complexity and encourages its most exciting new developments. Whereas “legal history from below” was once a vital critique of legal historical scholarship, social history has reigned for decades, and socio-legal history actively attracts practitioners (Welke and Hartog, 2009). Political history has likewise been reborn, in forms encompassing many of the concerns of social and cultural history (Jacobs, Novak, and Zelizer, 2003). Constitutional history, which once appeared moribund (Scheiber, 1981, has been similarly revivified (Kalman, 2005; Goluboff, 2007). By looking “above,” “below,” and “amidst” we seek to foster a richer, more consistent dialogue among scholars hailing from diverse traditions.

To highlight areas of common ground, and de-emphasize methodological and disciplinary differences, we focus on sites of legal encounter. To take one example: the welfare rights litigant Mrs. Sylvester Smith did not first encounter law when the Supreme Court adjudicated King v. Smith (1968), which overturned a regulation denying Aid to Dependent Children payments to mothers who “cohabited” with able-bodied men. Smith encountered law years earlier, following her husband’s death in 1956, when a county agency deemed her eligible for public assistance, and in 1966, when the agency terminated her family ’ s benefits on the basis of the “suitability” of her home. Smith’s engagement with law continued when she approached the Lawyers’ Constitutional Defense Committee, a private organization created to support the civil rights movement. Only then did she enter federal district court. Smith found law in a panoply of places and a range of forms: constitutional, statutory, administrative, informal, movement centered, and “aspirational” (Hartog, 1987; 1988). We strive to capture this diversity. Moving roughly chronologically, we explore the legal history of poverty as it appeared in towns, institutions, local courts, state and federal agencies, urban neighborhoods, and appellate courtrooms to highlight how law was made from “below,” “above,” and “amidst.”

To all you other contributors to the Blackwell volume: If you'd like to send in a few paragraphs about your contribution, we'd be happy to post. Hit us up at the blog email.