Fleming on the Public Interest in the Private Law of the Poor

Anne Fleming, Georgetown University Law Center, has posted The Public Interest in the Private Law of the Poor, which appeared in the Harvard Law & Policy Review 14 (2019): 159-203:

This Article begins to explore the uncharted connections between private law and poverty law, revealing a striking pattern that is only visible when these two bodies of law are viewed in the same frame. Many poverty law scholars have focused on the rules that regulate government assistance to the poor. They have left largely left unexamined the private law of the poor — meaning, laws that govern the private economic relationships of those living in poverty or in danger of falling into destitution. At the same time, the study of private law is flourishing among scholars who seek to understand the law’s vision of justice in relations between private individuals. But these scholars often seek that vision within the law’s doctrinal structures, which betray little overt concern with poverty.

Revealing the connections between the two fields, this Article shows how concerns about public spending on poor relief have shaped debates over the private law of the poor for over a century. It traces the recurrence of one rationale for regulation, the prevention of “pauperism,” that explicitly linked private law rules with poverty alleviation. Proponents of the anti-pauperism argument claimed that private law, if properly structured, could help prevent dependence on poor relief and thereby reduce the burden on the public fist of caring for poor households. Thus, they imagined the private law of the poor as one component of a larger system of rules designed to keep families self-supporting and off the poor relief rolls.

Drawing on original research across a range of source materials, this Article traces the history of the anti-pauperism argument and offers several explanations for its enduring appeal. It then describes the implications of this history for law and economics scholars, for present-day fights against economic inequality and in favor of regulatory reform, and for breaking down the silos between private law and poverty law.

--Dan Ernst