Anthony Victor Alfieri

Service Delivery, Resource Allocation and Access to Justice: Greiner and Pattanayak and the Research Imperative

In this essay, we reflect on Jim Greiner and Cassandra Pattanayak’s provocative article reporting the results of a randomized controlled trial evaluating legal assistance to low-income clients at the Harvard Legal Aid Bureau. Studying the outcomes of appeals from initial denials of unemployment insurance benefit claims Greiner and Pattanayak asked, what difference does legal representation make? Their answer is that “an offer of HLAB representation had no statistically significant effect on the probability that a claimant would prevail, but that the offer did delay the adjudicatory process.” That is, not only was an offer of legal assistance immaterial to the case outcome, it may have harmed clients’ interests. The Greiner and Pattanayak findings challenge our intuition, experience and deeply-held professional belief that lawyer representation of indigent clients in civil matters is fundamental to the pursuit of justice. Our first reaction is that the study must have fatal conceptual or methodological flaws – the researchers studied the wrong thing in the wrong way. Even when we learn that the study is credible and well designed, we doubt that this kind of research is a worthwhile use of our time or money relative to serving needy clients. Finally, and perhaps most importantly, we worry that the published results will only serve as fodder for the decades-long political assault on legal services for the poor. If replicated across venues, however, studies like Greiner and Pattanayak’s can tell us a great deal about individual representation, program design and systemic access to justice questions. In fact, we cannot make genuine progress in any of these areas – much less marshal the case for more robust legal aid investments and the right to counsel in some civil cases – without better evidence of when, where and for whom representation makes a difference. Fortunately, developments in law schools, the professions and a growing demand for evidence-driven policymaking provide support, infrastructure and incentive for such research. For these reasons, we urge legal services lawyers and clinical law professors to collaborate in an expansive, empirical research agenda.

Faith in Community: Representing 'Colored Town'

In previous work investigating the role of race, lawyers, and ethics in the American criminal justice system, I analyzed the use of racial identity, racialized narrative, and race-conscious representation by prosecutors and defenders in cases of racially-motivated violence. This Article extends that project by examining the race-conscious practices and dilemmas of lawyers representing communities of color in combating the public and private forces of urban impoverishment. Part I surveys law school clinical practices of community lawyering. Part II assesses theories of community lawyering, drawing on the record of community economic development, the rise of the theoretics of practice movement, the history of community organizing, and the still evolving rebellious lawyering tradition. Part III considers critiques of community lawyering distilled from contemporary clinical legal scholarship. Part IV appraises the normative and practical dilemmas of race-conscious community lawyering practices.

Prosecuting Violence/Reconstructing Community

For two centuries, the private violence of American history has paraded into courts for public trial. Often dramatized by the spectacle of rape and murder, the public trials of private violence increasingly are seen to decide the fates of both the accused and the victim of crime. The fate of community, whether the community of the victim, the accused, or the public, seems at first blush untouched by such trials. Like victims and their families, however, communities struck by violence suffer profound loss. That loss is expressed in the destruction of public discourse, reason, and citizenship. This public ruin is not simply the result of interpretive and material violence; rather it is a consequence as well of the force of law and legal agents. The forum of laws violence is the criminal justice system. The agents of its advocacy are prosecutors and criminal defense lawyers. Their acts and ethics work to shape the prosecution of violence. When that prosecution confronts race, law and community each faces trial and, inevitably, the despoiling of public interracial dialogue. Indeed, the prosecution of racial violence typically silences the reasoned public deliberation and exchange necessary to construct interracial community. The norms and narratives of community and criminal justice heard at the trials of private racial violence by no means ordain this result. Reflecting the institutional and regulatory complexity of multiple prosecutorial roles and burdens, those norms and narratives grant both freedom and constraint in the prosecution of racially motivated violence. Guided by the lessons of law reform movements and the teachings of grassroots community organizations, the challenge for prosecutors in race cases is to overcome the burden of silencing tradition and to explore the discretionary freedom of reconstructing interracial community.