Saturday, January 17, 2009

Poverty and Con Law - Saturday Evening Review

Even if law students comply with Justice Scalia's widely reported remark last year admonishing them not to enroll in waste-of-time courses such as "Law and Poverty," it might not be sufficient to insulate students from the legal problems of poverty - - - at least if ConLawProf Stephen Loffredo has his way.

As part of a Symposium entitled "What Is the Place of Poverty Law in the Law School CurricuLoffredolum?: Looking Back and Planning for the Future," Loffredo confronted the "place" of poverty in a traditional Constitutional Law Structures course.  In his article, Poverty, Inequality, and Class In The Structural Constitutional Law Course, 34 Fordham Urb. L.J. 1239 (2007),  Loffredo admits that the relevance of poverty issues are more readily apparent in the "rights" portion (or separate course) of Constitutional Law courses, but argues that while not always apparent, legal issues of poverty and economic inequality are integral to constitutional structures courses. 

Most helpfully, Loffredo offers some very specific suggestions about integrating issues of poverty and class inequality.  His discussion of "the founding" and judicial review principles in Marbury v. Madison and after is especially noteworthy.  For example, Loffredo highlights a possible area of discussion:

students might be asked to consider whether the counter-majoritarian critique operates in the same way when litigants without access to economic power, and therefore little access to the political process, seek assistance from the courts.  If people living in poverty lack a democratically fair share of political access--if the ordinary channels of civic and political engagement are not open to them, so that courts are the only meaningful avenue or effective point of access--then perhaps the availability of judicial redress and the institution of judicial review in those cases does not deviate from democratic practice at all, but serves as a corrective that enhances democracy.

More provocative, perhaps, is Loffredo's suggestions regarding the dormant commerce clause.  Loffredo candidly states that a notion that "the Commerce Clause has anything to say about treatment of poor people may come as a surprise to students," and perhaps some ConLawProfs.  Here, Loffredo's suggestion is not so much about directing student discussion as about including different material.  He suggests that " a key, though largely neglected,"  dormant commerce clause case, Edwards v. California, 314 U.S. 160 (1941), "speaks eloquently to the issues of poverty, inclusion, and national community, and provides a window into the shifting judicial understandings of poor people and the nation's responsibility for the economic well-being of its citizens."   His  extended argument for the then-relevance and the continued relevance of Edwards is quite convincing. 

Loffredo also has suggestions for the Eleventh Amendment, Congressional power under section 5 of the Fourteenth Amendment, and even Martin v. Hunter's Lessee. These are all worth considering. Most of Loffredo's suggestions do not require retooling the Syllabus, but offer thoughts for teaching the structural dimensions of Constitutional Law to include poverty law issues.

These suggestions may be more timely now than when written.  In some of the article's introductory passages, Loffredo observes that the norm has become obscuring economic inequality and class issues throughout Constitutional Law and the law school curriculum.  Could it be that these observations are becoming less true at the beginning of 2009 given various changes in the political and economic climate?  All the more reason to consider Loffredo's suggestions.

RR

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