Upstream Lawyering

Kate Mitchell (Loyola University Chicago), Upstream Lawyering, SSRN (2022):

Three friends were walking down a path along a river. Suddenly they heard crying and screaming from the river and noticed a small child flailing and caught up in the current. The friends jumped in the river to save the child. As they saved this child, they could see more children flailing about and coming downstream towards them. The friends quickly became consumed and overwhelmed trying to save all of the children in the river, but they could not keep up. One friend started to gather branches and logs to try to build a raft which could catch more children as she continued to save as many children passing close to her, but it was not enough to save all of the children. After some time, another friend headed to shore and started walking on the path upstream. The two friends called out to their friend, begging for help and frustrated that they would no longer help save the drowning children. They called out to their friend, “What are you doing? Where are you going? We need help saving the children!” The friend replied, “I am going upstream to find out how all of these children are getting into the river.”

This river story parable serves as a foundation of public health theory and sets the stage for an “upstream” framework for problem solving. The public health concept of upstream practice has helped to guide the public health analysis of social and health related challenges and problem solving for decades and has more recently been utilized by doctors and lawyers as a framework for identifying and solving systemic issues that result in health inequities at their source. Concepts like the “patients to policy approach,” “the health justice approach,” and “systems-based approaches” have all been used to explore methods of lawyering and systems change advocacy that can be considered upstream. These theories offer a mechanism for stepping out of the triage process of lawyering to head on the path up river to identify the source of the injustice or inequities. Practicing upstream is particularly critical when trying to address systemic issues like poverty and oppression. While many articles have discussed upstream practice in the law, none have fully explored the concept of upstream practice as developed in the field of public health, considered its relationships to the history of poverty law and systems-based lawyering, or outlined the application of upstream theory to law in a practice focused guide.

This article intends to explore upstream lawyering using the public health framework of upstreaming. Section I of this article will explore the concept of upstream practice as developed in public health theory and its applications to problem solving in other professions including medicine and the law. Section II of this article will explore the history of poverty law and systems lawyering through the lens of an upstream lawyering framework. Section III will provide guidance on methods and strategies for engaging in “upstream lawyering.”