Engendering the History of Legal Aid

The standard history of legal aid begins with the founding of the New York Legal Aid Society in 1876. It then chronicles male attorneys’ efforts to professionalize legal services during the Progressive Era, culminating in the 1919 publication of Reginald Heber Smith’s famous text, Justice for the Poor. By centering gender as a category of analysis, Felice Batlan cracks this narrative wide open. Women and Justice for the Poor demonstrates that the dominance of male attorneys and clients was contested from the start. By exposing the temporality and contingency of categories that Smith and many previous historians took for granted, Batlan deconstructs conceptual boundaries between law and social work, lawyers and reformers. The book, which recently won the Law and Society Association’s J. Willard Hurst Award for the best book in sociolegal history, is beautifully written, precisely researched, and strongly argued.

Batlan shows that organized legal services for the poor began earlier than we have recognized, in a female dominion of legal aid that prevailed from the end of the Civil War through 1910. Although a rich historical literature has documented women’s social reform activities in this period, Batlan provocatively argues that many female-dominated organizations functioned as legal aid services. Women reformers in New York founded the Working Women’s Union in 1863. Similar organizations followed in Boston, Chicago, and much later in New Orleans. Elite women reformers acted as lay lawyers. They educated themselves about caselaw, used moral suasion and social pressure to advocate for clients, founded service institutions, and campaigned for reform in local government.

Male attorneys began to assert control over the provision of legal services to the poor with the first national conference on legal aid in 1911. Batlan shows how these attorneys endeavored to professionalize legal aid, narrowing its scope in the process. The types of claims changed. As the male breadwinner became the archetypical client, legal aid services began increasingly to exclude women whose claims regarding spousal abuse or mothers’ custody were perceived to disrupt the family. In addition, the nature of the lawyer-client relationship changed. Female lay lawyers had approached the lawyer-client relationship holistically, offering sympathy and a range of social and financial supports along with legal guidance. Male legal aid attorneys eschewed emotion in favor of objectivity and restricted their practice to technical legal services. The masculinization and professionalization of legal aid accelerated through the 1920s, until federal funding opportunities during the Depression encouraged legal aid organizations to once again conceptualize themselves as a form of social service. A period of enhanced cooperation between lawyers and social workers continued through World War II—a trend that also empowered women clients. In the late 1950s and through the 1960s, however, legal aid attorneys again began to distance themselves from social workers. The retirement of leading female aid attorneys coincided with several trends: an increasing emphasis on prestigious educational credentials as criteria for a new crop of legal aid attorneys, the formalization of organizational structures, and a turn toward aggressive, rights-oriented litigation.

Gender inflected the practice of both male and female legal aid lawyers, influencing their view of their clients and their framing of clients’ claims. In a particularly fascinating chapter, Batlan examines how the attorneys of the New York Legal Aid Society, steeped in a masculine legal culture focused on rights and constitutionalism, used gender as a measuring stick to evaluate their clients. They perceived Jewish men as excessively feminine and, therefore, undeserving; sailors, by contrast, were hyper-masculine and, consequently, deserving of rights. Female domestic servants, meanwhile, lacked rights precisely because they toiled in a physical and social space constructed as feminine and harmonious. Batlan’s examination of domestic workers provides further evidence that coverture persisted far beyond the passage of the Married Women’s Property Acts in the 1840s and 1850s. Legal aid lawyers did not view female workers as fully independent contractual actors and, as a consequence, were reluctant to impose obligations on employers to pay quantum meruit to domestic workers who quit early. Even when women legal aid lawyers brought wage claims on behalf of domestic workers, they represented employers’ failure to pay as fraud rather than breach of contract. Batlan’s deft analysis shows how gender ideologies had real effects on social experience.

A second, only slightly less explicit theme explores the place of legal aid in the legal history of capitalism. Ever since Morton Horwitz’s Transformation of American Law in 1977, we have understood the importance of class and capitalism to changes in legal doctrine. Batlan shows us that emerging legal histories of capitalism should include the history of lawyering itself. The development of legal aid, she argues, was inextricably linked with efforts to discipline immigrants to capitalism’s norms. Early women lay lawyers believed that the noble and right thing was to provide legal services free of charge. Charging a fee to poor clients who could not afford it would only exacerbate their dependence. Professional legal aid lawyers subsequently inverted the reasoning of earlier women’s groups, associating charitable legal services with dependency. Instead they argued that fees for service would promote the kind of independence necessary for democratic citizenship.

Women and Justice for the Poor opens up avenues for further research on gender and legal history of capitalism. In particular, it illustrates how maternalist reform has served as a check on capitalist rationality. Women lay lawyers, influenced by maternalist ideologies, embraced a holistic and empathic approach to the lawyer-client relationship. They pursued dignitary as well as monetary remedies and viewed no claim as too small to merit litigation. As legal services professionalized, male attorneys grew more preoccupied with the efficiency of their services and dismissive of clients viewed as bad bets. Maternalism, however, functions as a double-edged sword in Batlan’s narrative, as it does in much of women’s legal history. At moments, Batlan suggests that cross-class alliances existed between elite women lay lawyers and their working-class clients. That conclusion may be justified. Yet source limitations meant that Batlan was able to give a fuller portrait of elite actors in her story, though she does an admirable job of gleaning the archives for insight into non-elite perspectives. Moreover, as Batlan observes, the idealization of the home obscured the exploitation and negated the rights of domestic workers. Ultimately, Batlan argues persuasively that substantive justice concerns not only material outcomes of litigation but also the nature of the lawyer-client relationship. This is an important point for law students as well as historians, providing another reason—if you need more—to consider assigning excerpts of this book in a seminar.

Engendering the history of legal aid raises a host of historical and normative questions. How and why did the provision of legal services become separated from a range of social support services? Should the lawyer-client relationship remain isolated from social work? To what extent should the legal profession retain a monopoly on legal services? Historians and legal scholars interested in answering these questions should move Women and Justice for the Poor to the top of their reading lists.

Cite as: Deborah Dinner, Engendering the History of Legal Aid, JOTWELL (January 4, 2017) (reviewing Felice Batlan, Women and Justice for the Poor: A History of Legal Aid, 1863-1945 (2015)), https://legalhist.jotwell.com/engendering-the-history-of-legal-aid/.