Confronting Opposition
I began writing up my new research and presenting it at a variety of workÂshops in law schools. This was, at times, discouraging and I encountered what I believe to be sexism. I write some of these comments not as revenge but rather to help others who might be struggling in similar ways.
Perhaps they will provide a sort of warning system for the roadblocks that others might encounter. Even though I now had solid evidence of the wideÂspread practice of women as lay lawyers and social workers providing legal aid, I was told multiple times that the story of women’s roles in legal aid was too insignificant to write about. That I was trying to fit such women into a story of the legal professional where they simply did not belong. It was, at most, a distracting side show. One colleague who was involved in studying legal aid repeatedly called my project that “little feminist thing” and urged me to focus on obtaining the oral histories of the men who were involved in legal aid in the 1970s. By telling a story about women, I was told that I was missing the big picture. No matter how much evidence I had of women non-lawyers providing legal aid services, and the suppresÂsion of such stories, I was constantly told that I did not have enough eviÂdence. I have seldom seen a male scholar, held to such standards regarding archival evidence. Such comments hurt deeply and significantly underÂmined my confidence in myself and my work. In part, this is why pictures and illustrations became so important to my book. Even if people would not believe my words, they could not dispute the images. These road barÂriers themselves seemed to replicate the very story that I was telling. I was challenging sacred stories and comparing male lawyers’ work in legal aid to that of women and social workers. Some obviously saw this as an insult or even an impossibility.Countering such comments, I luckily had a ring of support coming from a wonderful group of legal historians. Without them, I would have ceased writing. The other people who were particularly interested in my work were law school clinicians and those working in legal aid, primarily women, who wanted to learn their own history and who found in my work explanation for what they themselves saw and experienced on a daily basis. Yet, I was also writing at a moment of change in the discipline of legal history itself as more women came into the field and as the leadership itself changed.
The more complex and legitimate question that I had to answer was why male lawyers cared so deeply about who provided legal aid. After all, it was an expensive and time-consuming endeavour. Why not just let social workers and whomever else wanted to provide free legal services to the poor do so? What was really to be gained? What was at stake? There are a number of prongs to this answer. At a time when the bar was in the proÂcess of fully professionalising, it wanted a monopoly over the provision of legal aid. Moreover, leaders of the bar saw it as a lawyer’s duty to provide high-quality legal aid to clients and they wholeheartedly believed that only professional lawyers had the skills to do so. Likewise, in order to attract high-quality lawyers, legal aid was supposed to resemble any other law practice and law practices had few women. It was also about anxiety and lawyers’ status.[960]
More substantively, it went to the very questions of what services legal aid should supply, what clients it should take, and what “justice” might look like. Many lawyers saw justice as procedural in that access to quality technical legal advice to solve a narrowly defined legal problem constiÂtuted justice. Moreover, they believed in the rule of law and legal consis- tency.[961] In contrast, social workers, often more politically progressive than lawyers, believed that justice required that a client receive necessary social services and that law could be tailored to meet an individual’s needs.
Justice in the individual case, not the rule of law, was crucial.[962] Procedural justice in an unjust world could not create true justice, social workers argued.[963] Lawyers also saw social workers as being too sympathetic to their clients, especially female clients, and lacking the impartiality necessary to be a professional. Drawing upon some of the worst stereotypes of women, male legal aid lawyers and leaders saw female social workers as bossy, overÂbearing mothers who infantilised and infringed upon the rights of indeÂpendent male clients.[964] Perhaps even worse, they saw themselves as the equal of male attorneys.Each time that I thought my story had ended, the archives, especially those of Bradway, produced additional twists, turns, and ironies. Organisations of social workers who provided legal aid had their own complaints about lawyers who they found condescending, uncooperative, and at times untrained. Legal aid organisations such as the large Chicago Legal Aid Society (whose predecessor was the female run Protective Agency for Women and Children) were attached to social service agencies and were often run by women lawyers who supported social workers’ involvement in legal aid.[965] By the 1920s, there was a small but growing cadre of women lawyers providing legal aid. Their acceptance mapped on to the argument over social workers. Legal aid organisations adamantly opposed to social workers also refused to hire women attorneys. Although the New York Legal Aid Society had multiple women on staff prior to 1910, for an extended period after 1910, no women were employed. The Chicago Legal Aid Society employed eight women attorneys out of elevÂen.[966] Chicago’s head attorney, Marguerite Radar Gariepy, claimed that social workers were often able to get to the root of the legal problem whereas lawyers could not. She, along with other prestigious female social workers, argued that social workers should be further trained in law, thereby challenging the monopoly that lawyers sought to assert.[967] Social work schools were, in fact, already doing that by teaching legal subjects.[968] Other social workers complained of male lawyers’ treatment of female cliÂents and their refusal to believe the claims and complaints that women brought to legal aid offices.[969]
Much of NALAO’s arguments as well as those of bar leaders came crashing down during the Great Depression.
Many attorney-run standÂalone legal aid societies ran out of money and appeals that described legal aid as law offices for the poor were no longer salient.[970] Instead, even indeÂpendent legal aid societies began defining themselves as social welfare organisations.[971] As historians have long been aware, the language of welÂfare in the U.S. has a deep association with women and dependence. In addition, as new government benefits became available as part of the New Deal, they often brought with them legal issues, and social workers became specialists in being the intermediary between clients and the state. Increasingly, legal aid organisations, even the New York Legal Aid Society, began hiring social workers and with that women attorneys.[972] By 1935, women lawyers headed at least seven large legal aid societies. In addition, the federal government began providing subsidies to legal aid in connecÂtion with helping clients with New Deal benefit programmes. This was the first time that such federal subsidies were provided to legal aid organisaÂtions, and they allowed for the expansion of legal assistance.[973] Yet, some lawyers feared that any government funding would interfere with the independence of the bar and the integrity of legal aid.[974] Even with such fears, this realignment of legal aid and increased feminisation continued through World War II.[975] Finally, I thought that I could end my story on this triumphant note.Yet, some things did not line up. As I gazed through a variety of reports in the NALAO archive, the images, pictures, and illustrations that they contained became more male in the late 1950s, 1960s, and 1970s. How was this possible as the number of women who graduated from law school was dramatically increasing? Moreover, this was the very period in which the women’s movement was gaining strength. There also was a large litÂerature on legal aid in the 1960s and 1970s often written by people who had been legal aid attorneys or administrators who were still practising, and most of them were men.
Using a gendered lens of analysis, I began to see how history had repeated itself.The 1950s was a time of enormous conservatism in the U.S. and a new emphasis on domesticity pushed women back into the home. Social work, which previously emphasised a somewhat progressive agenda of reform, now focused on individual mental disorders and a person’s inability to conform to society. Likewise, elite members of the bar reasserted their control over legal aid demonising social workers as monsters who had no role in providing legal aid.[976] Private philanthropies which had previously been sympathetic to social workers in legal aid were restructured to emphasise law and medicine, and the women who worked in these organÂisations and had supported social workers essentially disappeared.[977] Social workers were thus to a large extent driven out of legal aid organisations. Likewise, a generation of women attorneys who had spent their entire careers in legal aid retired. Some of these were women who began practising when women’s legal aid organisations still existed and who had long fought for the use of social workers in legal aid. In essence, a rich, long-lasting, and diverse world of legal aid had ended.[978]