The Standard Narratives and Assumptions about Legal Aid in the U.S.

The last thing that I intended to do was write another book about the his­tory of legal aid in the U.S.^[888] Unlike in other countries, there was no surfeit of writings about legal aid in the U.S.

¹Batlan (2015).

civil (non-criminal cases) to poor clients. The private bar gladly funded such organisations as part of their professional duty and understood that the rule of law required that the poor have access to attorneys. It was law­yers’ special duty as leaders of society to organise and support such organ­isations. Although legal aid societies and their lawyers valiantly struggled to provide such services, they simply could not meet the demand. By the late 1960s, a new group of lawyers motivated by the Civil Rights Movement and the New Left, came to understand that legal aid societies were too staid and failed to alleviate the structural issues that created poverty. With new funding from the federal government, along with that from large philanthropic foundations, lawyers heroically opened new organisations and restructured old legal aid societies to grapple with poverty and to reach underserved, often minority, populations. It was this moment in the late 1960s and 1970s that was the true heyday of legal aid.^[889]

In virtually all these narratives, lawyers were the primary actors and it was widely assumed that most of these lawyers were male as were such societies’ clients. Occasionally, in the later period, a female lawyer might be mentioned but often as the exception intended to point to how poor the pay was and to the downfall of legal aid.

Yet, before beginning my story of the writing of my book, Women and Justice for the Poor: A History of Legal Aid, 1863-1945, which created a new narrative of legal aid with women at its centre, it is crucial to empha­sise a number of points. Unlike countries such as Belgium, Germany, Finland, and France, in the U.S., federal and state governments played a minimal role in the creation or funding of legal aid until the late 1960s.^[892] Even today, a great deal of legal assistance is provided at the local level funded by various private foundations and individual contributions.

Moreover, in the U.S., there is no right to free legal aid in most civil mat­ters.^[893] Likewise, the term legal aid or legal assistance to the poor has a widespread understanding in the U.S. in that it entails the provision of legal assistance to a client.

Legal aid in the first decades of the twentieth century may have blos­somed in the U.S. in a particular configuration because of the lack of powerful labour unions in the U.S., the absence of a particularly strong central administrative state, and the separation between church and state. Without these, poor people had to turn to private lawyers to effectuate basic rights such as the payment of wages.^[894]

In this chapter, I tell the story of how I slowly came to an understand­ing that the traditional narrative of legal aid in the U.S. needed to be revised and how I surprisingly realised that women played a key role in the creation and then the provision of civil legal aid in the U.S. Women and Justice for the Poor argues that women and women’s organisations had a long history of providing legal aid to the poor. Likewise, it was poor women who were the clients of such organisations. This history of wom­en’s work and activism was very intentionally repressed in the 1920s by male lawyers in order for legal aid to appear as the brainchild of gallant attorneys intended to meet the needs of male clients. In writing this new history, I began to question what it meant to provide legal aid, who received legal aid, what types of cases and potential clients were eligible to receive legal aid, and even what constituted the practice of law. Each of these questions would turn out to implicate questions of gender and power.^[895]