1. We recognize, of course, that the poor themselves are often moved by their economic and social situation to engage in illegal practices.

2. See D. Caplovitz, The Poor Pay More 142–45 (1963). Also note the following:

In this “captive” [consumer] market, unethical practices flourish: “bait advertising,” “switch sales,” reconditioned goods sold as new, tie-in “contest” prizes. Exchanges are virtually unknown; the buyer is “stuck” with his bad bargain.

P. Wald, Law and Poverty 1965 24 (1965). For a description of various techniques used to disguise price in the automobile market, see Why Auto Dealers Don't Like Cash Buyers, 30 Consumer Reports 258–61 (1965). Although the poor are not the only ones subject to such abuses, they appear to be most vulnerable to the deceptions involved.

3. Consumer Reports notes that “In the present market, the rate of credit charges is usually concealed and, even when it is revealed, comparisons are difficult because the rates are stated in too many different ways.” See Interest Rates, 29 Consumer Reports 504–05 (1964). A recent study of a sophisticated group of middle class consumers (subscribers to Consumer Reports) showed that few (18%) knew either the true annual rate of interest they were paying or the percentage of principal they paid as interest. Those who knew the true rate of interest paid least for credit; the totally ignorant group paid most. See Id. at 505. It seems reasonable to assume that poor subjects would have tended to fall in the latter group, among those totally ignorant of the cost of credit.

4. Patricia Wald notes:

The collections necessary to stay in business are achieved by a variety of coercive devices. Garnishment threats are effective. What is at stake often is the purchaser's job. Employers, particularly in low-skilled, high-turnover employment, are loathe to bother with wage attachments; firing is easier. Creditors threaten to report purchasers to the welfare authorities; relief recipients are not supposed to buy on credit. The original sales contract is often sold to a finance company or collection agent against whom the buyer can raise no equitable defenses.

See P. Wald, op. cit. supra note 2. See also Note, Project: Legislative Regulation of Retail Installment Financing, 7 U.C.L.A. L. Rev. 741–42 (1960); D. Caplovitz, op. cit. supra note 2, 189–90, for discussion of illegal collection practices on the part of law enforcement officials themselves.

5. P. Wald, op. cit. supra note 2, at 14.

6. Caplovitz observes that “when the low-income consumer fails to live up to his obligations of payment, the merchant is able to utilize the law to protect his rights. When the merchant fails to respect a guarantee, however, the consumer is more likely to lose his initial investment than to obtain justice.” D. Caplovitz, op. cit. supra note 2, at 151.

7. L. Fuller, American Legal Realism, 82 U. Pa. L. Rev. 438–42 (1934).

8. See Note, Enforcement of Municipal Housing Codes, 79 Harv. L. Rev. 801 (1965); J. Levi, “The Legal Needs of the Poor: Problems Relating to Real Property,” paper read at the National Conference on Law and Poverty, Washington, D.C., June 23–25, 1965.

9. See The Governor's Commission on the Los Angeles Riots, Violence in the City — an End or a Beginning (1965).

10. See, e.g., P. Hauser & M. Wirth, Relocation — Opportunity or Liability? in Poverty in America 360 (M. Gordon ed. 1965); Note, Protecting the Standing of Renewal Site Families to seek Review of Community Relocation Planning, 73 Yale L.J. 1080 (1964); E. Richey, Tenant Oppression: Our Smoldering Housing Scandal, 24 The Antioch Rev. 337 (1964); H. Gans, The Urban Villagers 281–335 (1962).

11. See E. Sparer, The New Public Law: The Relation of Indigents to State Administration in The Extension of Legal Services to the Poor 23–40 (U.S. Dept. of HEW 1964).

12. An indication of the range of questionable grounds may be seen in P. Wald, op. cit. supra note 2, at 30–32.

13. See C. Reich, Midnight Welfare Searches and the Social Security Act, 72 Yale L.J. 1346 (1963); C. Reich, The New Property, 73 Yale L.J. 733 (1964); C. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245 (1965); E. Sparer, The Role of the Welfare Client's Lawyer, 12 U.C.L.A. L. Rev. 361 (1965); Brief for Appellants, Parrish v. Civil Service Comm'n.

14. As the term law is used here, it refers to the common law, statutes, rules, and decisions laid down by legislative, administrative and judicial bodies, and informal agreements that are binding on decision-makers. We recognize that law is often made in the process of its administration. Consequently there can be no hard and fast line between studies of the law itself and studies of its administration.

15. F. Engels, The Origin of the Family, Private Property and the State (1942); K. Renner, The Institutions of Private Law and Their Social Functions (O. Kahn-Freund ed. 1949).

16. We recognize that poor persons do occasionally assume the roles of landlord and lender; they may, for example, lend money to friends or rent out rooms as a means of supplementing their income.

17. The particular problems of poor tenants and borrowers are the result of a combination of favored party and de facto bias. Their disadvantaged position rests in part on the favored party bias of the law; it is accentuated by their generally insecure and vulnerable situation. As borrowers, for example, the poor are more likely to have a large proportion of their income tied up in debt payments than the wealthy, and they are less likely to have any savings. (G. Katona, Survey of Consumer Finances 43, 53–54 [1962]; D. Caplovitz, op. cit. supra note 2, at 111.) The fact that they are such bad risks means that the poor are especially vulnerable to exploitative credit practices. Consequently, they are most likely to be disadvantaged by ineffective usury laws.

18. See J. Levi, supra note 8, at 1; N. LeBlanc, “Why Tenants Need Lawyers,” paper presented at the Conference on the Extension of Legal Services to the Poor, Washington, D.C., Nov. 12, 1964, 11–12; E. Richey, supra note 10, at 341–42; Note, supra note 8, at 844, 845, where it is observed that “most suggested changes in landlord-tenant law are variations of one basic theme, suspension of the duty of the tenant to pay the rent when uncorrected housing code violations exist”; J. Fossum, Rent Withholding, 53 Calif. L. Rev. 304, 313 (1965). See also Fossum's general discussion of “the inadequacy to the slum tenant of personal rights of action.” Id. at 310–14. He notes that “the common law armed the tenant with little that would insure him that his dwelling would be kept in a comfortable or even habitable condition.” Id. at 310.

It is, of course, also true that in the absence of a covenant to repair, the landlord owes his tenant no duty of maintenance. According to Fossum this rule has become so firmly entrenched in the law that it is improbable that it will be altered without legislative intervention. He suggests that viewing the situation realistically, the burden for making major repairs and improvements ought to be upon the lessor because he is in the better financial position and has the greater financial interest in maintaining the quality of the dwelling. Id. at 311.

19. In some jurisdictions there are statutes which permit rent to be withheld as a means of forcing the landlord to make repairs and provide essential services. But these statutes are generally inadequate. In New York, for example, Section 755 of the Real Property Actions and Proceedings Law permits the tenant to pay his rent to the court until violations of the code are corrected. However, it has been argued that “although Section 755 is a powerful defense, . . . it does not actually provide substantial relief to the tenants since during the time that the violations continue the tenants are still required to pay the full rent, even though they are not receiving a full consideration or return for their rent.” N. LeBlanc, supra note 18, at 9–11. See J. Levi, supra note 18, at 9; J. Fossum, supra note 18, at 324–27; Note, supra note 8, at 845–46. Whether the 1965 amendment to the Section will appreciably increase its effectiveness remains to be seen. For a statement of the new law, see N.Y. Real Property Actions and Proceedings § 755. A few states have enacted “repair and deduct” laws which generally provide that if the landlord fails to make certain repairs upon demand the tenant may make them himself and deduct the cost from the rent or vacate without further liability. See J. Fossum, supra note 18, at 312. In two states (California and Montana) the charge against the landlord cannot exceed one month's rent, which is often not enough to cover the cost of repairs. Furthermore, the landlord can contract away the obligations imposed by such statutes, and, thus, he can shift his duty of repair onto the tenant. Ibid.

It should also be noted that departments of welfare have withheld rent as a weapon against slum landlords. This type of rent withholding began in Chicago in 1961 and spread to New York State where it was introduced via state law in 1962. See Withholding Rent: New Weapon Added to Arsenal for War on Slumlords, 21 J. of Housing 67–72 (1964); Note, supra note 8, at 842–43; J. Fosum, supra note 18, at 327–31.

20. In 1961 Cook County, Ill., welfare officials estimated that of the approximately 5.2 million dollars paid out each month for relief rental allowances, one million went for substandard housing. J. of Housing, supra note 19, at 67. And in 1964 in New York City Welfare Commissioner Dumpson estimated that of the 78 million dollars paid out annually for welfare rents, 33 million was paid for substandard housing. Id. at 69. See also Richey, op. cit, supra note 10; J. Fossum, supra note 18.

21. Id. at 313. The doctrine of implied warranty has also been used to protect the tenant. In Pines v. Perssion, 14 Wis. 2d 509, 111 N.W. 2d 409 (1961), the tenant was allowed to vacate the premises and recover the rent deposited less a reasonable amount for the period of actual occupance. The landmark case here is Ingalls v. Hobbs, 156 Mass. 348, 31 N.E. 286 (1892), where the court held, with respect to the lease of a completely furnished house for a single season, that there is an implied warranty that the house is fit for immediate habitation.

Although the doctrine of implied warranty has generally been applied only to short-term leases of furnished premises, it has been extended to include unfurnished apartments in multiple units. See Recent Decisions, Landlord and Tenant — Application of Implied Warranty, 45 Marq. L. Rev. 630–33 (1962); P. Blawie, Implied Warranty of Fitness for Habitation of Furnished Premises for a Short Period of Time, 33 Conn. B. J. 55–61 (1959).

22. J. Fossum, supra note 18, at 314. See Note, supra note 8, at 844.

23. See N. LeBlanc, supra note 18, at 11–12; Brief for Tenant-Appellant, Kuperberg v. Cruz, New York Supreme Court, Appellate Term — First Department (Mimeographed). Two major points are made in this brief: (1) “Where grounds for constructive eviction exist but where because of an extreme housing shortage the tenant is unable to abandon the premises, traditional common law rules of constructive eviction without abandonment should be modified to permit the remedy of constructive eviction” and (2) “The failure of a landlord of a multiple dwelling to provide essential services and facilities to a tenant as required by law constitutes a partial failure of consideration which should entitle a tenant to pay only a pro rata part of the rent.”

Kuperberg v. Cruz was decided against the tenant-defendant Cruz at the trial level. On appeal to the Appellate Term it was again decided against Cruz, with no opinion being rendered by the Court. The lawyers for Cruz then requested leave to appeal to the Appellate Division. This request was denied by the Appellate Term without opinion.

In April, 1965, when we were last in correspondence with Nancy LeBlanc, who argued the case before the Appellate Term, she commented “except for the advancement of the argument, we have made no change in the law of landlord-tenant re ‘failure of consideration.‘ ” Personal communication from Nancy E. LeBlanc, Associate Director, Legal Services Unit, Mobilization for Youth, Inc., April 12, 1965.

24. J. Levi, supra note 18, at 3, 5. On the matter of income tax law and slums, see A. Sporn, Some Contributions of the Income Tax Law to the Growth and Prevalence of Slums, 59 Colum. L. Rev. 1026 (1959), in which he considers those aspects of our income tax policy which seem to him to have a propensity to generate and maintain slums. See also the critique of Sporn in W. Blum & A. Dunham, Income Tax Law and Slums: Some Further Reflections, 60 Colum. L. Rev. 447–53 (1960); and Sporn's rejoinder, A. Sporn, Slums and the Income Tax - A Brief Rejoinder, 60 Colum. L. Rev. 454–57 (1960).

25. See N. LeBlanc, supra note 18, at 10–11.

26. On the lax enforcement of housing codes in slum areas, see E. Richey, supra note “ 10, at 340, 341, 345. Tenants who report code violations to public officials may be evicted.

In Chicago those who had suffered such reprisal appealed to the Illinois legislature which then passed a law making such eviction illegal, Id. at 349–50.

27. See N. LeBlanc, supra note 18, at 10–11.

28. R. Cloward & R. Elman, Poverty, Injustice and the Welfare State: How Rights can Be Secured, 202 The Nation 264 (March 7, 1966).

29. E. Sparer, supra note 11, at 35–36. See also Sparer's discussion of bias in housing authority rules of procedure. Id. at 36–37, and C. Reich, Individual Rights, supra note 13, at 1250.

The practice of drawing leases on a month to month basis is recommended by the Federal Housing and Home Agency to permit “any necessary evictions to be accomplished with a minimum of delay and expense on the giving of a statutory notice to quit without stating the reason for such notice.” See E. Sparer, supra note 11, at 35–36. Sparer questions the legality of a housing manager's quiet refusal to state reasons for terminating a tenancy, because where housing authorities choose to assert an arbitrary reason, it has been held that they have exceeded their legal power. Id. at 36.

30. G. Brunn, Legal Aspects of the Rights of Creditors and Debtors, p. 8; paper presented at a Seminar on Research Needs in Consumer Economics, Sept. 11, 1964, Univ. of Calif., Berkeley.

31. See C. Neal, The Known and Unknown in Consumer Credit, p. 8; ibid., paper presented at a Seminar on Research Needs in Consumer Economics, Sept. 11, 1964, Univ. of Calif., Berkeley.

32. See W. Mors, Small Loan Laws 1–2 Cleveland, Bureau of Business Research, Western Reserve Univ., 1961, Educational Pamphlet No. 2, where it is observed that usury laws neither prohibit lending nor protect consumers.

33. See Brunn, supra note 30, at 2. The California Constitution sets maximum interest rates at 10 per cent, but various financial and lending institutions such as building and loan associations, credit unions, pawn brokers and personal property brokers are exempt. The legislature is given the power to control and fix the rate of interest these exempt groups may charge. Calif. Const, art. 20, § 22.

34. See C. Neal, supra note 31, at 9.

35. See B. Curran (American Bar Foundation), Trends in Consumer Credit Legislation 13 (1965). The court does not always accept this interpretation. For example, in a series of cases from 1952 to 1957, the Arkansas Supreme Court decided that finance charges made in connection with sale of goods could be attacked for usury if the return exceeded maximum contract charges permitted for loan of money. Thus in this jurisdiction finance charges for the extension of credit by a seller are considered interest, and the customary distinction between lender and vendor credit disappears by judicial fiat. Id. at 2, ch IV.

36. Under the California Retail Installment Sales Act which covers all retail installment sales except automobiles, the creditor is no longer allowed the two remedies. Cal. Civil Code § 1801 et. seq. He must elect either to sue for the balance due without repossessing the goods or to repossess the goods. He cannot do both. However, under the Automobile Sales Act which covers sales of automobiles, the creditor can still invoke the double remedy.

37. One way of viewing this particular form of bias is to argue that certain roles like welfare recipient are only played by the poor and that discriminatory laws are applied to them. Another approach, and the one we follow here, is to argue that certain roles are similar or the same for rich and poor, e.g., spouse, father, recipient of government funds, school child, but that different laws are applied to them in these roles.

This approach then, differs from that adopted in our discussion of favored party bias where we stress the different roles played by rich and poor, and de facto bias where we emphasize the different capacities of rich and poor to realize benefits the law presumably provides for all classes. Here we contend that the law is biased to the extent that different laws are applied to those who are presumed to be equals; to the extent it can be shown that they should not be treated as equals, the dual law criticism loses its force. See, in this regard, T. Lewis & R. Levy, “Family Law and Welfare Policies — The Case for ‘Dual System’ ” (paper presented for the Conference on the Law of the Poor, U. of Calif., Berkeley, Feb. 17–19, 1966).

38. See J. tenBroek, California's Dual System of Family Law: Its Origin, Development, and Present Status, 16 Stan. L. Rev. pt. 1 at 257–58 (1964).

39. J. tenBroek, California's Dual System of Family Law: Its Origin, Development, and Present Status, 17 Stan. L. Rev. pt. 3 at 614 (1965).

40. J. tenBroek, supra note 38, at 257–313; J. tenBroek, California's Dual System of Family Law: Its Origin, Development, and Present Status, 16 Stan. L. Rev. pt. 2 at 900–81 (1964).

41. Ibid.

42. J. tenBroek, supra note 38, pt. 1 at 258.

43. C. Reich, Individual Rights, supra note 13, at 1245. See also Reich, The New Property, op. cit., supra note 13, at 785, where he says that “the concept of right is most urgently needed with respect to benefits like unemployment compensation, public assistance, and old age insurance.”

Elizabeth Wickenden argues that the very heart of the poverty problem in the United States in one of entitlement under law. “In the relationship of individuals to the society in which they live, dignity, freedom, and security rest upon a maximum range of objectively defined rights and entitlements,” E. Wickenden, The Indigent and Welfare Administration, The Extension of Legal Services to the Poor 41, 46 (U.S. Dept. of HEW, 1964). See E. Wickenden, Administration of Welfare Rights, pp. 5–9, paper prepared for National Conference on Law and Poverty, Washington, D.C., June 24, 1965.

Welfare law tends to place broad, unrestrained power in the hands of administrators because certain provisions of the law are vague, and because administrative regulations are often overly detailed and therefore difficult it not impossible to apply. One reason for the vagueness of welfare law is that it is rarely put to the test of judicial or administrative review; as a result “rights that might have been developed out of existing welfare statutes have atrophied from disuse.” (Reich, Individual Rights and Social Welfare, supra, p. 1256).

44. Of the total number of families in the United States in 1963, approximately 10 per cent were non-white; of families in poverty (those with incomes under $3,000) about 25 per cent were non-white. Further, 43 per cent of non-white families were defined as poor in 1963, compared to 16 per cent of white families. See H. Miller, Changes in the Number and Composition of the Poor, in Poverty in America 86–87 (M. Gordon ed. 1965). See also K. Davis, Some Demographic Aspects of Poverty in the United States, in id. at 310.

A very high proportion of welfare recipients are non-white. In New York City, for example, Welfare Commissioner Dumpson estimates that Negroes and Puerto Ricans constitute 75 per cent of the recipients. See City Fights Holding Action on Poverty, N.Y. Times, Nov. 15, 1964, p. 84.

45. It should be noted that Brown v. Board of Education, 347 U.S. 483 (1954); 349 U.S. 294 (1955), which authorized integration of public schools “with all deliberate speed” has had little overall impact on segregation in the deep South. At the present time only 1 out of 13 Negro pupils in that region attends school with whites. See San Francisco Chronicle, February 16, 1966, p. 8.

46. Title VI of the Civil Rights Act of 1964 specifies that no person shall be subjected to racial discrimination under any program or activity receiving federal financial assistance; and the Department of Health, Education, and Welfare has begun to implement this act with respect to federal aid to education. Whether the Civil Rights Act provision will appreciably expedite integration of public schools in the South remains to be seen.

47. The landmark case here is In Re Girard College Trusteeship, 391 Pa. 434 (1958), cert. denied 357 U.S. 570 (1958). The Board of Trustees which operated Girard College was an agency of the State of Pennsylvania. For it to enforce the whites-only discriminatory clause of the Girard trust was ruled a violation of the 14th Amendment. So the public trustees were replaced by private (non-State) trustees, and they then enforced the discriminatory provision of the will. The general rule of trust law which was applied was that if the trust is affected by the character or disability of the trustee, then he will be replaced and the trust saved. A trust will not fail because of the disability of the trustee.

More recently the Supreme Court of the United States barred the City of Macon, Georgia, from withdrawing as trustees of a park to allow the park to operate as a “private” facility and to discriminate against Negroes. Whether this posture of the court will eventually affect discrimination in private schools remains to be seen. See N.Y. Times, Jan. 18, 1966, p. 1.

Parenthetically, it should be noted that there is legal precedent for private schools to ignore the discriminatory clauses in their trusts. In Rice University v. Carr (1964), an action was brought by Rice University in a Texas court against the Attorney General of the state, seeking a judgment authorizing the University to depart from restrictions in the original trust and charter which prohibited it from admitting Negro students. A jury made special findings of fact to the effect that the wishes of the founder to create a first-class educational institution could not be realized if racial restrictions were adhered to and enforced. Final judgment was entered authorizing the University to admit qualified students without regard to color or race. 9 Race Rel. L. Rep. 613, Spring 1964.

48. We are using the concept “legal discrimination” to mean discrimination which has not been declared illegal, even if cases are pending.

49. For a ruling to the effect that hospitals cannot discriminate if they are receiving federal funds, see Simkins v. Moses H. Cone Memorial Hosp. 323 F.2d 1959 (4th Cir. 1963).

50. The federal government has for some time prohibited discrimination in federal employment and in employment on federal contracts. The 1964 Civil Rights Act, 78 Stat. 253, 42 U.S.C. §2000e (b) (1964), prohibits discrimination in industries affecting commerce providing they have 25 or more employees. Actually, the first year after the effective date of the act industries having fewer than 100 employees are exempt; the second year those with fewer than 75 are exempt; but eventually the figure “25” will be relevant.

51. California's attempt to limit discrimination in private housing was overruled by public referendum in 1964. The [legality of the] referendum measure (Proposition 14, an amendment to the California Constitution) is being reviewed by the courts.

52. See D. King, Housing: The Right to Occupancy Without Discrimination in Legal Aspects of the Civil Rights Movement 133 (D. King & C. Quick eds. 1965).

53. According to King, “The Supreme Court has yet to pass upon the effect of many of these aspects of less direct [governmental] participation in, or assistance to, housing and their relation to discrimination.” Id. at 134. However, in 1950 the court denied certiorari in the Dorsey case, a decision which in effect sanctioned Metropolitan Life Insurance Company's discrimination against Negroes in a large low-rent housing project constructed under New York State redevelopment law. The company received considerable aid from the state and city by means of special tax exemption; it was given land condemned through the state power of eminent domain; and the city maintained a degree of control over rent, profits, financing and altering of the structure. When the company refused to rent to Negroes an action was brought against it in the New York courts alleging “state action.” The New York Supreme Court rejected the contention of state action, and the U.S. Supreme Court denied certiorari. Ibid.

“Because the United States Supreme Court since that time has handed down major decisions against discriminatory activity and has expanded the state-action concept, there is some question as to how the Dorsey case would be handled today. Nevertheless, with the uncertain status of the law concerning the equal-protection clause, the Fourteenth Amendment standing alone does not afford adequate protection.” Ibid.

54. E. Ehrlich, Fundamental Principles of the Sociology of Law 238 (1936).

55. According to Richard Lichtman, “Insofar as those human acts which the Constitution regards as rights are concerned the substantive end of justice is the creation of that situation most conducive to the equal self-realization of all the members of the community.” He notes further that justice requires “the equal enjoyment of all institutions, privileges, advantages and conveniences created or regulated by law.” R. Lichtman, The Ethics of Compensatory Justice, 1 Law in Trans. Q. 76, 79, 85–86 (1964).

56. For some observations on de facto bias in procedural law as of the 1940's, see G. Olshausen, Rich and Poor in Civil Procedure, 11 Science and Society 9 (1947). He considers certain provisional remedies (the temporary injunction, attachment, unlawful detainer and claim and delivery) and concludes that as a practical matter they are granted to the rich and denied to the poor. For example, the granting of a preliminary injunction is ordinarily conditioned upon the posting of a bond, and this tips the balance in favor of the litigant with means.

57. Until recently there were no grounds for divorce in New York except adultery. However, marriage could also be terminated through annulment proceedings and through an “Enoch Arden” decree which could be granted upon proof that one of the spouses had been absent for five years and was presumed dead. See H. O'Gorman, Lawyers and Matrimonial Cases: A Study of Informal Pressures in Private Professional Practice 11–13 (1963).

58. Id. at 22–23. See also Id. at 28 where it is reported that one of five lawyer informants objected to the New York divorce law because it discriminated against the poor.

59. Id. at 23. See also R. Wels, New York: The Poor Man's Reno, 35 Cornell L.Q. 303–26 (1950).

60. A divorce can be granted in the state of domicile of either spouse, and full faith and credit requires that a legal divorce be recognized in all other states. However, another state can itself determine whether the spouse obtaining the decree was in fact domiciled in the state of divorce and refuse to recognize the divorce absent the requirement of domicile. See William v. North Carolina, 317 U.S. 387 (1942); 325 U.S. 226 (1945).

61. Wels maintains that a sense of the need for equality is one factor behind New York's permissive attitude toward fraudulent divorces. “If anything is basic in our nation and in our society, it is the concept that before the law all men are created equal, that all citizens shall receive equal treatment in our courts regardless of pocketbook or credit rating. It is, perhaps, a judicial awareness of the ease with which quick solutions to marital complexities are available to those able to pay for them, and a judicial sense of fairness, that has caused our judges to turn New York into a poor man's Reno for all with sufficiently elastic consciences. R. Wels, supra note 59, at 315. Since this article was written New York has made its divorce laws more permissive by adding new grounds. This will undoubtedly make it more possible for the poor to obtain divorces.

62. See D. Caplovitz, op. cit. supra note 2, at 188. Note, Project: Legislative Regulation of Retail Installment Financing, 7 U.C.L.A. L. Rev. 618, 750 (1960), observes that:

A review of the California cases will quickly indicate that the retail buyer, knowing his rights and able to afford the cost of litigation, was adequately protected by the common law. Clearly, this statement does not refer to the low-income buyer.

63. George Brunn believes that seller-buyer inequality has accelerated over the past century. With improvements in technology and the increasing complexity of credit practices, it is more difficult for the buyer to know what he is getting and on what terms. See Brunn, supra note 30, at 3–4; D. Hamilton, The Consumer in Our Society 331–34 (1962).

See also M. Brady, “The Consumer Speaks to the Research Experts,” (paper presented at a Seminar on Research Needs in Consumer Economics, University of California, September 10, 1964). She observes that “the multiplication of the privileges of venders and lenders, their increasing resort to the power of the state, and their growing demands for public subsidy are taking place at a time when technology has robbed the market place of its equalizer — the rational choice of informed consumers.” Id. at 14 (emphasis added).

64. For a discussion of bias in the draft law see D. Graham, J. Goodman and K. R. Johnson, Draft Inequalities and Alternatives, Atlantic Monthly 217 (February, 1966), 59–69. The statement regarding conscientious objector status is based on our field notes.

65. See tenBroek's discussion of Yick Wo v. Hopkins, 118 U.S. 356 (1886). He argues that the public had proceeded “with an evil eye and an unequal hand” because the real purpose of a San Francisco ordinance distinguishing between laundries in wooden buildings and those in brick and stone buildings was to drive the Chinese out of business. J. tenBroek, Equal Under Law 21–22 (enlarged ed. 1965).

66. Kaplan suggests that the Fourteenth Amendment cannot be enforced against private acts, but only against state action, (see J. Kaplan, Segregation Litigation and the Schools - Part II: The General Northern Problem, 58 Nw. U. L. Rev. 170, 212 [1963]. Thus, the above reference to state action. For a counter-view, see L. Frantz, Congressional Power to Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L.J. 1353 (1964). According to Frantz, “The theory that congressional power to enforce the Fourteenth Amendment can deal only with ‘state action’ will not stand up. It is obviously at odds with the original understanding. Even if we are not certain precisely what the original understanding was, we know that it could not have been this.” Id. at 1381–82.

According to Robert Harris the majority of the members of the Thirty-ninth, Forty-second, and Forty-third Congresses believed that the equal protection clause did more than condemn official or state action. “They believed that it vested Congress at the very least with a primary power to set aside unequal state laws and a secondary power to afford protection to all persons in their enjoyment of constitutional rights when the states failed in their primary responsibility to do so either by neglecting to enact laws or by refusal or impotence to enforce them.” Id. at 1381 n. 118.

67. See R. Lichtman, supra note 55, at 83.

For a counter-view, see Justice Harlan's dissent in Douglas v. California, 372 U.S. 353, 361, 362 (1962), where he observes:

The States, of course, are prohibited by the Equal Protection Clause from discriminating between “rich” and “poor” as such in the formulation and application of their laws. But it is a far different thing to suggest that this provision prevents the State from adopting a law of general applicability that may affect the poor more harshly than it does the rich, or, on the other hand, from making some effort to redress economic imbalances while not eliminating them entirely. . . . (p. 361).

The State may have a moral obligation to eliminate the evils of poverty, but it is not required by the Equal Protection Clause to give to some whatever others can afford. (p. 362).

In Harlan's words the clause does not impose on the States an “affirmative duty to lift the handicaps flowing from differences in economic circumstances.” Ibid. See also Justice Clark's dissent in the Douglas case, where he observes that “With this new fetish for indigency the court piles an intolerable burden on the State's judicial machinery.” Id. at 359.

68. See White v. Maryland, 373 U.S. 59 (1963); Gideon v. Wainwright, 372 U.S. 335 (1963); Douglas v. California, 372 U.S. 353 (1963).

69. See J. tenBroek, op. cit. supra note 65, at 22–23. It is often difficult to determine the real purpose of biased laws because legislators themselves may believe their own rationalizations.

70. In considering the relevance of law for solving the consumer problems of the poor, Caplovitz addresses himself to a similar question:

In the final analysis, the consumer problems of low-income families cannot be divorced from the other problems facing them. Until society can find ways of raising their educational level, improving their occupational opportunities, increasing their income, and reducing the discrimination against them — in short, until poverty itself is eradicated — only limited solutions to their problems as consumers can be found.

D. Caplovitz, op. cit. supra note 62, at 191–92.

71. 347 U.S. 483 (1954); 349 U.S. 294 (1955).

72. See, e.g., Lichtman's statement that “children are denied equal protection of the law by the fact that they are segregated.” He maintains that the intention behind the drawing of boundary lines is irrelevant. R. Lichtman, supra note 55, at 92. For a discussion of the contention that a constitutional violation is inherent in de facto segregation, see J. Kaplan supra note 66, at 211–14. For some further views, see A. Bickel, in Discrimination and the Law 60–63, 70–77 (V. Countryman, ed. 1965).

In 1965 The Commonwealth of Massachusetts adopted “An Act for the Elimination of Racial Imbalance in the Public Schools.” Mass. Ann. Laws ch. 71, § 37C (1965). This was the first state to enact legislation aimed at eliminating de facto segregation in schools. The Act states in part: “It is hereby declared to be the policy of the Commonwealth to encourage all school committees to adopt as educational objectives the promotion of racial balance and the correction of existing racial imbalance in the public schools. The prevention or elimination of racial imbalance shall be an objective in all decisions involving the drawing or altering of school attendance lines and the selection of new school sites.”

73. Lichtman says that the “injury” to the white employee is not punishment, but the removal from an unfair advantage to which he is not entitled. R. Lichtman, supra note 55, at 98, 99.

74. We recognize that mass demonstrations do not always result in positive gains for Negroes or other disadvantaged groups in our society. Collective protests may alienate segments of the public and lead, temporarily at least, to repressive legislation. Furthermore, there is some reason to believe that the favorable legislation which has directly followed certain civil rights demonstrations, e.g., the Voting Rights Bill which immediately followed the Selma protests, has been more a response to the violence of segregationists than to the collective expression of the Negro. See J. Howard, The Provocation of Violence: A Civil Rights Tactic?, 13 Dissent 94 (1966).

75. According to Fossum, the rent strike is more a symptom than an effective device for bringing a lasting solution to the problems of slum housing. However, such strikes can and do dramatically indicate the problem that exists, and depending on the statutory framework in the jurisdictions in which they take place, they may be given legal sanction. In New York City which provides a favorable statutory framework for rent strikes, a high proportion of cases arising out of these actions have been decided in favor of the tenants. Thus, Fossum argues: “Where the technique has been given a statutory basis it serves both as a reasonably satisfactory channel for protesting an intolerable situation and as a substitute for the normal methods of code enforcement.” J. Fossum, Rent Withholding, 53 Calif. L. Rev. 304, 323–25, 334–36 (1965).

76. Lawyers for the civil rights movement have consistently sought to file class suits for named plaintiffs suing to desegregate facilities “and for all others similarly situated,” i.e., for all other Negroes in the same community. But not all federal courts have recognized the validity of class actions on behalf of Negroes.

77. See, e.g., Cox v. Louisiana, 379 U.S. 536; U.S. 559 (1965); Hamm v. City of Rockhill, 379 U.S. 306 (1964); Bouie v. City of Columbia, 378 U.S. 347 (1964); Edwards v. South Carolina, 372 U.S. 229 (1962); Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965). In the latter case concerning the march from Selma to Montgomery, the court issued an injunction restraining Alabama officials from “intimidating, threatening, coercing or interfering with” the proposed march, and the defendants were also enjoined from failing to provide adequate police protection to the plaintiffs in the exercise of their constitutional rights.

78. See Justice Brennan's statement for the Court in NAACP v. Button, 371 U.S. 415, 431 (1962). He suggests that “association for litigation may be the most effective form of political association” open to the Negro people. See A. Ginger, Legal Processes: Litigation as a Form of Political Action, in D. King and C. Quick, op. cit. supra note 52, at 195.

79. See C. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L. J. 1245, 1255 (1965).

80. Id. at 1256.

81. Ibid.

82. The affirmative programs of certain human relations commissions also appear relevant. Thus, the New York City commission has attempted to motivate banks and lending institutions to re-evaluate their operation “with an eye towards extending their mortgage financing services to members of minority groups,” and it has attempted to motivate brokers, managers, and investors in housing to open all-white neighborhoods to minorities. J. Witherspoon, Civil Rights Policy in the Federal System: Proposals for a Better Use of the Administrative Process, 74 Yale L.J. 1171, 1209 (1965).

How effective those new programs will be in changing the relative economic position of the poor remains to be seen. Wilensky and Lebeaux observe that “the promise of the welfare state — minimum living standards brought about by government action to redistribute income and make opportunity equal — is nowhere fulfilled. . . . Up to the present in the United States . . . welfare programs have had small income-equalizing effect within the lower strata and a still smaller effect on the income distribution as a whole.” H. Wilensky & C. Lebeaux, Industrial Society and Social Welfare xii-xvi, 158–60 (1965).

83. In the view of Simmel and more recently Coser, poverty is a social category that emerges through societal definition: “The poor are men who have been so defined by society and have evoked particular reactions from it.” See L. Coser, The Sociology of Poverty, 13 Social Problems 141 (1965).

84. Although we are more concerned with the administration of civil than criminal justice, reference will be made to the handling of criminal or quasi-criminal cases in lower-level courts. This is done partly because we are interested in presenting a general picture of inferior tribunals and because the distinction between a civil and criminal proceeding is often not meaningful at this level of the judicial system. Thus, the psychopathic and juvenile courts, although not formally criminal in nature, in fact make decisions that result in involuntary loss of liberty. Moreover, other courts and agencies handling civil matters involving the poor frequently employ essentially criminal sanctions in support of their decisions and actions. This is a prominent feature of courts dealing with consumer credit and family support. (With respect to the use of criminal process in the collection of civil debts in Pennsylvania, see Report of the Attorney General in the Investigation of the Magisterial System 29 (Department of Justice of Pennsylvania 1965). We suspect, in fact, that there is a greater difference in the character of the proceeding between upper and lower-level courts than between civil and criminal proceedings within lower-level courts. Whether nominally civil or criminal, lower court proceedings appear to be essentially “administrative” in character.

85. M. Virtue, Survey of Metropolitan Courts 48 (1962).

86. J. Holbrook, A Survey of Metropolitan Trial Courts, Los Angeles Area 10, 14 (1956).

87. Although we know of no studies of the class background of litigants or parties in various civil tribunals, there is persuasive, albeit indirect evidence of the relation between court level and social class. Thus, the lower the level of the court in the judicial hierarchy: 1) the lower the jurisdictional amount of claims (which means the more likely it will be used by lower-class persons), 2) the less likely that parties will be represented by private counsel (reflecting in part the fewer economic resources of parties whose cases are processed through inferior tribunals, see Id. at ch. IV), 3) the more likely that lawyers who deal with the court will have a low-status clientele, see J. Carlin, Lawyers' Ethics (1966), and 4) the more likely that the court will be processing types of cases reflecting problems that have a higher incidence in the lower than the upper classes. Thus, it is among the poor that we find the highest rates of family dissolution through divorce, separation or desertion (see W. Goode, Family Disorganization, in Contemporary Social Problems 416–28, R. Merton & R. Nisbet eds. 1961); mental illness (see B. Berelson & G. Steiner, Human Behavior: An Inventory of Scientific Findings 639, 1964); juvenile delinquency (see A. Cohen & J. Short, Jr., Juvenile Delinquency, in R. Merton & R. Nisbet, op. cit. supra at 87–88) and drunkenness (see D. Pittman & C. W. Gordon, Revolving Door ch. 2, 1958). At any rate, these problems are most likely to come to the attention of public officials when they involve the poor.

The term “low-level” or “inferior” tribunal refers to local or state trial courts of limited or special jurisdiction (including the family, drunk, psychopathic, small claims and juvenile courts) as opposed to state trial courts of general jurisdiction and appellate courts. Court level is usually correlated with the salary and tenure of judges and their educational background and experience. See J. Carlin, supra at ch. 5. It is interesting to note that in California, which has a consolidated court system, assignments to those departments in the Superior Court that correspond to low-level courts in other states (such as juvenile or domestic relations) are generally designated as the least desirable by judges.

88. The largest increase in the number of filings between 1928 and 1954 was found in the small claims, domestic relations, juvenile, traffic and psychopathic courts. The smallest increase took place with respect to other civil cases; in fact, there was a 36% decline in the number of these cases filed in the Superior Court. See J. Holbrook, op. cit. supra note 86.

89. M. Virtue, op. cit, supra note 85; at 136. See also D. Peck, Court Organization and Procedures to Meet the Needs of Modern Society, 33 IND. L.J. 12 (Winter, 1958), pp. 182–197.

90. M. Virtue, op. cit. supra note 85, at 46.

91. Holbrook reports that the drunk court in Los Angeles processes between 200 and 250 cases a day. J. Holbrook, op. cit. supra note 86, at 317.

This is also clearly evident in the following account drawn from our field notes, of the processing of public drunkenness cases in the Municipal Court of San Francisco:

The bailiffs bring in the defendants from the jail in groups of about 20. The men stand in two lines behind a three-foot high horizontal bar which separates the defendants from the rest of the courtroom. After the defendants have filed into the court the judge repeats the following rubric: “You men are all charged with being publicly drunk. Do any of you plead not guilty?” (The judge pauses about five seconds to see if there are any “not guilty” pleas.) “All guilty. Answer to your name as it is called.” The men are arranged by the bailiff in the line in the order in which their name will be called for sentencing.

Domestic relations (principally family support) cases are usually disposed of in summary fashion under the ever present pressure for dispatch:

When one case was called there was no reply and the judge said, “Passed” immediately. The clerk began to explain something, but was interrupted angrily by the judge who said, “Passed, passed. Call the next one quickly.” In one third of all cases heard, a positive reference was made by the judge for a need to hurry.

Drawn from our field notes.

Mass processing is also a characteristic feature of juvenile and commitment proceedings and uncontested divorce actions. A judge in Santa Clara County summed up the situation in this way:

All one can think of any longer is getting through the mill; the court becomes a treadmill and not a forum for adjudication.

Drawn from our field notes.

92. See P. Selznick, Legal Institutions and Social Controls, 17 Vand. L. Rev. 79–90 (1963).

93. The County Court of Philadelphia, for example, in its 47th Annual Report, asserts that its domestic relations court is guided by:

the modern idea of a family court which has as its aim the coordination of the handling of all family problems in one agency, and the utilization of social skills and modern methods for the re-establishment and strengthening of families. . . . From the outset the work of the domestic relations division in the new court was concerned with the problem of integration of family life, rather than with the strictly legal issues as to whether the family ties should be severed . . . or whether the husband had a duty to support the family members.

County Court of Philadelphia, Forty-Seventh Annual Report 195–96 (1960).

A focus on “problem solving” is also evident in the philosophy of the Juvenile Court.

According to the Philadelphia report:

The welfare of the child is the guiding principle of operation in the Juvenile Division of the Municipal Court of Philadelphia. . . . The purpose of the Juvenile court law has been defined by the Supreme Court of Pennsylvania as being the “salvation of children” rather than the punishment of offenders (Commonwealth v. Fisher, 213 Pa. 48). It is the characteristics of the child and of his family more than the nature of his delinquent conduct which governs the dispositions of juvenile courts. Id. at 9, 10, 11.

94. See G. L. Schramm, Philosophy of the Juvenile Court, Annals 101 (1949). David Matza contends: “Individualized justice is the basic precept in the philosophy of the juvenile court. More generally, it is commended to all officials who deal with juveniles. We should, it is suggested by enlightened professionals, gear our official dispositions to suit the individual needs of the accused rather than respond in an automatic fashion to the offense he has allegedly committed. The relating of disposition to individual needs instead of to the offense is a central aspect of the treatment viewpoint.” D. Matza, Delinquency and Drift 111–12 (1964).

Maxine Virtue notes that a redefinition of goals was well underway by the twenties: The movement towards individualized justice raised questions concerning the role of the judge as an adjuster of personal relations and a rehabilitator of the socially disadvantaged as well as, or perhaps in place of, a decider of conflicts presented through the adversary process alone. . . . There was by that time (the late twenties) a developing trend to encourage benign and even therapeutic handling of juvenile cases, and to tolerate the beginnings of a trend towards development of specialized courts, such as family courts, staffed by judges with sympathy and special knowledge of such cases and by administrative aides with various skills for diagnosing and solving litigants' problems.

M. Virtue, op. cit. supra note 85, at 115.

95. It is perhaps no accident that the treatment orientation first appeared in the juvenile court, since the youthful character of its clientele made more justifiable the assumption of incompetence.

The striking parallel between the orientation of Soviet courts and our lower-level tribunals is explicitly noted by Harold J. Berman:

As the atmosphere of the Soviet criminal trial approximates that of our juvenile courts, so the atmosphere of a Soviet civil suit may perhaps bear an analogy to that of our domestic relations courts.

H. Berman, Justice in the U.S.S.R. 309 (1963). The author also notes that Soviet judges “play the part of a parent or guardian: Indeed the whole legal system is parental.” Id. at 754.

96. With respect to the juvenile court it has been observed: “The delinquent . . . is not (conceived as) the enemy of society. He is society's child, and therefore the interests of the state and the child do not conflict but coincide.” J. Handler, The Juvenile Court and the Adversary System: Problems of Function and Form, 1965 Wis. L. Rev. 10 (1965).

97. Note the following observation in connection with commitment proceedings:

In another case, the physician stated that he thought the patient was suspicious and distrustful because he asked about the possibility of being represented by counsel at the judicial hearing.

T. Scheff, Societal Reaction to Deviance, 11 Social Problems 409 (1964).

98. This orientation is clearly evident in the following comment of a family counsellor in a conciliation court:

Ideally, attorneys should not be in the court as they often inflame parties and produce tension and create the atmosphere of a court case involving one person against another, rather than the ideal atmosphere of a hearing which is in the interests of both parties.

Drawn from our field notes.

Further indication of the hostility of the court toward a formal adjudicative proceeding may be seen in the following observation:

On one occasion when he (the judge in a domestic relations department) granted the petition of wife's counsel that husband be restrained from removing the child from the state on a visit, this attorney said: “I would like to offer points and authorities, Your Honor.” “I don't want to hear any points and authorities,” was the judge's response, “I'm not interested in the mere legalistics of the matter.”

Ibid.

99. See, e.g., Cal. Welfare & Inst'ns Code § 19: “Due regard for the preservation of family life, and . . . to encourage self-respect, self-reliance, and the desire to be a good citizen, useful to society.” (Language omitted in 1965 amendment.) Cited in J. tenBroek, supra note 39, at 678. The very language of the Code, however, might well have been fashioned into tools of legal argument to restrain and limit official action, particularly insofar as such action tends to denigrate recipients and weaken their self-respect.

100. A study of commitment procedures in New York State reports:

Although Section 74 (most patients come to state mental hospital under this Section of the New York Mental Hygiene Law) contemplates notice to the patient and a hearing before the court order for the original admission, in practice . . . notice is usually not given and a hearing is held in only a minority of cases.

Assn. of the Bar of the City of New York, Mental Illness and Due Process 108 (1962).

101. Thus, in a report of a study conducted in Wisconsin it was noted:

In one urban court (the court with the largest number of cases) the only contact between the judge and the patient was in a preliminary hearing. This hearing was held with such lightning rapidity (1.6 minutes average) and followed such a standard and unvarying format that it was obvious that the judge made no attempt to use the hearing results in arriving at a decision.

He asked three questions uniformly: “How are you feeling?”, “How are you being treated?”, and “If the doctors recommend that you stay here a while, would you cooperate?” No matter how the patient responded, the judge immediately signified that the hearing was over, cutting off some of the patients in the middle of a sentence.

Thomas Scheff, Social Conditions for Rationality, 7 Am. Behav. Scien. 22 (1964). See also, Mental Illness and Due Process, op. cit. supra note 100, at 19.

102. In the Children's Court in New York City it has been observed:

It was left free to the individual judge to decide how much of the social history would be reviewed prior to the decision, but one study indicated that at least seventy-five per cent of the judges examined the histories prior to a determination of jurisdiction. There was little or no opportunity for respondents to challenge the information in these histories. In not one observed case was there an objection to any testimony. . . .

J. Handler, supra note 96, at 22–23.

103. In a study of Los Angeles courts it was noted with respect to commitment cases: “No attention is paid to the formal rules of evidence.” J. Holbrook, op. cit. supra note 86, at 244. With respect to the juvenile court it was noted:

Rules of evidence are not adhered to; the court desires to get all the facts without being bound by confining rules. . . . The language used is simple and geared to the child's understanding. For example, “It says here that you took a quart of oil from Mr. Brown. Is that true, John?”

Id. at 238.

104. Thus, Thomas Scheff observes:

The fact that courts seldom release patients, and the perfunctory manner in which the legal and medical procedures are carried out, suggest that the judicial decision to retain patients in the hospital for treatment is routine and largely based on the presumption of illness.

T. Scheff, supra note 97, at 411.

105. J. Handler, supra note 96, at 33.

106. C. Schinitsky, The Role of the Lawyer in Children's Court, 17 Record of N.Y.C.B.A. 10 (1962). It should be noted that the Family Court Act of 1963 may have increased the use of attorneys in juvenile cases.

107. J. Holbrook, op. cit. supra note 86, at 78.

108. Ibid.

109. Maxine Virtue notes that in mental and juvenile cases “members of court staffs actively discourage litigants from seeking counsel.” M. Virtue, op. cit. supra note 85, at 299.

110. J. Handler, supra note 96, at 22.

111. Judicial Council of California, 1962 Annual Report 151 (1963).

112. M. Virtue, op. cit. supra note 85, at 349.

113. Id. at 221, and J. Handler, supra note 96, at 26.

114. Id. at 30.

115. M. Virtue, op. cit. supra note 85, at 209. See also M. Virtue, Survey of Metropolitan Courts Detroit Area, 102, 103, 105 (1950); J. Handler, supra note 96, at 11; Holbrook op. cit. supra note 86, at 155.

116. Mental Illness and Due Process, op. cit. supra note 100, at 5, 194. See also J. Handler, supra note 96, at 17. In our interviews with judges the same picture appears:

In most [juvenile] cases, after all, the judge follows the recommendation of the probation officer. Actually we act as rubber stamps, and I don't know how it could be otherwise.

Interviewer: You mean you feel superfluous?

Judge: Yes, most of the time.

Drawn from our field notes.

117. Certificates (for involuntary commitment) are signed as a matter of course by staff physicians . . . after little or no examination. . . . The so-called examinations are made on an assembly line basis, often being, completed in two or three minutes, and never taking more than ten minutes. Although psychiatrists agree that it is practically impossible to determine a person's sanity on the basis of such a short and hurried interview, doctors . . . recommend confinement in 77% of the cases.

L. Kutner, The Illusion of Due Process in Commitment Proceedings, 57 Nw. U.L. Rev. 383 (1962). One reason for the perfunctory character of the medical examination is indicated by the following comment of a court-appointed psychiatrist: “It's not remunerative. I'm taking a hell of a cut. I can't spend 45 minutes with a patient. I don't have the time. It doesn't pay.” T. Scheff, supra note 101. With respect to juvenile cases, it has been noted:

The case load (of probation officers in the Los Angeles Juvenile Court) is so heavy at the present time (one probation officer to every eighty-five children) that the probation officer may see the child only once before the regular hearing.

J. Holbrook, op. cit. supra note 86, at 339.

118. It is said that these (probation) officers are even less interested than the judges in proving specific conduct; their attitude is to avoid “legal technicalities” which may slow or prevent the application of what they think is needed therapy . . .

The same type of objections apply, but more forcefully, to the regulatory practices of station adjustment or unofficial delinquency. There is no legal authority for this practice and there are no controls unless the adolescent or their parents have the temerity to challenge the officer. In view of the type of persons brought before the police, the power relationships, and even the threats to send adolescents to court if they do not comply, such challenges would be exceedingly unlikely.

J. Handler, supra note 96, at 18.

119. See Report to the Moreland Commission on Welfare of Findings of the Study of the Public Assistance Program and Operations of the State of New York 46, 49 (1962).

120. See, e.g., J. Witherspoon, supra note 82, at 1197. The author notes:

the commissions do not disclose the particular data which provide the basis for their determination of probable cause. Until the legal criteria underlying the concept of probable cause are expounded and the particular data to which they are applied made available and studied, it will not be possible to judge the correctness of commissions' determinations.

Id. at 1198.

121. Public Welfare in the State of New York, 68 (1963).

122. E. Sparer, The Role of the Welfare Client's Lawyer, 12 U.C.L.A. L. Rev. 361, 372 (1965).

123. I. Reichert, Jr. “A Report on Relationships Between Welfare and Law Enforcement Agencies in California” 52, unpublished report, 1962.

124. Id. at 34.

125. Report to the Moreland Commission, op. cit. supra note 119, at 3.

126. The following has been suggested as a possible explanation:

The simple fact is that the vast majority of us, in the comfortable prosperity of our affluent society, do not approve of the poor. . . . (We) have set up every kind of barrier to exclude or discourage the desperately poor from even (a minimal) level of aid : arbitrary definitions of eligibility related to age, family relationship (such as the absurd requirement in many states that there be no man in the home), employability, duration of residence in the state, and every sort of procedural hurdle and humiliation.

E. Wickenden, “Administration of Welfare Rights” 2–3, 4, paper presented at the National Conference on Law and Poverty, Washington, D.C., June, 1965.

127. According to a poll conducted by the Moreland Commission of people of voting age throughout New York State:

Virtually one-third of the New Yorkers questioned said that they believed 40 per cent or more of all relief recipients were chiseling “in one way or another.” Close to another one-third believed that chiseling ranged between 11 per cent and 39 per cent of those on relief rolls. These private and personal estimates were far beyond what even the most caustic critics of public welfare claimed in print or in open meetings. They were, of course, ill-informed guesses — far from the facts of the matter, or at least far from the best available estimates.

Report to the Moreland Commission, supra note 119, at 11.

128. Id. at 76.

129. C. Pragter, R. McCloskey & M. Reinis, The California Small Claims Court 40, 45, 55, student paper, University of California, 1963, subsequently published in condensed form in 52 Calif. L. Rev. 876 (1964).

130. Collection agents and professional men employ the Small Claims Court's facilities in increasing number. However, no serious objection has been raised to this tendency; in fact, two states . . . have deleted from their statutes a limitation on the number of claims which an individual may bring before the court during a particular week or month. This action would seem to encourage the use of small claims courts by repeating claimants as well as by the occasional litigant.

Id. at 29.

131. A recent study of the Magistrate's Court in Philadelphia documents this phenomenon:

When the unsworn testimony of the magistrates was taken, it was readily apparent that many of the magistrates did not know any of the legal requirements for service. Some even thought that civil summons could be mailed. Moreover, constables are required by law to file a return of service stating the precise manner in which service was made. This return is the only evidence available to the magistrate to enable him to decide whether he has jurisdiction over the person of the defendant. Nevertheless, in one court no returns of service are made. In other courts, where thousands of returns of service were examined by Justice Investigators, it was found that hundreds of returns were defective on their face, and in all those cases the magistrate had proceeded to give judgments by default.

In some cases judgments were entered even though the constable's return stated affirmatively that he had been unable to make service at all. When confronted with examples of improper service, the magistrates generally indicated that this is a matter for the constable to correct since the magistrates assume that the constable does his job properly. Such an assumption is not only factually unfounded, but amounts to an abrogation of the magistrates' fundamental duty. . . . Frequently a defendant's first knowledge of the claim is obtained when he receives a constable's notice of levy upon his household goods or when his neighbors read of the constable's sale notice in the newspaper.

Report of the Attorney General on the Investigation of the Magisterial System 30 (Department of Justice, Commonwealth of Pennsylvania, 1965).

Similar practices are reported with respect to the landlord-tenant court in New York City. See N. LeBlanc, Landlord-Tenant Problems, in The Extension of Legal Services to the Poor 52–53 (U.S. Dept. of HEW, 1964).

132. Report of the Attorney General, op. cit. supra note 131, at 31. The Report also notes: “Two court clerks, each of whom had served in separate courts for more than twenty years, advised Justice Investigators that they had never seen a verdict for the defendant in any civil case in their courts.” Id. at 26.

133. The Report notes:

Many constables own and operate their own registered collection agencies. Other constables simply advertise themselves as being in the collection business, while a third group of constables function as collection agents without forming a separate agency or openly advertising as such. . . . When money is obtained from a debtor, the constable collects not only a fee for serving process in the case, but also retains from 25 per cent to 50 per cent of the amount collected. . . .

As a result, constables are engaging in practices designed to terrify the average citizen and to make it clear to debtors that by reason of the constable's close association with the magistrate who will hear the case, any attempt to resist collection is futile.

Id. at 27.

134. “One magistrate conceded that his wife was half owner of a collection agency which obtained 25 per cent to 50 per cent of sums recovered. Without apparent concern, the magistrate admitted the fact that he had a personal pecuniary interest in cases where he sat in judgment when he said: ”. . . I handle all this business for one reason. If my wife makes money, I'm going to benefit by it because I have an opportunity to spend some of the money she makes, being the president of the company that employs the Constable who handles the work.' “ Id. at 28.

135. Id. at 29.

136. Section 202 of the Economic Opportunity Act of 1964 (Public Law 88–452) states in part: “The term ‘community action program’ means a program . . . which is developed, conducted and administered with the maximum feasible participation of the groups served.” 78 Stat. 516 (1964).

137. The San Francisco Chronicle, Nov. 5, 1965, p. 22, notes:

The Budget Bureau, fiscal arm of the White House, has told the Office of Economic Opportunity it would prefer less emphasis on involvement of the poor at the policy level in community project planning.

“Maximum feasible participation” of the poor — the language of the law — means, in the Bureau's view, primarily the employment of the poor in carrying out the program, not designing it. . . .

Individuals who read the law differently from the Budget Bureau had heard that the bureau was withholding $35 million to remind the anti-poverty agency that encouraging the poor to organize and raise their voice is unsettling politics.

These individuals believe that pressure for this policy is coming from the big city mayors, most of whom are Democrats.

The mayors have openly protested in the past against demands of the poor for policy planning positions. The mayors see a threat to their patterns for governing cities and to their own political security if the poor develop into militant city hall lobbies.

138. A. Blumrosen, Antidiscrimination Laws in Action in New Jersey: A Law-Sociology Study, 19 Rutgers L. Rev., 187, 196 (1965).

139. J. Witherspoon, supra note 82, at 1191.

140. Comment, Enforcement of Municipal Housing Codes, 78 Harv. L. Rev. 801, 807 (1965).

141. J. Witherspoon, supra note 82, at 1192, where he notes: “Although a few state human relations commissions have authority to file complaints initiating enforcement proceedings, they have, by and large, rarely done so.”

142. Comment, supra note 140, at 815, 819.

143. J. Witherspoon, supra note 82, at 1202–03. The author cites the Philadelphia commission as the most successful example of this more effective approach.

144. Report to the Moreland Commission on Welfare, op. cit. supra note 119, at 4. Agencies involved in the enforcement of housing code regulations are also hamstrung by lack of funds. Comment, supra note 140, at 804.

145. E. May, The Wasted Americans: Cost of Our Welfare Dilemma 113 (1964).

146. Id. at 109. Although these states have generally high public assistance salaries relative to other parts of the country, they are still low relative to salaries of other professionals (or quasi-professionals) in the areas cited. It is this latter disparity which probably contributes to high turnover, insofar as salaries are the issue.

147. There is one caseworker with full professional training for every 23,000 relief recipients. One out of three caseworkers in public welfare did not complete an undergraduate education. Only one out of ten has taken any graduate courses in social work. And only one out of a hundred has completed two-year professional social work training. May, op. cit. supra note 145, at 104.

148. Public Welfare in the State of New York, op. cit. supra note 121, at 70.

149. Report to the Moreland Commission on Welfare, op. cit. supra note 119, at 5.

150. Id. at 5.

151. J. Carlin, Lawyers' Ethics 85–86 (1966).

152. J. Handler, The Juvenile Court and the Adversary System: Problems of Function and Form, 1965 Wis. L. Rev. 10, 17 (1965).

153. Based on our field interviews with several California state court judges.

154. See Comment, supra note 140, at 823.

155. See Public Welfare in the State of New York, op. cit. supra note 121, at 79.

156. Drawn from our field notes.

157. On the whole, criminal remedies for code violations have proven inadequate. Their basic problem is that a criminal fine is not well suited to ensuring repair and maintenance. . . .

When present judicial remedies are surveyed, one is impressed by the degree to which the judicial process hinders adequate code enforcement. The courts seem unable to process violations efficiently. . . . Then, too, with the exception of equity proceedings, courts often have difficulty in bringing the necessary parties before them, while agencies, to achieve compliance, prosecute those who can be found rather than those actually responsible.

Comment, supra note 140, at 826, 830–31.

158. A major structural defect of most state human relations commissions is that although they may initiate investigations, they have no authority to file complaints for the purpose of instituting enforcement proceedings. Surely no more disabling requirement, or one less consistent with their mission, could have been imposed upon these agencies. . . .

J. Witherspoon, supra note 82, at 1191.

159. When our attention is directed to “legal” disputes, we quickly find that the notion of an “adversary system” becomes central. The exact referrant of this term remains somewhat vague, but it clearly refers to something beyond the fact that disputes necessarily involve adversaries. A method of adjudication seems at issue, a method entailing institutionalized procedures intended to produce “sides” committed to the development and presentation of a point of view about the facts and legal questions at hand. “Representatives” who are experts at developing and presenting such points of view are typically included in the idea of an adversary system, as well as a neutral third party, the “adjudicator” who decides. The benefits of such a system are vigorously debated. Some contend that it is the best device known to develop facts, and an important vehicle for drawing out the meaning of the law. Others claim that it clouds issues and distorts facts. It is assumed by some that were they given a free reign officials would restrict adversary presentation in the interests of increasing their own freedom of action and their efficiency in disposing of the mountains of cases that often confront them. Under some circumstances, however, officials appear to welcome and foster adversary proceedings and feel that without them their job cannot easily or properly be done. Finally, it is commonly contended that an adversary proceeding is necessary to restrict official arbitrariness, that it is an essential device for holding officials accountable to rules. Little, however, is surely known; none of these matters has been subject to intensive, systematic inquiry.

160. See P. Nonet & J. Carlin, The Legal Profession, in Int'l Encyc. Soc. Sci. (in press, p. 4 of the article), for a fuller discussion of this point.

161. J. Carlin & J. Howard, Legal Representation and Class Justice, 12 U.C.L.A. L. Rev. 381, 382–83 (1965).

162. J. Carlin, op. cit. supra note 151, at 178, based on interviews with a random sample of 800 lawyers in private practice in Manhattan and the Bronx.

163. Id. at 22–30.

164. Id. at 71–73.

165. Data obtained in a survey of auto accident victims in New York City show that in attempting to recover for losses resulting from their injuries lower-class individuals are as likely as upper-class individuals to hire attorneys. J. Carlin, “How Accident Victims Get to Lawyers,” unpublished memorandum, Bureau of Applied Social Research, Columbia University, 1959.

166. See H. O'Gorman, Lawyers and Matrimonial Cases 61 (1963).

167. J. Carlin and J. Howard, supra note 161, at 418–21.

168. The Attorney General's Committee on Poverty and the Administration of Criminal Justice concluded:

In the judgment of the Committee present practices sometimes induce a plea of guilty because appointed counsel recognize the futility of electing to contest in the absence of resources to litigate effectively. The facts indicate that in all the districts studied, pleas of guilty are entered much more frequently by defendants with assigned counsel, than those represented by private counsel. Thus, in the Northern District of Illinois in fiscal 1961, an initial plea of guilty was entered by approximately 75% of all defendants represented by assigned counsel whereas the figure was about 20% in cases represented by private counsel. . . . The Committee has also concluded that the deficiencies of the present (assigned counsel) system adversely affect the quality of the defense made. In the San Francisco Division . . . some 42% of defendants represented by assigned counsel were sentenced to prison while about 29% of those represented by private counsel received prison terms.

Poverty and the Administration of Federal Criminal Justice 29 (1963). In the Sacramento Division 77% of defendants with assigned counsel were imprisoned compared to 42% of those who retained private counsel. Id. at 139. The magnitude of these differences suggest that something more is involved here than the possibility that assigned counsel handle weaker cases than private attorneys.

A recent study of a Public Defender Office in a metropolitan California community discloses that public defenders are primarily concerned with obtaining a guilty plea “wherever possible” in order to avoid trial. The underlying assumption is that those who are charged with crimes are guilty:

The P.D.‘s activity is seldom geared to securing acquittals for clients. He and the D.A., as co-workers in the same courts, take it for granted that the persons who come before the courts are guilty of crimes and are to be treated accordingly. . . . As we shall argue below, the way defendants are “represented,” (the station manning rather than assignment of counsellors to clients), the way trials are conducted, the way interviews are held and the penal code employed — all of the P.D.‘s work is premised on the supposition that people charged with crimes have committed crimes.

D. Sudnow, Normal Crimes: Sociological Features of the Penal Code in Public Defender Office, 12 Social Problems 269 (1965).

169. J. Carlin & J. Howard, supra note 161, at 410.

170. Id. at 408–09 n.110.

171. For example, the caseload in the Los Angeles office approximated 2,000 cases per attorney per year. Id. at 416.

172. Id. at 416–17.

173. Id. at 410.

174. Id. at 411.

175. Brownell claims that “the chief reason for the brankruptcy rule seems to be the desire not to lose the good will of merchants and other creditors from whom the societies must seek settlements for their clients.” Others have perhaps been more candid by indicating that what is feared is not simply loss of good will but the loss of Legal Aid funds. Several participants at the 1948 conference of NALAO observed: “that they encountered objection to their handling (of) these (bankruptcy) cases from merchants, doctors, small loan companies and others. who contribute generously to the Community Chest.”

Id. at 415. In 1963 local Community Chests provided 53% of the funds for Legal Aid societies. 1963 Annual Report of National Legal Aid and Defender Association.

176. Similar pressure may affect the new federally financed legal service programs. Note the following comment of an opponent of a proposed legal service program to be funded by the Office of Economic Opportunity:

Pittsburgh Attorney Alan Williams told the county board of supervisors that landlords, merchants and taxpayers would be among the big losers if the county accepted the proposal put forward by the Contra Costa County Bar Assn. . . . Attorney Williams told the supervisors that the landlords and merchants would pay because free counsel for the debtors could avoid payments for months and in the case of landlords could keep tenants in their units for more months with free rent.

Opposition was also based on the contention that the program “will result in the poor bringing suit in civil matters over trivial things.” Berkeley Daily Gazette, January 12, 1965.

177. J. Carlin & J. Howard, supra note 161, at 415.

178. Thus, according to the attorney in charge of Legal Aid in Pittsburgh: People may say that poverty prevents (the poor) from having the same rights to get a divorce as a person with money, yet we must remember obtaining a divorce is not a right but a privilege. For most Legal Aid clients, a separation is just as useful and practical as a divorce.

Id. at 413.

179. In formulating the functions of legal representation, we are indebted to E. Cahn & J. Cahn, The War on Poverty: A Civilian Perspective, 73 Yale L.J. 1317 (1964). This essay offers an illuminating statement of the lawyer's role in extending the rule of law to the poor.

180. P. Wald, Law and Poverty 1965 27–28 (1965). David Caplovitz notes:

When dissatisfied with shoddy merchandise they receive, some families retaliate for the merchant's bad faith by withholding payments. But this logic, which may well make sense in a traditional society and even in dealings with ethical merchants in our bureaucratic society, does not apply in the low-income marketing system. As most of these families soon learned, the contracts they signed precluded this form of redress.

D. Caplovitz, The Poor Pay More 157 (1963).

181. E. Cahn & J. Cahn, supra note 179, at 1340.

182. Id. at 1341.

183. Report of the A.B.A. Joint Conference on Professional Responsibility, 44 A.B.A.J. 1159, 1160–61 (1958).

184. Id. at 1161.

185. E. Cahn & J. Cahn, supra note 179, at 1339.

186. A study of individual practitioners in Chicago, for example, showed that most lawyers had turned away clients, mainly for economic reasons. Based on further analysis of interview data from the study reported in J. Carlin, Lawyers on Their Own (1962).

187. See H. O'Gorman, op. cit. supra note 166, at 61.

188. Among lawyers in private practice in New York City, the less affluent their clientele the more likely they are to represent at least some Negro clients: 58 per cent of those with the least affluent clientele, compared to 1 per cent of those with the most affluent clientele, report that 4 per cent or more of their clients are Negroes. See J. Carlin, op. cit. supra note 151.

189. Pertinent findings from the study of New York City lawyers are presented in the table, below:

Id. at ch. IV. Number in parentheses refers to the number of respondents.

190. Among lawyers in New York City, 41 per cent of those representing the lowest status clients come into contact primarily with the lowest level courts and agencies, compared to 4 per cent of those representing the highest status clients. Further, the lower the level of court and agency contact, the more likely lawyers are to violate the ethical standards of the bar. Ibid.

191. Canon 27 of the Canons of Professional Ethics of the American Bar Association. See H. Drinker, Legal Ethics 316–17 (1954).

192. Canon 28. Id. at 319.

193. P. Nonet & J. Carlin, op. cit. supra note 160, at 23, 24.

194. See especially Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964); NAACP v. Button, 371 U.S. 415 (1963). See also Report of the California State Bar's Standing Committee on Group Legal Services (1964); Symposium, The Availability of Counsel and Group Legal Services, 12 U.C.L.A. L. Rev. 279 (1965).

195. The translation of a legal problem into a social or psychological one is more readily achieved in the civil than the criminal area; when life or liberty is not at stake it is easier to avoid legal issues. This undoubtedly contributes to the fact that lawyers are more reluctant in civil than in criminal cases to accept the notion that legal representation is a matter of right. Thus, efforts to extend legal representation to the poor in criminal cases have generally preceded similar efforts in the civil area and have encountered less resistance.

196. 78 Stat. 516 (1964), U.S.C. (1964).

197. See Guidelines for Legal Service Programs (Community Action Program, Office of Economic Opportunity, Washington, D.C.). See also E. Cahn & J. Cahn, supra note 179.

198. The experience of neighborhood offices funded by OEO suggests that in spite of an increase in number of attorneys, the case load has not decreased.

199. In most areas the legal service agency is located within a center which houses other OEO-supported community action programs providing various welfare services.

200. An attorney in one California county warned his colleagues:

I ask you to do some soul searching. Do you really want this monster with eight non-lawyers on the board so that we can qualify for a federal handout? . . . It should be done by lawyers — let's have it run on a legal basis, not with laymen telling us what we should do. . .. It should be run and controlled by attorneys.

Drawn from our field notes.

201. T. Voorhees, Legal Aid — Current Needs and New Directions 6, paper delivered at the National Conference on Law and Poverty, Washington, D.C., June 24, 1965.

202. Such an image is implicit in G. Almond & S. Verba, The Civic Culture (1965).

The authors characterize administrative or subject competence (as distinguished from political competence) as follows:

The subject does not participate in making rules, nor does his participation involve the use of political influence. His participation comes at the point at which general policy has been made and is being applied. The competence of the subject is more a matter of being aware of his rights under the rules than of participating in the making of the rules. And though the subject may attempt to make the government official responsive, he appeals rather than demands. His appeal may be to the set of administrative rules that are supposed to guide the action of the government official, or he may appeal to his considerateness. If the government official responds, it is because he is following these rules or because he is being considerate — not because influence has been applied to him. . . . The (competent) subject . . . may want and expect beneficial outputs from government. But he does not expect them to be accorded to him because he demands them. The government official who acts to benefit him responds, not to the subject's demands, but to some other force. . . . This kind of . . . competence is more circumscribed, more passive than that of the citizen. It may set in motion an action that will affect the way in which a rule is interpreted or enforced against an individual. It is not a creative act of influence that can affect the content of the decisions themselves, except in an indirect way.

Id. at 168–69. See Id. at 138.

203. Almond and Verba asked their respondents whether they expected government officials and the police to accord them “equal treatment” and “serious consideration.” If they did expect it, respondents were classified as having a “sense of administrative competence,” i.e., as competent “subjects.” Id. at 70, 72, 168.

204. Id. at 168.

205. In discussing administrative competence Almond and Verba suggest that even if subjects “exert pressure on bureaucrats to follow the administrative rules” (versus seeking “a particular decision in favor of a particular individual or group”), “it does not change the relationship of the individual to the administration — he still comes as a subject, albeit a competent one, whose appeal is to the rules of the bureaucracy.” See Id. at 171–72. Emphasis added. We would argue that the competent subject does change this relationship.

206. See J. Carlin, “How Accident Victims Get to Lawyers: Summary of Findings,” unpublished manuscript, Bureau of Applied Social Research, Columbia University, 1954.

Based on interviews conducted in 1957 with 155 persons selected at random from a list of persons reported to the New York State Motor Vehicle Bureau as “mildly” injured in automobile accidents in New York City. See R. Hunting & G. Neuwirth, Who Sues in New York City (1962), for a report of this study.

207. D. Caplovitz, op. cit. supra note 180, at 171–72.

208. L. Zeitz, Survey of Negro Attitudes Toward Law, 19 Rutgers L. Rev. 288 (1965).

209. Id. at 295. Unfortunately for our purpose, Zeitz does not show the class division of those who did and did not take action. Forty-eight per cent of the sample had incomes of less than $5,000; 42 per cent had incomes between $5,000 and $10,000; three per cent had incomes of $10,000 or more. However, Zeitz did analyze the characteristics of Negroes who had brought cases of discrimination to the attention of the New Jersey State Division on Civil Rights from July 1, 1962 through June 30, 1963. These persons were compared with respondents who reported having experienced discrimination but did nothing about it. Division users were significantly better educated and had greater incomes. Twenty per cent of Division users had incomes of less than $5,000, 51 per cent between $5,000 and $10,000, and 29 per cent $10,000 or more.

210. Id. at 295. (Emphasis added).

211. W. Brink & L. Harris, The Negro Revolution in America (1964).

212. Id. at 203, table “Question 24a, Negro Participation in Direct Action.” It is worth noting, however, that class differences were considerably reduced when the question was whether the respondent would be willing to participate. This suggests that some part of the explanation of inaction — at least in demonstrations, picketing, etc. — may be that poor persons are not as privy as others to opportunities to participate. See Id. at 203, table “Question 24b, Negro Willingness to Participate in Direct Action.”

213. A. Cohen & H. Hodges, Jr., Characteristics of the Lower Blue-Collar Class, 10 Social Problems 303 (1963).

214. Id. at 308.

215. D. Caplovitz, op. cit. supra note 180, at 181.

216. As the sociologist C.C. North has put it, isolation from heterogeneous environments, characteristic of low status, operates to “limit the sources of information, to retard the development of efficiency in judgment and reasoning abilities, and to confine the attention to more trivial interests in life” S. Lipset, Political Man 120 (1960).

The difficulty of the poor in grasping abstractions is noted by lawyers who occasionally represent lower class persons. One lawyer, for example, gave us the following illustration:

Before an Industrial Accident Commission hearing I try to alert the injured worker to the possibility that the insurance company has taken highly selective motion pictures of his recent behavior and suggest that he should very carefully consider his answers to questions concerning specific acts. I'll say, “opposing counsel may ask if you have mowed the lawn recently. And this probably means the insurance company has pictures of you mowing the lawn. So watch out for that kind of question. Tell them the truth.” Now if counsel does ask my client if he mowed the lawn recently, the client will catch on and do what I told him. But if the lawyer asks him if he changed a tire recently, the client would not draw the analogy that this, too, is a specific act. He will probably answer “no” because not being able to change a tire is indicative of his disabled condition. And then they produce the movies.

Drawn from our field notes.

217. Respondents in a representative sample of 1,000 Texas adults were asked if they understood most of the court proceedings the last time they observed a trial. Forty-four per cent of persons with less than a high school education, compared to 15 per cent of those with a college education, said that there was much they did not understand when last in court. J. Belden, “What Texans Think of Lawyers” 43, unpublished manuscript, 1952. In a study of a mid-western community it was shown that middle class respondents were more likely to know “how many jurors must agree to reach a verdict.” See A. Barton & S. Mendlovitz, The Court and the Community: A Study of Contacts, Communications, and Opinions Regarding a Specialized Legal Institution (1956). The study was based on interviews with a probability sample of 102 adults in a midwest-em city of about 120,000 people.

218. A Los Angeles study shows that almost half of 542 persons currently unemployed had never heard of “the Government retraining programs, night courses, or other programs to give more training to people.” It was noted, however, that: “in response to an earlier question, about four-fifths of this same sampling had indicated an interest in retraining.” See Hard-Core Unemployment and Poverty in Los Angeles 133, 217 (1965).

219. According to a Texas survey, 35 per cent of respondents of low socio-economic status did not know a lawyer in their community, compared to 18 per cent of those of upper- and upper-middle socioeconomic status. J. Belden, supra note 217, at 18. And a study of court contacts in a midwestern community shows that 52 per cent of respondents from business households and 53 per cent of those from white-collar households knew two or more court professionals (judges, lawyers or court employees), compared to only 12 per cent of semi-skilled and unskilled workers. A. Barton & S. Mendlovitz, op. cit. supra note 217.

It can be argued that the relationship between class and familiarity with lawyers is a function of the fact that lawyers belong to the middle and upper classes — not that classes differ in the breadth of their worlds. By either interpretation, however, it is clear that fewer of the poor than the rich have easy access to persons who can facilitate their use of the legal system.

220. An Iowa survey reports that 81 per cent of a quota sample of 234 low-income respondents have no knowledge of where free or low-cost legal services may be obtained. Iowa State Bar Assn., Lay Opinion of Iowa Lawyers, Courts and Laws 34 (1949). Whether this is due to lack of knowledge or lack of such services is perhaps an open question, although the Iowa survey treats it as the former noting: “While most lawyers provide such services on a personal basis, the extent of their contributions is not recognized.” A California survey reports that about one-third of 582 lower-income respondents either believe free legal services are unobtainable or do not know where they can be found. Lord & Thomas, Public Opinion Poll for the State of California Code 54 (1940). Koos found that almost one-half of his working class sample in Rochester, New York, had no idea or only a vague idea of the existence of a Legal Aid Society office in that city — even though Rochester was chosen for special study because it “has a Legal Aid Society which is efficient and has been in existence long enough to have become well-known in the community.” E. Koos, The Family and the Law 10 (1949).

221. Only 24% of the Puerto Ricans had some idea of where to get help, compared with 50% of the Negroes and 41% of the whites. Caplovitz notes: “As the newest immigrants, Puerto Ricans may be too insecure or too intimidated to find out what they can do about their problems. Or perhaps their friends and acquaintances are of little help, for they, too, do not know where to turn.” D. Caplovitz, op. cit. supra note 180, at 177.

222. Of those classified as having broad shopping scope 56% knew of a source for help compared with 24% of those with a narrow shopping scope. Id. at 176.

223. Sixty-six per cent of respondents from families in which the household head had a high school degree knew of a source for help, compared with 21% of those from families in which the household head had only an elementary school education. Id.

224. For example, Koos asked “working class” and “middle class” respondents to indicate if they had experienced any of 30 problems frequently serviced by lawyers; he then asked them to say why they had not consulted a lawyer (if they had not). About 48 per cent of the working class respondents said they were unable to afford the fees; an additional 6 per cent said they would not “take charity.” Twelve per cent of middle class respondents said they were unable to afford the fees; none mentioned charity. E. Koos, op. cit. supra note 220.

225. A California survey shows that 54 per cent of “lower class” and 31 per cent of “upper class” respondents said “price” or “expense” was the reason they would not seek legal advice from a lawyer. Lord & Thomas, op. cit. supra note 220.

226. L. Coser, The Sociology of Poverty, 13 Social Problems 141, 147 (1965).

227. E. Cahn & J. Cahn, supra note 179, at 1321–22.

228. Clement E. Vose, Litigation as a Form of Pressure Group Activity, 319 Annals 22 (Sept. 1958).

229. A. Cohen & H. Hodges, supra note 213, at 315. See also G. Knupfer, Portrait of the Underdog, in Class, Status and Power: A Reader in Social Stratification 256, 258, 262 (R. Bendix & S. Lipset eds. 1953); J. Kahl, The American Class Structure 147 (1957); M. Harrington, The Other America 26–27 (1964); D. Caplovitz, op. cit. supra note 180, at 133 where he notes “For the sample as a whole, and within each social group, the more solvent families more often belong to voluntary associations.”

230. H. Gans, The Urban Villagers 289 (1962).

231. Id. at 296.

232. R. Lane, Political Life pts. II & IV, 16 (1965).

233. See G. Almond & S. Verba, op. cit. supra note 202, at 210 fig. 3. The countries were the United States, Great Britain, Germany, Italy and Mexico.

234. The Negro Church has played a crucial role in fostering Negro participation in the civil rights movement. By assuming this political function the church has given the movement a valuable organizational base.

235. E. Cahn & J. Cahn, The War on Poverty: A Civilian Perspective, 73 Yale L.J. 1317, 1334 (1964).

236. For example, a recent study of accident victims in New York City found that if the victim had obtained a money recovery in a previous accident he was more likely to make some effort to recover for his loss in the case at hand than if he had never been in a previous accident; those who failed to recover in the previous accident were least likely to make an effort to recover now. See J. Carlin, op. cit. supra note 206.

237. S. Lipset, op. cit. supra note 216, at 415.

238. E. Cahn & J. Cahn, supra note 235, at 1337 no. 27.

239. See L. Zeitz, supra note 208, at 25, where he concludes: “The police are seen (by lower-class Negroes), at least in their active roles, as antipathetic (at best) to (their interests). . . . Mention of the police brought forth a deluge of complaints ranging from callousness and apathy through brutality and extortions.”

In the recent report on the Watts riot it was noted:

“Police brutality” has been the recurring charge (of Negroes appearing before the Commission as witnesses). One witness after another has recounted instances in which, in their opinion, the police have used excessive force or have been disrespectful and abusive in their language or manner. . . . The reasons for the feeling that law enforcement officers are the enemy of the Negro are manifold and it is well to reflect on them. . . . In each of the 1964 riots, “police brutality” was an issue, as it has been here.

The Governor's Commission on the Los Angeles Riots, Violence in the City — an End or a Beginning 27, 28, 29 (1965).

240. See H. Garfinkel, Conditions of Successful Degradation Ceremonies, 61 Am. J. Soc. 420 (1956). As the Moreland Commission observes with respect to New York State:

An applicant becomes eligible for assistance when he exhausts his money, gives a lien on his property to the welfare department, turns in the license plates of his car and takes legal action against his legally responsible relatives. When he is stripped of all material resources, when he “proves” his dependency, then only is he eligible. Welfare policies tend to cast the recipient in the role of the propertyless shiftless pauper. This implies he is incompetent and inadequate to meet the demands of competitive life. He is then regarded as if he had little or no feelings, aspirations or normal sensibilities. This process of proving and maintaining eligibilty in combination with the literal adherence to regulations and procedures tends to produce a self-perpetuating system of dependency and dehumanization.

Report to the Moreland Commission on the Welfare Findings of the Public Assistance Program and Operations of the State of New York 78 (1962).

241. J. Levi, “The Legal Needs of the Poor: Problems Relating to Real Property,” p. 10, paper read at the National Conference on Law and Poverty, Washington, D.C., June 23–25, 1965.

242. J. Carlin, op. cit. supra note 206.

243. L. Zeitz, supra note 208, at 301.

244. W. Brink & L. Harris, op. cit. supra note 211, at 234.

245. See L. Zeitz, supra note 208, at 310.

246. Ibid.

247. See K. D. Davis, Ombudsmen in America: Officers to Criticize Administrative Actions, 109 U. Pa. L. Rev. 1057 (1961). Also see R. Cloward & R. Elman, Poverty, Injustice and the Welfare State: An Ombudsman for the Poor?, 202 The Nation 230 (February 28, 1966).

248. See F. Pinner, P. Jacobs & P. Selznick, Old Age and Political Behavior: A Case Study (1959).

249. A. Blumrosen, op. cit. supra note 138.

250. A similar recommendation was proposed many years ago by Ludwig Bendix in L. Bendix, Richter, Rechtsanwälte und Arbeitsgerichte, 2 Die Justez 188–89 (1926).