This essay and the longer paper it is based on, “Building Builders’ Clinics,” were written for the Law of Abundance project at the Johns Hopkins University Center for Economy and Society.

Who will practice the law of abundance? One cannot address the housing crisis, the child care crisis, access to basic needs like banking and healthy and affordable food, or the climate crisis without solving the problem of undersupply. Lawyers are required to navigate regulatory processes and advocate for changes to laws that, today, make it unnecessarily difficult to build more for those who need it. A public interest law practice committed to addressing poverty and the needs of low-income people should address the problem of scarcity. These are ideal projects for a public interest lawyer, but, today, public interest law makes little space for this work. Law schools are a good place to start to make that space.

The modern conception of public interest lawyering was born in the 1960s and 70’s. Nonprofit law firms representing and advancing the rights of the marginalized drew funding from large foundations and inspiration from decades of work by the NAACP and the ACLU.1 Over this period, hundreds of local legal services organizations and dozens of national firms dedicated to protecting racial minorities, consumers, and the environment opened their doors. They served clients who met their intake criteria, based on a client’s demographic features and the nature of their legal needs.

At the time, the Ford Foundation, the most prominent force funding these endeavors,2 understood the need “to create a theoretical justification for its commitment to these firms.”3 They argued that the legal work undertaken by this new crop of firms provided voice to those otherwise excluded from both court proceedings and administrative processes. While the field evolved over time, its goal of ameliorating inequality using the regulatory state persists.4

Public interest lawyers’ ability to meet those goals is hampered, however, by the fact that their work was and remains largely “ad hoc, defensive, unplanned, reactive to current affairs.”5 They respond to oppressive action but do not advance a positive vision of resource development and provision. In an example from the world of housing law, legal services lawyers, operating in a realm of extreme scarcity, take a small number of the tenants eligible for their services and routinely prioritize those who reside in subsidized housing over those left to maneuver in the private market. The reason? Federal law entitles the former to procedural protections unavailable to the latter. Lawyers representing public housing residents and voucher-holders have more legal tools at their disposal than do those representing the 80 percent of low-income renters with market-rate landlords. Winning a housing lottery sets you up for the legal services lottery.

Community development practice is an instructive exception, since it is a public interest law practice dedicated to resource development. However, its most prominent theoretician, William H. Simon, and many of its practitioners tout not resources, but the governance of those resources, as the defining feature of community development law.6 They are less interested in building housing and grocery stores and more interested in ensuring a governance stake in that housing and those grocery stores for community-based organizations.7 Their focus is hyperlocal and, as a result, misses regional inequities and proposes few solutions that grow resources rather than changing their allocation.8 I have argued that even among self-described community development lawyers, a significant amount of legal work does not advance a positive vision of development, but instead reacts to development perceived to be harmful to low-income communities.9

It is this hyperfocus on process, across public interest practices, that has resulted in a critical oversight in mainstream public interest law practice. While public interest lawyers dedicate themselves to meeting unmet legal needs, they do not advance a vision for meeting unmet material human needs. There is very little interest in addressing scarcity. Resource constraints are, instead, taken for granted. Meanwhile, of course, scarcity does not work for poor people. When resources are scarce, they tend to be allocated to the rich and powerful, who can both pay inflated prices and navigate complex bureaucracies indecipherable to average citizens.

Scarcity’s disproportionate impact on poor people is well-evidenced today by the state of the housing market. Record low vacancy rates are accompanied by record high rents in much of the country, especially in those areas where the law and mandatory public processes make it very difficult to address scarcity by building new housing.10 Outbid by middle-income renters, poor renters are left falling to the floor in the resulting game of musical chairs.11 

As the laws that govern housing production have become more stringent, housing costs have skyrocketed. High-demand cities and their suburbs, from New York to Los Angeles, embraced exclusionary zoning beginning in the 1960s, rendering much of the existing built environment noncompliant with the new rules and ensuring that any new construction would be significantly more expensive than what had come before. Since that time, the average age of a housing unit has skyrocketed, as have prices. This is particularly onerous for the one-third of households that rent. These households suffer the consequences of higher rents but never see the benefits of higher housing prices. Renters, of course, are disproportionately low-income. 

While law is a key driver in creating scarcity, to date, public interest lawyers have had little to say about bringing about abundance. Some have located abundance lawyering in the property-rights wing of the public interest law arena. Abundance lawyering can – sometimes – be a libertarian project. The Institute for Justice houses a zoning-reform project and the Cato Institute has long challenged overregulation of home-based child care provision. But the field includes a great deal of regulatory work – from reinvigorating antitrust law to better serve consumers to building up the administrative capacity of the state to provide resources underprovided by the market today. Abundance lawyering is not a practice ideologically bent along familiar lines. 

That complexity is all the more reason why law schools and clinics are crucial places to build this developing field. Clinics are a venue for teasing out the nuances of a field and the unintended consequences of our lawyering choices. They are places where a new generation of public interest lawyers are recruited into the field and trained how to practice in it. Law professors have work to do here, to develop not just the theory of abundance lawyering but to understand the role that practitioners will play in lawyering for abundance.

One place to start is to increase the number of law school clinics tackling scarcity as a legal problem. Law schools and their experiential learning programs have long served as a forum for developing and interrogating public interest lawyering modalities. Derrick Bell, building on work as a practicing civil rights lawyer himself, developed his critiques of civil rights lawyering while on the faculty at Harvard Law School. For decades, those critiques informed policymakers’, lawyers’, and civil rights organizations’ approaches to law reform and integration policy. Over the course of the 1970s and the following decades, legal scholars, including clinicians, developed theories of community lawyering that informed countless young lawyers’ careers and just as many foundations’ funding choices.12 Today, law clinics and legal scholarship, working alongside nonprofit law firms, are building out a theory of movement lawyering in an effort to support broad-based movements to achieve social change.13 National nonprofit law firms use law clinics to help staff national movement work.14 Across these lawyering paradigms, work inside of law schools then informs the choices of large funders and the nonprofit law firms they finance. 

Law school clinics are often partners in the development of new lawyering modalities because they are, very self-consciously, engaged in constant reflection.15 Reflection is not a skillset one easily develops as a billable hour-counting, practicing lawyer. In the clinic classroom, however, we routinely ask ourselves, “What is the lawyer’s role when it is the law itself that gives rise to injustice?” These courses require students and faculty to engage in real-world advocacy while simultaneously imagining how best to change the ways in which law and lawyering contribute to the very problems we seek to solve. Previous generations of clinics and clinicians have considered civil rights advocates’ successes and failures in bringing about integration, poverty lawyers’ replication of the hierarchies and injustices that undermine due process when poor clients engage with the administrative state, and the risk that movement lawyers will undermine the causes they purport to support. Clinics can and should serve a similar role in the effort to build out an abundance network of changemakers. As the field of Law and Abundance develops, clinics will be an ideal forum in which to teach it.  

Anika Singh Lemar is a Clinical Professor of Law at Yale Law School.

  1. Robert L. Rabin, “Lawyers for Social Change: Perspectives on Public Interest Law,” 28 Stan. L. Rev. 207, 209 (1976). ↩︎
  2. Id. at 228. ↩︎
  3.  Louise G. Trubek, “Public Interest Law: Facing the Problems of Maturity,” 33 UALR L. Rev. 417, 421 (2011). ↩︎
  4. Id. at 424. ↩︎
  5. Rabin, supra note 1, at 214 (1976). ↩︎
  6. William H. Simon, The Community Economic Development Movement: Law, Business, and the New Social Policy (Duke University Press, 2001). ↩︎
  7. David Barron, “Review: The Community Economic Development Movement: A Metropolitan Perspective,” 56 Stan. L. Rev. 701 (2003). ↩︎
  8. Id. ↩︎
  9. Anika Singh Lemar, “Overparticipation: Designing Effective Land Use Public Processes,” 90 Fordham L. Rev. 1083 (2021). ↩︎
  10. See e.g., Jonathan Spader, Housing Vacancy Rates Near Historic Lows, U.S. Census Bureau (May 12, 2012), https://www.census.gov/library/stories/2022/05/housing-vacancy-rates-near-historic-lows.html; New Report Shows Rent Is Unaffordable for Half of Renters as Cost Burdens Surge to Record Levels, Joint Center for Housing Studies of Harvard University (Jan. 25, 2024), https://www.jchs.harvard.edu/press-releases/new-report-shows-rent-unaffordable-half-renters-cost-burdens-surge-record-levels; Allison Hanley, Rethinking Zoning to Increase Affordable Housing, The National Association of Housing and Redevelopment Officials(Dec. 22, 2023), https://www.nahro.org/journal_article/rethinking-zoning-to-increase-affordable-housing/.
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  11.  Ron Wirtz, “Rental housing markets, Musical chairs, with fewer chairs,” Federal Reserve Bank of Minneapolis (July 10, 2012), https://www.minneapolisfed.org/article/2012/rental-housing-markets-musical-chairs-with-fewer-chairs. ↩︎
  12. Karen Tokarz, Nancy L. Cook, Susan Brooks, and Brenda Bratton Blom, “Conversations on ‘Community Lawyering:’ The Newest (Oldest) Wave in Clinical Legal Education,” 29 Wash. U. J. Law & Pol. 359 (2008); Stephen Wexler, “Practicing Law for Poor People,” 79 Yale L.J. 1049 (1970). ↩︎
  13.  See, e.g., Alexi Freeman, “Teaching for Change: How the Legal Academy Can Prepare the Next Generation of Social Movement Lawyers,” 59 How. L. J. 99 (2015). ↩︎
  14.  See, e.g. Luz Herrera and Louise G. Trubek, “The Emerging Legal Architecture for Social Justice,” 44 N.Y.U. Rev. L. Soc. Change 355, 359 (2020) (describing Law for Black Lives, a movement lawyering nonprofit that “employs technology to connect community organizations with lawyers and law school resources, such as clinics and pro bono projects.”) ↩︎
  15. Timothy Casey, “Reflective Practice in Legal Education: The Stages of Reflection,” 20 Clinical Law Rev. 317 (2014). ↩︎