Bennett, Susan

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American University Washington College of Law Digital Commons @ American University Washington College of Law Articles in Law Reviews & Other Academic Journals Scholarship & Research 2002 Empathy, Spring, and Fervorino Susan Bennett Follow this and additional works at: https://digitalcommons.wcl.american.edu/facsch_lawrev  Part of the Labor and Employment Law Commons, Law and Society Commons, and the Legal Profession Commons EMPATHY, SPRING,AND THE FERVORINOSUSAN BENNETT*This is a panel about welfare advocacy and about public interestadvocacy. I will get to discuss welfare advocacy obliquely. This is awonderful room to be able to talk about public interest advocacy. Itis very striking to me and it is such a pleasure to be in this roombecause, if you believe that part of the great joy of being a publicinterest lawyer is part of the transmission of a tradition, there is awarmth and a wealth of tradition in this room.I look in the back of the room and see Danny Greenburg, who wasmy extern supervisor when I was in law school. On Delancey Street,Danny fed me cheese blintzes for two years, and performed manyother valuable services that kept me in law school and enabled me tosee that there was something worthwhile about becoming a lawyer - agreat deal.There are also alumni of Washington College of Law here. Thereis Erin Loubier, Mike Barbosa, Claudia Gordon, and many more Iprobably am not mentioning whom came for our clinics and ourexternships. These alumni have gone to work and are creating theirown careers in public interest law. Many of them were mentees ofPeter Cicchino and it is a pleasure to feel that kind of great chain ofbeing in this room.This is not a fervorino. For those of you who have read Peter'swork, he refers to a rhetorical device or a speech form known as afervorino that he described as a "go-get-em speech" that the mastersof the Jesuit novices would give to the troops to pump them up.'* Professor of Law and Director, Community and Economic Development LawClinic, Washington College of Law American University. J.D., 1979, ColumbiaUniversiy, M.A., 1975; B.A., 1973, Yale University.1. See Peter Cicchino, The First Annual Peter Cicchino Award for OutstandingAdvocacy in the Public Interest Pall Discussion: Defending Humanity, 9 AM. U. J. GENDERSOC. POL'Y & L. 1, 3 (2001) ("The point of the fervino... is to act as a moral call toarms, to inspire and console, to put into words and thereby make present the idealswe cherish and in which we believe.").50 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 10:1I do not do well at fervorinos, or maybe the plural is fervorini, Idon't know. My speech really is not an exhortation to the converted,but more like a caution. It is a caution against trying to apply tooquickly and too much without thinking about one of Peter's corebeliefs that recurs throughout his writings. Let me give you a quotefrom his essay To Be a Political Lawyer. "The thing that is shockingabout human reality is not that we misunderstand one another, but,conversely, that we are so capable of understanding each other, andtherefore of coming to each other's aid." 2That is an expression of enormous faith in the expansiveness andempathy across lines such as race, class, gender, sexual orientation,geography, and time. That faith supported Peter's belief, which wasso strong, in the inevitability that universal human rights would berecognized and implemented. These rights include not only theright to freedom of political expression, but also the right to basichuman needs such as shelter, medical care, food and income.I would argue that if humans are capable of this great overarchingempathy, I think they are also really terrified of it. That empathy liesvery deep within all of us, for sure. But unless you are a PeterCicchino, in the absence of a single galvanizing event, such as anexpression, a war or a movement, that empathy is almost unearthablefor most of us most of the time.One example of a great galvanizing event is the Great Depressionsome sixty-five years ago that engaged families like mine and manyothers in a great migration.3 There was nothing in the house but, as Ihave heard many times, half ajar of strawberry jam and half a loaf ofcheap white bread. There was no choice but to pile into the pickuptruck and drive north to depend on the uncertain kindness ofrelatives who might just as well have been strangers.That was an experience shared by thousands many years ago. Whatit brought forth was the very flawed, as we have heard, but also realsocial justice vision of the New Deal.4 While the New Deal was guiltyof creating a two-track system of welfare, one for unemployed men2. Peter M. Cicchino, To Be a Political Lawyer, 31 HARv. C.R.-C.L. L. REV. 311, 312(1996).3. See generally FRANCES Fox PIVEN & RICHARD A. CLOWARD, REGULATING THEPOOR 459-60 (1993) (discussing the devastating effect the Great Depression had themajority of the population in America).4. See THOMAS H. GREER, WHAT ROOSEVELT THOUGHT: THE SOCIAL AND POLITICALIDES OF FRANKLIN D. ROOSEVELT 16 (2000) (explaining that the purpose behind theNew Deal was to give a larger number of individuals equal opportunity to enjoy the"good life" through new federal regulations of labor and employment); Paul W.Ward, Washington Weekly: Nothing Red but the Tape, THE NATION, Jan. 1937, at 8(discussing the bureaucratic problems of Roosevelt s New Deal).2002] SUSAN BENNETT 51and one for women and dependent children, it at least did onething.5 For a short time anyway, as poorly and with as muchrecrimination and lack of empathy as it might have beenadministered, the New Deal system of welfare for AFDC did at leastrecognize the moral imperative that there could and should be anational system of distribution of income.6 It was a creature of forcedempathy.I would say that empathy is, then, usually absent. When it is absentthe two camps of the haves and the have-nots are unjoinable. Thereare the humans who have, who are far more comfortable withpursuing personal security as far as their resources will take them,and there are humans who lack. In many ways they are stuck wherethey are by the choices of others.These choices are institutional, political, and personal. Thesechoices have included the choice to redline, to form exclusivecommunities and to create the bounds and conditions of excludedcommunities.7 These choices have consequence, not only for theimmediate choosers and choosees but also for their descendants.The denials of mortgages by federal and commercial lenders to someborrowers and neighborhoods in 1950 means that in the year 2001these borrowers, their grandchildren and their neighborhoods havemissed out on fifty years of the greatest run-up of wealth in our5. See Kathleen M. Keller, Federalizing Social Welfare In a World of Gender Difference:A History of Women's Work in New Deal Policy, 8 S. CAL. REV. L. & WOMEN'S STUD. 145,145-47 (1999). The New Deal's Social Security Act of 1934 created anunemployment compensation program for able-bodied breadwinners and createdthree public assistance programs. See id. The first of the three public assistanceprograms aided the elderly poor, the second aided the blind poor, and the thirdaided women with dependant children. See id. Kathleen Keller argues that the SocialSecurity Act institutionalized the "ideal of the male-headed, single-income middle-class household" and resulted in women who were dependant on male workersreceiving special treatment than women who were not dependant on males. Id.6. See GREER, supra note 4, at 16 (discussing how the New Deal intended toenable poor people to "share in the distribution of national wealth" by emphasizingeach individual's economic and social rights).7. See David A. Harris, Jr., Using the Law to Break Discriminatory Barriers to FairLending for Home Ownership, 22 N.C. CENT. L.J. 101, 103-06 (1996) (discussing howbanks continue to discriminate in granting loans by refusing to lend money toresidents of certain communities on the basis of race or ethnicity as opposed tocreditworthiness, despite the civil rights movement and the federal anti-discrimination laws); Leland B. Ware, Invisible Walls: An Examination of the LegalStrategy of the Restrictive Convent Cases, 67 WASH. U. L.Q. 737, 739-40 (1989)(explaining how restrictive covenants became the primary means thatneighborhoods maintained racially segregated housing patterns in the 1930s byrestricting owners from leasing, selling, or conveying their property to any memberof the excluded class. The covenants were either inserted into property deeds by realestate developers or prepared by attorneys at the request of neighborhoodorganizations.).52 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 10:1Nation's history.8These choices have been supported by a culture and ajurisprudence, as we know, based on the sanctity of individual andpersonal choice.9 But now, since our day-to-day is not dictated bygreat galvanizing events but by choices, what do we do? What, in theabsence of great events, are the great disinhibitors that allow us to beempathetic and force the feeling that opens our eyes? What things,factors, or movements will force what Peter considered to be theinevitability of implementation of universal human rights?I guess another way to phrase that question, or those questions, isin the absence of crisis, what creates a movement, and if we need amovement, what movement do we need?That brings me, finally, to the right to welfare. This could be theright movement. It could be the right direction. I think it's thewrong step. In some ways, a right to welfare is an abomination. It'slike asserting the rights of homeless people to sleep under bridges orto have their possessions in green plastic garbage bags kept free fromunreasonable search and seizure. If these rights are notabominations themselves, they imply the acceptance of abominations.I would never fail to support any measure that attempts to restoresome public accountability and some recognition of the awfulhistorical impact of majoritarian choices to the public welfare system.And while I would never fail to support any advocacy that asserts thedignity of privacy for people without shelter, I would hope that wewould not stop there.I think the movement that we need begins big and small. Weshould begin with policies that force the conditions of empathy sothat movements are possible in the absence of galvanizing events.This means policies that force the creation of inclusive communitieswhere people must live and share in the public debate and in thepublic good. We used to call this civil rights, I think.These policies require a dedication of public resources to publicfora where communal discourse can take place, like libraries,community centers and schools. We learned last week that in the Cityof Baltimore, where I live, that five of our smallest public libraries aregoing to be shut down.0 It is a small news item. In some ways it is a8. See James J. Puplava, Miracle of Miracles, FINANCIAL SENSE ONLINE, Nov. 1999, athttp://www.financialsense.com/series1/miracles.htm (discussing theunprecedented rise of the stock market and economy over the past century).9. See, e.g., KARL MARx: THE ESSENTIAL WRITINGS 30-31 (Fredrick L. Bender ed.,1986) (arguing that under our system of democracy, the people, and hence theaggregate choice of individuals, forms the law).10. See, e.g., Meeting at Library Branch is Effort to Forestall Closing, BALT. SUN, JuneSUSAN BENNETTsmall community tragedy.For the moment, with our obsession with individualism, thecreation of public spaces for public discourse and communicationmeans policies that inhibit the creation of exclusive spaces. Exclusivecommunities are places to which people can escape to avoid theterror of confronting their own empathy. These policies do exist.They are very concrete. They include anti-sprawl ordinances." Theyinclude ordinances called linkage ordinances.'2 These are municipalordinances that acknowledge that there is significant public subsidyin terms of infrastructure that goes into private development. Theseordinances require developers to give something back to thecommunity by dedicating a portion of new development to affordablehousing.3 This acknowledges that the perfect city is not the city thatcrowds out the poor.These are things that are small, though in no way easy toimplement in and of themselves. Maybe they create thepreconditions for empathy and thus for movements to accomplishbigger things.19, 2001, at 3B (noting that " [t]his month, Mayor Martin O'Malley expressedinterest in exploring whether private foundations might help prevent the plannedclosings of five library branches this summer."); Jamie Stiehm, Pratt Officials EyeEleven Libraries for Closure, Residents at Meeting Told First Five Branches to Close In Summer,BALT. SUN, Apr. 11, 2001, at 1B (explaining that "Enoch Pratt Free Library officialsissued a list last night of 11 neighborhood library branches that are candidates forclosure, sparking an outcry of protest at a spirited public meeting").11. See, e.g., Shala Gallentine, County Seeks Anti-Sprawl Regulations, AUGUSTACHRON., Nov. 28, 2000, at C06 ("As Athens-Clarke County commissioners prepare tovote.., on a proposed new zoning ordinance designed to curb sprawl, they join anationwide trend that encourages strong city centers, walkable neighborhoods andprotected open greenspace. In states such as Georgia that don't have anti-sprawllaws, some municipalities are creating their own long-term growth strategies tocombat sprawl."). But see Michael Allan Wolf, Environmental Law Slogans for the NewMillennium, U. RICH. L. REV. 91, 94 (2001) (arguing that the downside to the anti-sprawl ordinances may include disregarding older and more dilapidatedneighborhoods comprised of lower income residents and heightened environmentaljustice violations).12. See, e.g., San Francisco, CAL. PLANNING CODE § 313 et seq. (1990) (outliningthe Office Affordable Housing Production Program (OAHPP), which imposes ahousing obligation on office building developers based on the number of newemployees expected to move to the area because of the office development. Thisobligation may be satisfied by paying linkage fees to the city affordable housing fundor by making payments to housing development projects). See generally Jane E.Schukoske, Housing Linkage: Regulating Development Impact on Housing Costs, 76 IowAL. REV. 1011 (1991) (discussing how linkage ordinances offset housing burdens andpromote the development of affordable housing).13. See generally Jennifer M. Morgan, Zoning for All: Using Indusionary ZoningTechniques to Promote Affordable Housing, 44 EMORY L.J. 359 (1995) (explaining howmunicipalities have responded to the pressing need for safe, sanitary, and affordablehousing by implementing programs, such as housing linkage, that shift some of theburden of producing low-income housing from the state and local government todevelopers).2002]54 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 10:1Some British researchers, whose work I read recently, haveproposed a human rights urban policy that calls not for fullemployment but for something called full engagement.4  Fullengagement means that individuals receive the basic subsistencenecessary to be educated and to be housed without question." Butalso, the right to full engagement means reciprocal duty. This doesnot mean the compulsion to workfare, but communal participationin some way. This would not entail the United States' current andtruly reprehensible policy of service work, which usually consists ofspearing garbage on a highway. Rather, full engagement wouldentail a concrete recognition of the worth that any individual mightbring to uncompensated activity. This could include care-giving,volunteering, driving a next-door neighbor to the doctor's office orusing your talent for art in public ways. Parenthetically, we used tocall this the WPA. 6 A lot of us are stuck in a time that began beforewe were born.These researchers have proposed this only for those who lack, butmaybe for those who have as well. There could be the equivalent of acommunity service requirement to acknowledge our obligation togive back and return something for the extraordinary publicsubsidies we receive and enjoy, such as the mortgage interestdeduction and the highway infrastructure that gobbles up allocationsfor public transit and allows us to drive away from our empathy.To close, last week my neighbor asked for permission to cut somebranches down from my forsythia, which looked really dead anyway,for something that he called 'forcing.' Yes, why not. It sounded goodto me. When I came back last weekend from a weekend away, on mykitchen counter was a small purple vase with three big, arching spraysof big, bright golden flowers.14. See Colin C. Williams & Jan Windebank, Self-Help and Mutual Aid in DeprivedUrban Neighborhoods: Some Lessons from Southampton, 37 URB. STUD. 127, 139 (2000)(outlining a policy of full engagement that would serve urban communities byutilizing the skills and abilities of all community members).15. The right to housing, whether you should have to buy it on the open marketat all, is another question, and the possible subject for quite a big symposium.16. See Don Adams & Arlene Goldbard, New Deal Cultural Programs: Experiments inCultural Democracy, at http://www.wwcd.org/policy/US/newdeal.html (last visitedOct. 3, 2001) ("The largest and most important of the New Deal cultural programswas the Works Progress Administration (WPA), a massive employment relief program[that] put the unemployed back to work in jobs which would serve the public goodand conserve the skills and the self-esteem of workers throughout the U.S.").2002] SUSAN BENNETT 55Empathy is something the flowering of which must be forced. Weare not Peter Cicchinos. We must, however, recreate the conditionsof proximity and intimacy to allow human empathy to reassert itself.This is not impossible. This is spring. This is resurrection. This isPassover.This ends my poor excuse for a fervorino. Thank you for beinghere, and we thank Peter for bringing us here. Thank you.

Empathy, Spring, and Fervorino

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Empathy, Spring, and Fervorino

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