Social Welfare Law Commons^™

Nowhere To Run To, Nowhere To Hide, Praveen Kosuri, Lynnise Pantin

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As the COVID-19 global pandemic ravaged the United States, exacerbating the country’s existing racial disparities, Black and brown small business owners navigated unprecedented obstacles to stay afloat. Adding even more hardship and challenges, the United States also engaged in a nationwide racial reckoning in the wake of the murder of George Floyd resulting in wide-scale protests in the same neighborhoods that initially saw a disproportionate impact of COVID-19 and harming many of the same Black and brown business owners. These business owners had to operate in an environment in which they experienced recurring trauma, mental anguish and uncertainty, along with …

The Irony Of Health Care’S Public Option, Allison K. Hoffman

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The idea of a public health insurance option is at least a half century old, but has not yet had its day in the limelight. This chapter explains why if that moment ever comes, health care’s public option will fall short of expectations that it will provide a differentiated, meaningful alternative to private health insurance and will spur health insurance competition.

Health care’s public option bubbled up in its best-known form in California in the early 2000s and got increasing mainstream attention in the lead up to the 2010 health reform, the Patient Protection and Affordable Care Act (ACA). The …

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

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This essay reviews Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020), which explores the changes in legal imagination that accompanied the rise of workers' compensation programs. The essay foregrounds Holdren’s insights about disability. Injury Impoverished illustrates the meaning and material consequences that the law has given to work-related impairments over time and documents the naturalization of disability-based exclusion from the formal labor market. In the present day, with so many social benefits tied to employment, this exclusion is particularly troubling.

The Poverty Law Education Of Charles Reich, Felicia Kornbluh, Karen Tani

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This essay, written for a symposium on the life and legacy of Charles Reich, explores how Reich came to be interested in the field of poverty law and, specifically, the constitutional rights of welfare recipients. The essay emphasizes the influence of two older women in Reich’s life: Justine Wise Polier, the famous New York City family court judge and the mother of one of Reich’s childhood friends, and Elizabeth Wickenden, a contemporary of Polier’s who was a prominent voice in social welfare policymaking and a confidante of high-level federal social welfare administrators. Together, Polier and Wickenden helped educate Reich about …

Chapter: “Health Law And Ethics”, Allison K. Hoffman, I. Glenn Cohen, William M. Sage

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Law and ethics are both essential attributes of a high-functioning health care system and powerful explainers of why the existing system is so difficult to improve. U.S. health law is not seamless; rather, it derives from multiple sources and is based on various theories that may be in tension with one another. There are state laws and federal laws, laws setting standards and laws providing funding, laws reinforcing professional prerogatives, laws furthering social goals, and laws promoting market competition. Complying with law is important, but health professionals also should understand that the legal and ethical constraints under which health systems …

Falling Between The Cracks: Understanding Why States Fail In Protecting Our Children From Crime, Michal Gilad

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The article is the first to take an inclusive look at the monumental problem of crime exposure during childhood, which is estimated to be one of the most damaging and costly public health and public safety problem in our society today. It takes-on the challenging task of ‘naming’ the problem by coining the term Comprehensive Childhood Crime Impact or in short the Triple-C Impact. Informed by scientific findings, the term embodies the full effect of direct and indirect crime exposure on children due to their unique developmental characteristics, and the spillover effect the problem has on our society as …

The Ethics Of Medicaid’S Work Requirements And Other Personal Responsibility Policies, Harald Schmidt, Allison K. Hoffman

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Breaking controversial new ground, the Centers for Medicare & Medicaid Services (CMS) recently invited states to consider establishing work requirements as a condition of receiving Medicaid benefits. Noncompliant beneficiaries may lose some or all benefits, and if they do, will incur higher spending if they have to pay for medical care out of pocket. Current evidence suggests work requirements and related policies, which proponents claim promote personal responsibility, can create considerable risks of health and financial harm in vulnerable populations. Concerns about implementing these policies in Medicaid have been widely expressed, including by major physician organizations, and others have examined …

Progressive Antitrust, Herbert J. Hovenkamp

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Several American political candidates and administrations have both run and served under the “progressive” banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a …

Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp

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Why would anyone want to use antitrust law as a wealth distribution device when far more explicit statutory tools are available for that purpose? One feature of antitrust is its open-textured, nonspecific statutes that are interpreted by judges. As a result, using antitrust to redistribute wealth may be a way of invoking the judicial process without having to go to Congress or a state legislature that is likely to be unsympathetic. Of course, a corollary is that someone attempting to use antitrust law to redistribute wealth will have to rely on the existing antitrust statutes rather than obtaining a new …

A Study Of Social Security Disability Litigation In The Federal Courts, Jonah B. Gelbach, David Marcus

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A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency”) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set of procedural rules …

Uncontrolled Experiments From The Laboratories Of Democracy: Traditional Cash Welfare, Federalism, And Welfare Reform, Jonah B. Gelbach

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In this chapter I discuss the history and basic incentive effects of two key U.S. cash assistance programs aimed at families with children. Starting roughly in the 1980s, critics of the Aid to Families with Dependent Children (AFDC) program argued that the program -- designed largely to cut relatively small checks -- failed to end poverty or promote work. After years of federally provided waivers that allowed states to experiment with changes to their AFDC programs, the critics in 1996 won the outright elimination of AFDC. It was replaced by the Temporary Assistance to Needy Families (TANF) program, over which …

Reimagining The Risk Of Long-Term Care, Allison K. Hoffman

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U.S. law and policy on long-term care fail to address the insecurity American families face due to prolonged illness and disability — a problem that grows more serious as the population ages and rates of disability rise. This Article argues that, even worse, we have focused on only part of the problem. It illuminates two ways that prolonged disability or illness can create insecurity. The first arises from the risk of becoming disabled or sick and needing long-term care, which could be called “care-recipient” risk. The second arises out of the risk of becoming responsible for someone else’s care, which …

Compensating The Victims Of Japan’S 3-11 Fukushima Disaster, Eric A. Feldman

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Japan’s March 2011 triple disaster—first a large earthquake, followed by a massive tsunami and a nuclear meltdown—caused a devastating loss of life, damaged and destroyed property, and left hundreds of thousands of people homeless, hurt, and in need. This article looks at the effort to address the financial needs of the victims of the 3/11 disaster by examining the role of public and private actors in providing compensation, describing the types of groups and individuals for whom compensation is available, and analyzing the range of institutions through which compensation has been allocated. The story is in some ways cause for …

The Reverberating Risk Of Long-Term Care, Allison K. Hoffman

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The Fiftieth Anniversary of Medicare and Medicaid offers an opportunity to reflect on how American social policy has conceived of the problem of long-term care. In this essay, based on a longer forthcoming article, I argue that current policies adopt too narrow a conception of long-term care risk, by focusing on the effect of serious illness and disability on people who need care and not on the friends and family who often provide it. I propose a more complete view of long-term care risk that acknowledges how illness and disability reverberates through communities, posing insecurity for people beyond those in …

Health Care Spending And Financial Security After The Affordable Care Act, Allison K. Hoffman

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Health insurance has fallen notoriously short of protecting Americans from financial insecurity caused by health care spending. The Patient Protection and Affordable Care Act (“ACA”) attempted to ameliorate this shortcoming by regulating health insurance. The ACA offers a new policy vision of how health insurance will (and perhaps should) serve to promote financial security in the face of health care spending. Yet, the ACA’s policy vision applies differently among insured, based on the type of insurance they have, resulting in inconsistent types and levels of financial protection among Americans.

To examine this picture of inconsistent financial protection, this Article offers …

Corporate Governance And Social Welfare In The Common Law World, David A. Skeel Jr.

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The newest addition to the spate of recent theories of comparative corporate governance is Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power, an important new book by Christopher Bruner. Focusing on the U.S., the U.K., Canada and Australia, Bruner argues that the robustness of the country’s social welfare system is the key determinant of the extent to which its corporate governance is shareholder-centered. This explains why corporate governance is so shareholder-oriented in the United Kingdom, which has universal healthcare and generous unemployment benefits, while shareholders’ powers are more attenuated in the United States, with its …

The Social Value Of Mortality Risk Reduction: Vsl Vs. The Social Welfare Function Approach, Matthew D. Adler, James K. Hammitt, Nicholas Treich

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We examine how different welfarist frameworks evaluate the social value of mortality risk-reduction. These frameworks include classical, distributively unweighted cost-benefit analysis—i.e., the “value per statistical life” (VSL) approach—and three benchmark social welfare functions (SWF): a utilitarian SWF, an ex ante prioritarian SWF, and an ex post prioritarian SWF. We examine the conditions on individual utility and on the SWF under which these frameworks display the following five properties: i) wealth sensitivity, ii) sensitivity to baseline risk, iii) equal value of risk reduction, iv) preference for risk equity, and v) catastrophe aversion. We show that the particular manner in which VSL …

Welfare And Rights Before The Movement: Rights As A Language Of The State, Karen M. Tani

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In conversations about government assistance, rights language often emerges as a danger: when benefits become “rights,” policymakers lose flexibility, taxpayers suffer, and the poor lose their incentive to work. Absent from the discussion is an understanding of how, when, and why Americans began to talk about public benefits in rights terms. This Article addresses that lacuna by examining the rise of a vibrant language of rights within the federal social welfare bureaucracy during the 1930s and 1940s. This language is barely visible in judicial and legislative records, the traditional source base for legal-historical inquiry, but amply evidenced by previously unmined …

Insurance In Sociolegal Research, Tom Baker

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Insurance has a long history in sociolegal research, most prominently as a window on accident compensation and related tort law in action. Recent work has extended that research, with the result that tort law in action may be the best mapped of any legal field outside criminal law. Sociological research has begun to explore insurance as a form of governance, with effects in many legal fields and across the economy. This essay reviews developments in both bodies of work. Part one examines the relationship between liability insurance and tort law in action using the metaphors of window and frame. Part …

Contingent Valuation Studies And Health Policy, Matthew D. Adler

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This short comment argues that both cost-benefit analysis (CBA) and cost-effectiveness analysis (CEA) should be seen as imperfect tools for evaluating health policy. This is true, not only for extra-welfarists, but even for welfarists, since both CBA and CEA can deviate from the use of social welfare functions (SWF). A simple model is provided to illustrate the divergence between CBA, CEA, and the SWF approach. With this insight in mind, the comment considers the appropriate role of contingent-valuation studies. For full text, please see: http://www.law.upenn.edu/cf/faculty/madler/workingpapers/578A59B6d01.pdf.

Tontines For The Invincibles: Enticing Low Risks Into The Health-Insurance Pool With An Idea From Insurance History And Behavioral Economics, Tom Baker, Peter Siegelman

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Over one third of the uninsured adults in the U.S. below retirement age are between 19 and 29 years old. Young adults, especially men, often go without insurance, even when buying it is mandatory and sometimes even when it is a low cost employment benefit. This paper proposes a new form of health insurance targeted at this group—the “Young Invincibles”—those who (wrongly) believe that they don’t need health insurance because they won’t get sick. Our proposal offers a cash bonus to those who turn out to be right in their belief that they did not really need health insurance. The …

Oil And Water: Mixing Individual Mandates, Fragmented Markets, And Health Reform, Allison K. Hoffman

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With momentum toward national health reform, there is wide support for legislation to include an individual mandate that would require all Americans to carry health insurance. Discussion of the individual mandate has relied largely on whether the mandate will generate universal coverage as a gauge for success. This article challenges the notion that an individual mandate is successful if it leads to universal coverage, revealing a critical problem the individual mandate will face even if all Americans were to have health insurance. To uncover this problem, this article sets out a novel framework that disentangles the three different policy objectives …

Future Generations: A Prioritarian View, Matthew D. Adler

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Should we remain neutral between our interests and those of future generations? Or are we ethically permitted or even required to depart from neutrality and engage in some measure of intergenerational discounting? This Article addresses the problem of intergenerational discounting by drawing on two different intellectual traditions: the social welfare function (“SWF”) tradition in welfare economics, and scholarship on “prioritarianism” in moral philosophy. Unlike utilitarians, prioritarians are sensitive to the distribution of well-being. They give greater weight to well-being changes affecting worse-off individuals. Prioritarianism can be captured, formally, through an SWF which sums a concave transformation of individual utility, rather …

Happiness Research And Cost-Benefit Analysis, Matthew D. Adler, Eric Posner

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A growing body of research on happiness or subjective well-being shows, among other things, that people adapt to many injuries more rapidly than is commonly thought, fail to predict the degree of adaptation and hence overestimate the impact of those injuries on their well-being, and, similarly, enjoy small or moderate rather than significant changes in well-being in response to significant changes in income. Some researchers believe that these findings pose a challenge to cost-benefit analysis, and argue that project evaluation decision-procedures based on economic premises should be replaced with procedures that directly maximize subjective well-being. This view turns out to …

Introducing A "Different Lives" Approach To The Valuation Of Health And Well-Being, Matthew D. Adler, Paul Dolan

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We introduce a new “different lives” survey format, which asks respondents to rank hypothetical lives described in terms of longevity, health, happiness, income, and other elements of the quality of life. In this short paper, we show that the format is of policy relevance whether a mental state, preference satisfaction or extra-welfarist account of well-being is adopted and discuss some of the advantages the format has over standard formats, such as contingent valuation surveys and QALY-type methods. An exploratory survey indicates that the format is feasible and that health and happiness might be more important than income and life expectancy.

Well-Being, Inequality And Time: The Time-Slice Problem And Its Policy Implications, Matthew D. Adler

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Should equality be viewed from a lifetime or “sublifetime” perspective? In measuring the inequality of income, for example, should we measure the inequality of lifetime income or of annual income? In characterizing a tax as “progressive” or “regressive,” should we look to whether the annual tax burden increases with annual income, or instead to whether the lifetime tax burden increases with lifetime income? Should the overriding aim of anti-poverty programs be to reduce chronic poverty: being badly off for many years, because of low human capital or other long-run factors? Or is the moral claim of the impoverished person a …

Child Welfare's Paradox, Dorothy E. Roberts

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No abstract provided.

Policy Analysis For Natural Hazards: Some Cautionary Lessons From Environmental Policy Analysis, Matthew D. Adler

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How should agencies and legislatures evaluate possible policies to mitigate the impacts of earthquakes, floods, hurricanes and other natural hazards? In particular, should governmental bodies adopt the sorts of policy-analytic and risk assessment techniques that are widely used in the area of environmental hazards (chemical toxins and radiation)? Environmental hazards policy analysis regularly employs proxy tests, in particular tests of technological “feasibility,” rather than focusing on a policy’s impact on well-being. When human welfare does enter the analysis, particular aspects of well-being, such as health and safety, are often given priority over others. “Individual risk” tests and other features of …

Privatization And Punishment In The New Era Of Reprogenetics, Dorothy E. Roberts

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No abstract provided.

The Community Dimension Of State Child Protection, Dorothy E. Roberts

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No abstract provided.