Social Welfare Law Commons^™

Against The ‘Safety Net’, Matthew Lawrence

Matthew B. Lawrence

What (If Anything) Can Economics Say About Equity?, Daniel A. Farber

Daniel A Farber

Does economics have anything to teach us about the meaning of fairness? The leading practitioners of law and economics disagree. Judge Richard Posner argues that economics is largely irrelevant to distributive issues. Posner maintains that the most useful economic measure of social welfare is cost-benefit analysis (which he calls wealth maximization). But, he observes, this economic measure "ratifies and perfects an essentially arbitrary distribution of wealth." Given an ethically acceptable initial assignment of wealth, rules based on economic efficiency may have some claim to be considered fair. On the critical issue of distributional equity, however, Posner apparently believes that economics …

Reflections On Disability Discrimination Policy—25 Years, Laura F. Rothstein

Laura Rothstein

No abstract provided.

Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr.

Glynn Lunney

In A Critical Reexamination of the Takings Jurisprudence, I addressed an efficiency problem that arises when the government attempts to change property rights in a manner that burdens a very few for the benefit of the very many. Specifically, in the absence of compensation, the collective action advantage of the few in organizing to oppose the proposed measure will often give them a decided edge against the many. As a result of that advantage, the few will too often be able to persuade the legislature not to act, even when an objective evaluation of the proposal's costs and benefits would …

Narrowing The Digital Divide: A Better Broadband Universal Service Program, Daniel Lyons

Daniel Lyons

Universal service has long been an integral component of American telecommunications policy. As more activities move online, it becomes increasingly important to narrow the digital divide by helping low-income Americans get online and by extending broadband networks into unserved areas.

Unfortunately, the Federal Communications Commission’s reforms are unlikely to help solve this problem. The Commission is repurposing an $8 billion telephone subsidy program to focus instead on broadband networks. But when pressed, the agency admits that it has no proof that the program meaningfully affected telephone adoption rates, and it offers little evidence that it will fare any better at …

Globalization, Inequality & International Economic Law, Frank J. Garcia

Frank J. Garcia

International law in general, and international economic law in particular, to the extent that either has focused on the issue of inequality, has done so in terms of inequality between states. Largely overlooked has been the topic of inequality within states and how international law has influenced that reality. From the perspective of international economic law, the inequality issue is closely entwined with the topics of colonialism and post-colonialism, the proper meaning of development, and globalization. While international economic law has undoubtedly contributed to the rise of inequality, it is now vital that the subject of international economic law be …

Restoring Trade’S Social Contract, Frank J. Garcia, Timothy Meyer

Frank J. Garcia

As we write, the United States, Canada, and Mexico are meeting in Washington, D.C. to renegotiate the North American Free Trade Agreement (NAFTA). These talks—and their possible failure—represent the biggest shift in U.S. economic policy in a generation. Since NAFTA came into force in 1994, it has transformed the North American economy. NAFTA has made possible continent-wide supply chains, in industries like the auto sector, that have reduced costs and allowed American automakers to remain competitive; it has opened markets for American agriculture; it has greatly increased the standard of living in Mexico; and it has reduced consumer prices across …

The Women Feminism Forgot: Rural And Working-Class White Women In The Era Of Trump, Lisa R. Pruitt

Lisa R Pruitt

Putting Distribution First, Robert C. Hockett

Robert C. Hockett

It is common for normative legal theorists, economists and other policy analysts to conduct and communicate their work mainly in maximizing terms. They take the maximization of welfare, for example, or of wealth or utility, to be primary objectives of legislation and public policy. Few if any of these theorists seem to notice, however, that any time we speak explicitly of maximizing one thing, we speak implicitly of distributing other things and of equalizing yet other things. Fewer still seem to recognize that we effectively define ourselves by reference to that which we distribute and equalize. For it is in …

The Economic Justice Imperative For Transactional Law Clinics, Lynnise E. Pantin

Lynnise E. Pantin

The economic, political, and social volatility of the sixties and seventies, out of which clinical legal education was born, has certain mythical qualities for most law students, and perhaps some law professors. America still bears the scars of the economic policies of those previous eras, such as redlining, blockbusting, poverty and urban decay. While the realities of the era may seem out of reach for many of our students, those policies arising out of that era have contributed to the wealth gap in this country, which has worsened over the last twenty years. Now more than ever, society needs social …

The Rehnquist Court & Justice: An Oxymoron?, Erwin Chemerinsky

Erwin Chemerinsky

From the perspective of public interest law, the Rehnquist Court, simply put, is a disaster.

Protective Plan Provisions For Employer-Sponsored Employee Benefits Plans, 18 Marq. Ben. & Soc. Welfare L. Rev. 1 (2017), Kathryn J. Kennedy

Kathryn J. Kennedy

No abstract provided.

Protective Plan Provisions For Employer-Sponsored Employee Benefit Plans, Kathryn J. Kennedy

Kathryn J. Kennedy

Federal case law has provided plan sponsors of the Employee Retirement Income Security Act of 1974 (ERISA) covered plans with the ability to insert plan provisions that are more favorable to the plan sponsor rather than the plan participant or beneficiary (so-called “protective plan provisions”). This Article first examines what is the “plan document” for purposes of ERISA and what protective plan provisions should be considered for insertion into the plan document and its related “instruments.”

Putting Exclusionary Zoning In Its Place: Affordable Housing And Geographical Scale, Christopher Serkin, Leslie Wellington

Christopher Serkin

No abstract provided.

Empathy, Spring, And The Fervorino, Susan Bennett

Susan D. Bennett

No abstract provided.

The Threat Of The Wandering Poor: Welfare Parochialism And Its Impact On The Use Of Housing Mobility As An Anti-Poverty Strategy, Susan Bennett

Susan D. Bennett

This Essay discusses how, if one accepts the premises of mobility-based anti-poverty strategies, the geographical parochialism and structural rigidity of the welfare system undermine mobility goals. The Essay also examines the possibility that current trends in housing policy will undercut anti-poverty goals.

Lost Fidelities, Barry Cushman

Barry Cushman

Owen Roberts was accused of a variety of things in 1937, but “fidelity” was not among them. Justice Harlan Fiske Stone and Professor Felix Frankfurter were among many who accused Roberts of performing, as Frankfurter put it, a jurisprudential “somersault” “incapable of being attributed to a single factor relevant to the professed judicial process.” To Frankfurter, it was “all painful beyond words,” and gave him “a sickening feeling which is aroused when moral standards are adulterated in a convent.” Yet when Roberts announced his retirement from the Court eight years later, Chief Justice Stone, along with now-Justices Frankfurter and Robert …

Welfare Fraud: The Constitution Of Social Assistance As Crime, Janet E. Mosher

Janet Mosher

No abstract provided.

Lawyers And The Secret Welfare State, Milan Markovic

Milan Markovic

This Article suggests that the United States maintains a secret welfare state. The secret welfare state exists because of lawyers’ ubiquitous use of questionable practices in representing clients before benefit-granting government agencies, which enable thousands of individual to collect public benefits who may not qualify for them. This Article focuses in particular on lawyers’ handling of evidence of nondisability in Social Security Disability Insurance (SSDI) proceedings and participation in Medicaid planning. It may be possible that the legal profession’s central role in the distribution of public benefits is an obstacle to a fairer and more transparent social safety net.

Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore

Steven E Gilmore

"The Good Mother": Mothering, Feminism, And Incarceration, Deseriee A. Kennedy

Deseriee A. Kennedy

As the rates of incarceration continue to rise, women are increasingly subject to draconian criminal justice and child welfare policies that frequently result in the loss of their parental rights. The intersection of an increasingly carceral state and federally imposed timelines for achieving permanency for children in state care has had a negative effect on women, their children, and their communities. Women, and their ability to parent, are more adversely affected by the intersection of these gender-neutral provisions because they are more likely than men to be the primary caretaker of their children. In addition, incarcerated women have higher rates …

Through The Doughnut Hole: Reimagining The Social Security Contribution And Benefit Base Limit, Patricia E. Dilley

Patricia E Dilley

The Obama campaign proposal to address Social Security's future financing shortfalls by increasing the Social Security tax base limit only for those making more than $250,000 per year raises the broader question of the function of the base limit from a Social Security program perspective. The public supports increasing the wage base above all other possible avenues for solving long term financing issues, but the problems with the Obama "doughnut hole" proposal are substantial from several perspectives. In this article, the author suggests that the function of the base limit be reconsidered, and the benefit accrual function of the earnings …

Promoting The General Welfare: Legal Reform To Lift Women And Children In The United States Out Of Poverty, Jill Engle

Jill Engle

American women and children have been poor in exponentially greater numbers than men for decades. The problem has historic, institutional roots which provide a backdrop for this article’s introduction. English and early U.S. legal systems mandated a lesser economic status for women. Despite numerous legal changes aimed at combating the financial disadvantage of American women and children, the problem is worsening. American female workers, many in low-paying job sectors, earn roughly twenty percent less than their male counterparts. Nearly forty percent of single mothers and their children subsist below the poverty level. The recession exacerbated this problem, mostly because unemployment …

Surrogacy, Equal Status And Social Welfare Benefits, Mel Cousins

Mel Cousins

In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, Brendan M. Conner

Brendan M. Conner

Salvaging ‘Safe Spaces’: Toward Model Standards For Lgbtq Youth-Serving Professionals Encountering Law Enforcement, Brendan M. Conner

Brendan M. Conner

A Dream Deferred, Ruth-Arlene W Howe

Ruth-Arlene W. Howe

Presentation at the MLK Annual Unity Breakfast, Boston College, January 19, 2005.

The Health Law Partnership: A Medical-Legal Partnership Strategically Designed To Provide A Coordinated Approach To Public Health Legal Services, Education, Advocacy, Evaluation, Research, And Scholarship, Robert Pettignano, Lisa Bliss, Sylvia Caley

Sylvia B. Caley

Low-income children, especially those with chronic disease and other health issues, are among the most vulnerable members of society. The Health Law Partnership, a medical-legal partnership (MLP), was developed to address the legal needs of low-income children and their families living in Georgia and who receive healthcare services from Children's Healthcare of Atlanta. HeLP's creators understood the importance of proactively addressing the social determinants of children's health, many of which have legal antecedents and result from illness and health-related complications caused by socioeconomic factors. Four attorneys saw the close link between poverty and poor health, and understood that the law …

Gift Horses, Choosy Beggars, And Other Reflections On The Role And Utility Of Social Enterprise Law, Cassady V. Brewer

Cassady V. Brewer

The U.S. law of social enterprise is growing rapidly. Since 2008, one-half of all U.S. states have modified their business law to establish special legal forms designed for social enterprise. Meanwhile, even with twenty-five states adopting special laws for social enterprise, the legal debate surrounding social enterprise continues. Rather than rehashing that debate, this essay sets forth the author’s personal perspective on the role and utility of social enterprise. The essay argues that, except in limited circumstances, social enterprise is superior to traditional philanthropy when it comes to solving longstanding humanitarian or environmental problems. U.S. business law thus should continue …

New Markets Tax Credits Stimulate Community Development, Michael Lehmann, Cassady Brewer

Cassady V. Brewer

No abstract provided.