Law Commons^™

States’ Evolving Role In The Supplemental Nutritional Assistance Program, David A. Super

Georgetown Law Faculty Publications and Other Works

States have always been crucial to the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps). Even though the federal government has paid virtually all the program’s benefit costs, state administration has always been indispensable for several reasons. State and local governments pay their staff considerably less than the federal government, making state administration less expensive. States already administer other important antipoverty programs, notably family cash assistance and Medicaid, allowing them to coordinate the programs and minimize repetitive activities. And states have somewhat lower, and less polarizing, political footprints than does the federal government, moderating criticism of the program. In addition, …

Conclusion: A Way Forward, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

Where do we go next? I have three suggestions. One is to enlarge the frame of our work on poverty and race, including a focus on the ever-widening chasm of inequality, and all of it pressing toward the center stage of national attention. A second is to consolidate our work about income, jobs, and cash assistance into a unified frame, which I call a three-legged stool. And the third is to think from a perspective of place, and what that tells us about our antipoverty work.

We need a banner, a message, a theme, a politics for ending poverty. The …

The Kids Are Not Alright: Leveraging Existing Health Law To Attack The Opioid Crisis Upstream, Yael Cannon

Georgetown Law Faculty Publications and Other Works

The opioid crisis is now a nationwide epidemic, ravaging both rural and urban communities. The public health and economic consequences are staggering; recent estimates suggest the epidemic has contracted the U.S. labor market by over one million jobs and cost the nation billions of dollars. To tackle the crisis, scholars and health policy initiatives have focused primarily on downstream solutions designed to help those who are already in the throes of addiction. For example, the major initiative announced by the U.S. Surgeon General promotes the dissemination of naloxone, which helps save lives during opioid overdoses.

This Article argues that the …

Community Lawyering: Introductory Thoughts On Theory And Practice, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

There are several fundamental questions that one might ask in seeking the meaning of the term "community lawyer." Albeit somewhat theoretical, the most basic questions involve delving into exactly what is meant by the term "community." For what, exactly, is the community-lawyer lawyering? Further, once a client has been identified, questions will arise about how the lawyer should relate to that client and about the role the lawyer ought to play in assisting the client to achieve its goals. There is a long and rich literature concerning the latter question but a fairly sparse body of legal writing on the …

Poverty In America: Why Can't We End It?, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

The lowest percentage in poverty since we started counting was 11.1 percent in 1973. The rate climbed as high as 15.2 percent in 1983. In 2000, after a spurt of prosperity, it went back down to 11.3 percent, and yet 15 million more people are poor today.

At the same time, we have done a lot that works. From Social Security to food stamps to the earned-income tax credit and on and on, we have enacted programs that now keep 40 million people out of poverty. Poverty would be nearly double what it is now without these measures, according to …

Community Economic Development And The Paradox Of Power, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

This article starts from the premise that poverty is a growing problem in the United States. Intergenerational poverty, the entrenchment of a class of very poor people, is a major sub set of that problem and is tied very closely to the issue of race. The author claims that missing in the fight by the poor and their allies against stratified poverty is the creation and utilization of power. This paper examines the disparate ways in which commentators have defined power. It suggests that those seeking to obtain power must understand the concept’s varying meanings and direct their activities to …

Changing The Narrative Of Child Welfare, Matthew I. Fraidin

Georgetown Law Faculty Publications and Other Works

In child welfare, the difference we can make as lawyers for parents, children, and the state, and as judges, is to prevent children from entering foster care unnecessarily. And we can end a child’s stay in foster care as quickly as possible. To do that, we have to fight against a powerful narrative of child welfare and against the accepted “top-down” paradigm of legal services.

In this essay, Professor Fraidin suggests that we can achieve our goals of limiting entries to foster care and speeding exits from it by looking for the strengths of the people involved in our cases, …

Cultivating Justice For The Working Poor: Clinical Representation Of Unemployment Claimants, Colleen F. Shanahan

Georgetown Law Faculty Publications and Other Works

The combination of current economic conditions and recent changes in the United States’ welfare system makes representation of unemployment insurance claimants by clinic students a timely learning opportunity. While unemployment insurance claimants often share similarities with student attorneys, they are unable to access justice as easily as student attorneys, and as a result, face the risk of severe poverty. Clinical representation of unemployment claimants is a rich opportunity for students to experience making a difference for a client, and to understand the issues of poverty and justice that these clients experience along the way. These cases reveal that larger lessons …

The Rise And Fall Of The Implied Warranty Of Habitability, David A. Super

Georgetown Law Faculty Publications and Other Works

Growing concern about poverty in the late 1960s produced two sweeping legal revolutions. One gave welfare recipients rights against arbitrary eligibility rules and benefit terminations. The other gave low-income tenants recourse when landlords failed to repair their homes. The 1996 welfare law exposed the welfare rights revolution's frailty. Little noticed by legal scholars, the tenants' rights revolution also has failed, and for broadly similar reasons.

Withholding rent deliberately to challenge landlords' failure to repair is unduly risky for most tenants in ill-maintained dwellings: either moving to better housing is a better option or the risk of retaliation is too great. …

The Case For Social Rights, Virginia Mantouvalou

Georgetown Law Faculty Publications and Other Works

This is part of the book Debating Social Rights (Oxford, Hart Publishing, 2010) where I am making the case for social rights and Professor Conor Gearty (LSE) is making the case against social rights. This paper argues that social and economic rights, defined as rights to the satisfaction of basic needs, are constitutional essentials at domestic level and claims of the highest priority at supranational level. Their inadequate legal protection in national and supranational orders is not justified. Social rights have common foundations with civil and political rights, but have been neglected in law because of Cold War ideologies. The …

The Missing Jurisprudence Of The Legislated Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Does the fourteenth Amendment and its Equal Protection Clause — the promise that "no state shall deny equal protection of the laws" — have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts — the adjudicated Constitution — or what I propose to call the …

Socioeconomic Disparities In Health: A Symposium On The Relationships Between Poverty And Health, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The disparities in health between the rich and poor are so striking, and the results so dire, that reducing the gap is an ethical imperative.

A strong and consistent finding of epidemiological research is that socioeconomic status (SES) is correlated with morbidity, mortality, and functioning. SES is a complex combination of income, education, and occupation. Theorists posit that material disadvantage, diminished control over life's circumstances, and lack of social acceptance all contribute to poor health outcomes. The relationship between SES and health often is referred to as a "gradient" because of the graded and continuous nature of the association; health …

Katrina, The Constitution, And The Legal Question Doctrine, Robin West

Georgetown Law Faculty Publications and Other Works

In this paper I will not develop the case for constitutionally protected welfare rights - I have tried to do that elsewhere. Instead, I want to explore the tension between what I will take to be at least a plausible account of the state's Constitutional obligations to the poor, and what seems to me as at least equally self-evident, to wit, that no American court will discover and then impose such Constitutional obligations upon recalcitrant state or federal legislators. My conclusion will be pragmatic. I want to urge those who feel likewise regarding the Constitutional obligations of state actors, to …

Response To State Action And A New Birth Of Freedom, Robin West

Georgetown Law Faculty Publications and Other Works

I have just a few comments. The first comment is a contribution to the ''analytic" question posed by Professor Black's work and made explicit by Professors Peller and Tushnet's paper. To make the case for the constitutional status of welfare rights, I do not think it is sufficient-although it may well be necessary-to show that the "state action" problem is merely a pseudo-problem, whatever the reason for finding it not to be a problem. I do not agree with one of the claims put forward by Peller and Tushnet,' that Black's perceptive analysis of the state action problem in his …

The New Privacy, Paul M. Schwartz, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews Overseers of the Poor: Surveillance, Resistance and the Limits of Privacy John Gilliom (2001).

In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an "age of governmental largess," a new property right in governmental benefits had to be recognized. He called this form of property the "new property." In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. …

Tanf Reauthorization: Is Congress Acting On What We Have Learned?, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

There is only one sure way to make something happen in public policy and in politics, and that is to organize. Sometimes external events-the Great Depression, World War II, Vietnam, Watergate, September 11th, Enron, and MCI WorldCom-will make things happen of their own accord. But we can't wait for events to create opportunity, and many such stimuli are in fact things we don't want to happen. So it is up to us. And the time for organizing is not just when an issue is at the forefront. Organizing is needed to build interest and support on issues over a longer …

A Goldilocks Account Of Judicial Review?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

According to Professor Christopher Eisgruber, judicial review of the sort embedded in United States constitutional practice is a practical mechanism for implementing the Constitution's commitment to self-government. "The justices ... make a distinctive contribution to representative democracy" because they are "better positioned [than elected officials] to represent the people's convictions about what is right." Judges can articulate "a conception of justice with which Americans in general [can] plausibly identify themselves. "

I will focus here on two themes in Professor Eisgruber's argument. The first theme can be found in many works of constitutional theory - the construction of a strong …

Poverty And Welfare Policy In The Post-Clinton Era, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

This is an important time to talk about people in need. There have been major changes recently in public policy toward those in need, and we have seen enough of their effect to be able to discuss the next steps. We have a new President and Congress. A recession is looking more probable by the day. And the 1996 welfare law is coming up for reauthorization in 2002. So this is a good time to look at how we are doing and what we need to do.

A Conversation On Federalism And The States: The Balancing Act Of Devolution, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

If you consider whether there might be a national definition of benefit levels in welfare, you might well ask whether there is a state-by-state difference in people's needs. There are some regional differences in cost of living, but, otherwise, you eat, you need shelter, and so on. The history of disability policy is very interesting in this regard because from 1935 until 1972 (apart from the addition of social security disability in the 1950s), disability was handled as a welfare category. There were separate welfare programs for the aged, blind, and the disabled, and they were structured the way Aid …

The Market For Medical Ethics, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

At the core of Kenneth Arrow’s classic 1963 essay on medical uncertainty is a claim that has failed to carry the day among economists. This claim—that physician adherence to an anti-competitive ethic of fidelity to patients and suppression of pecuniary influences on clinical judgment pushes medical markets toward social optimality—has won Arrow near-iconic status among medical ethicists (and many physicians). Yet conventional wisdom among health economists, including several participants in this symposium, holds that this claim is either naïve or outdated. Health economists admire Arrow’s article for its path-breaking analysis of market failures resulting from information asymmetry, uncertainty, and moral …

Dc Consortium Of Legal Service Providers: Legal Services 2000 Symposium, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

My main point is to urge you to the see what is possible in the way of what I might call a public health approach to lawyering for the poor. In a public health approach you find something that has polluted the river and you clean it up at its source instead of just treating its victims one by one. In legal and societal terms, when we are discussing why so many children are growing up poor and dying a slow death of disappointment, the challenge is to think about it in a public health way. Of course we cannot …

Is Progressive Constitutionalism Possible?, Robin West

Georgetown Law Faculty Publications and Other Works

Progressivism is in part a particular moral and political response to the sadness of lesser lives, lives unnecessarily diminished by economic, psychic and physical insecurity in the midst of a society or world that offers plenty. This insecurity is unjust and should end; the suffering should be alleviated, and those lives should be enriched. To do so must be one of the goals of a morally just or justifiable state. Not all suffering and not all lesser lives, of course, give rise to such a response. The suffering attendant to accident, disease, war and happenstance is neither entirely chargeable to …

Federalism, Welfare Reform And The Minority Poor: Accounting For The Tyranny Of State Majorities, Sheryll D. Cashin

Georgetown Law Faculty Publications and Other Works

The ideals of federalism contributed significantly to the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which repealed the AFDC entitlement program and devolved broad authority to the states to design and administer programs for welfare reform. Professor Cashin challenges the federalist, a priori assumption that states are the natural situs of policy authority concerning the poor. She argues that the Act is likely to yield harmful consequences for the poor-especially the minority poor-because the political economy of state decisionmaking is more hostile to redistributive aims than is that of national decisionmaking.

The Article tests the …

Foreword: Federalism And Anti-Federalism As Civil Rights Tools, Charles F. Abernathy

Georgetown Law Faculty Publications and Other Works

The focus on Civil Rights and the Supreme Court 1994 Term in this issue of the Howard Law Journal has one relatively consistent underlying theme-the role of federalist and anti-federalist arguments in the formulation of civil rights policy. As you might expect, there is not much dispute among the authors about the proper goals of civil rights law, for virtually every author in this issue is in one sense or another a traditionalist on policy... What separates the authors is their instrumentalist arguments; that is, how they would accomplish their goals...Some are traditional federalists, supporting the federal role for civil …

Murdering The Spirit: Racism, Rights, And Commerce, Robin West

Georgetown Law Faculty Publications and Other Works

Patricia Williams' The Alchemy of Race and Rights: The Diary of a Law Professor, is an eloquent, profoundly original, and often brilliant collection of interdisciplinary essays and stories concerning the impact of racism and poverty on the human spirit; the historic and continuing role of law and legal institutions in defining, facilitating, and perpetuating those harms; and the possibilities and dangers imminent in the attempt to use law to effect a remedy for them. This is a book that we should celebrate: it reminds us that books are occasionally very, very important, that reading can be transformative, and that writing …