Social Welfare Law Commons^™

Four Reforms For The Twenty-First Century, Barry C. Scheck

Articles

What follows are my top four suggestions for judicial action and advocacy that can result in urgently needed and readily achievable reforms. Ass the American Judicature Society and its members consider their agenda and mission for the coming years, each of these issues deserves their support.

Reevaluating Administrative Evidence Policy: The Case For Two Exclusionary Rules At Social Security Administrative Hearings, Max Bookman

Cardozo Public Law, Policy & Ethics Journal

The note advocates for the adoption of two specific exclusionary rules in Social Security Administration (SSA) disability hearings to address fairness concerns while maintaining efficiency. It argues that the current process, which prioritizes efficiency over the ability to cross-examine evidence, can lead to unfair outcomes for claimants. The proposed rules aim to ensure claimants can challenge evidence, promoting a fairer process without overly burdening the system. The note challenges the traditional view that exclusionary rules are unnecessary in administrative hearings, emphasizing the need for a balance between efficiency and fairness.

Comparativist-Structural Approaches To Interpretation Of The Post-Obamacare Spending Power, Michelle Biddulph, Dwight G. Newman

Cardozo Journal of International and Comparative Law

The U.S. Supreme Court's decision on the Affordable Care Act (ACA) has significant implications for the federal spending power, a topic that has received limited scholarly attention. The article argues that understanding this aspect of the ACA ruling is crucial for comprehending its impact on future federal programs and legislative approaches. By examining the spending power frameworks in Canada and Australia, the article highlights how different federal systems balance central authority with regional autonomy, offering valuable lessons for the U.S. legal framework.

Anatomy Of An Aggregate Settlement: The Triumph Of Temptation Over Ethics, Lester Brickman

Articles

In an aggregate settlement, usually of a mass tort claim, a defendant agrees to pay a specific dollar amount to be divided up by the lawyer among her multiple clients which may number in the hundreds and even thousands. Each client, therefore, is in competition with all of the lawyer’s other clients suing the same defendant for a share of the fixed sum. Rule 1.8(g) of the ABA Rules of Professional Conduct requires that each client give their informed consent to their allocation. To facilitate the settlement and the often quite substantial contingency fees to be earned, lawyers may mislead …

Guardianship For Persons With Mental Illness - A Legal And Appropriate Alternative?, Leslie Salzman

Articles

The article critiques the U.S. guardianship system for individuals with psychosocial disabilities, arguing that it often unnecessarily restricts their autonomy by removing their legal right to make decisions. It advocates for supported decision-making models as a less restrictive alternative, aligning with the Americans with Disabilities Act (ADA) and the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The analysis emphasizes the importance of maximizing integration and participation in social, economic, and civic life, while highlighting the need for safeguards to ensure effective support without undue bureaucratic complexity.

What Went Wrong? Why Family Preservation Programs Failed To Achieve Their Potential, Steven M. Cytryn

Cardozo Journal of Equal Rights & Social Justice

The failure of family preservation programs in the child welfare system stems from structural and legal shortcomings, including inadequate funding, unclear guidelines, and insufficient oversight. These issues, compounded by the Supreme Court's Suter v. Artist M. decision, which undermined the enforceability of the "reasonable efforts" standard, have led to inconsistent implementation and reduced accountability. To address these challenges, the article advocates for reforms such as aligning funding incentives with family preservation goals, establishing clear program standards, and distinguishing between neglect caused by poverty and other forms of maltreatment. By implementing these changes, the child welfare system can better support families …

Rethinking Guardianship (Again): Substituted Decision Making As A Violation Of The Integration Mandated Of Title Ii Of The Americans With Disabilities Act, Leslie Salzman

Articles

In every state, when an adult has a diminished capacity to make decisions about personal affairs or property management, a court may transfer the individual’s right to make decisions to a guardian. This Article argues that, in most cases, it would be preferable to support decision making rather than supplant it through guardianship, and then seeks to locate a right to receive such support as a less restrictive alternative to the substituted decision making that characterizes guardianship.

Building on the reasoning in Olmstead v. L.C. and subsequent decisions interpreting the Americans with Disabilities Act’s integration mandate, this Article argues that …

Family-Centered Approach To Providing Comprehensive Asthma Care Services: The Harlem Family Asthma Center, Vincent E. Hutchinson, Lucille L. Lebovitz, Jennifer L. Northridge, Mary E. Northridge, Rubiahna L. Vaughn, Roger D. Vaughan

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Mitigating Disaster: A Communitarian Response, Robert M. Ackerman

Cardozo Journal of Conflict Resolution

In this essay, I present a communitarian view as to how we might best respond to disaster, and in particular, to losses suffered by the direct victims of disaster. My focus will be on financial compensation to disaster victims, which admittedly occupies only a small part of the spectrum of disaster response. Emergency "first responder" activities are matters about which I have no expertise; volunteering at my local food bank hardly qualifies me to advise FEMA or the Red Cross. The blunders for which these organizations have recently been responsible are apparent, and so are some of their causes, but …

Introduction, Rachel Kalman

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Tax And Economic Policy Responses To The Medicaid Long-Term Care Financing Crisis: A Behavioral Economics Approach, Diane Lourdes Dick

Cardozo Public Law, Policy & Ethics Journal

The article examines the escalating strain on Medicaid due to rising long-term care costs and an aging population, emphasizing the ineffectiveness of current policies promoting private insurance. It critiques traditional economic models for neglecting behavioral factors like emotional resistance to planning for aging and underestimating future care needs. The analysis concludes that voluntary measures, such as tax incentives and partnership programs, are insufficient and advocates for a universal compulsory program to ensure adequate preparation for long-term care, thereby reducing Medicaid reliance.

The Safety Net Revisited? The Continuing Impact Of Welfare Reform In New York City And Nationwide, Laura R. Goldin

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Social Security Administration's New Disability Adjudication Rules: A Significant And Promising Reform, Frank S. Bloch, Jeffrey S. Lubbers, Paul R. Verkuil

Articles

The article evaluates the Social Security Administration's (SSA) new Disability Service Improvement (DSI) process, introduced in 2006, which aims to address inefficiencies and inconsistencies in disability adjudication. The reforms include key innovations such as Quick Disability Determinations (QDDs), the Medical and Vocational Expert System (MVES), and the replacement of the Appeals Council with the Decision Review Board (DRB). While the reforms represent a significant and promising step toward improving the disability determination process, the article identifies remaining concerns, particularly regarding the role of the Federal Reviewing Official (FRO) and rules for submitting evidence at administrative hearings.

Bad Faith: Race, Religion And The Reformation Of Welfare Law, Richard Hardack

Cardozo Public Law, Policy & Ethics Journal

The article critically examines the cultural, theological, and legal underpinnings of welfare policies in the United States, arguing that these policies are deeply influenced by racialized and gendered stereotypes. It contends that conservative and liberal thinkers alike have framed welfare as a threat to capitalist values, often justifying this stance through theological and postmodernist ideas. The analysis highlights how welfare is constructed as a declaration of dependence, contradicting the ideals of self-reliance and market-driven solutions. The article also critiques the legal system for failing to recognize welfare as a fundamental right, instead treating it as a privilege subject to state …

Buying White Beauty, Imani Perry

Cardozo Journal of Equal Rights & Social Justice

The article argues that the global phenomenon of skin-bleaching is a manifestation of structural inequality rooted in race, poverty, and globalization. It critiques how the marketing and use of skin-whitening products perpetuate racial hierarchies and reflects broader societal power dynamics, emphasizing the need for legal and regulatory responses to address the health and social implications of this practice.

Improving Educational Outcomes For Children In Foster Care: Reading The Mckinney-Vento Act's "Awaiting Foster Care Placement" Provision To Include Children In Interim Foster Care Placements, Sarah Hudson-Plush

Cardozo Journal of Equal Rights & Social Justice

The note argues that the term "awaiting foster care placement" under the McKinney-Vento Homeless Assistance Act should be defined to include children in interim foster care placements to ensure educational stability and access to necessary protections.

Privatizing Due Process, Paul R. Verkuil

Articles

The article explores the concept of "private due process," arguing that while traditional due process protections under the Constitution require state action, privatization of government functions creates gaps in procedural safeguards. It examines how state laws, federal regulations, and alternative dispute resolution (ADR) mechanisms can fill these gaps and proposes a "Private Administrative Procedure Act" (PAPA) to ensure procedural fairness when government functions are delegated to private entities.

Issues Surrounding Initial Intervention, Martin Guggenheim

Cardozo Public Law, Policy & Ethics Journal

The article critiques the narrow focus of modern child welfare policy on rescuing children from abusive or neglectful families, arguing that this approach neglects the root causes of child welfare issues, particularly poverty. Using the metaphor of a stranger who refuses to merely rescue babies from a stream and instead seeks to address the source of the problem upstream, the article contends that child welfare policy must expand its scope to address systemic issues like poverty and inadequate social support for families. Current policy, the article argues, prioritizes adoption and foster care over preventing the conditions that lead to child …

Under-Intervention Versus Over-Intervention, Dorothy Roberts

Cardozo Public Law, Policy & Ethics Journal

The article argues that the racial disparity in the U.S. child welfare system, particularly the overrepresentation of Black and brown children, is not merely a result of societal conditions but is deeply rooted in systemic bias and policy choices. The child welfare system disproportionately targets poor, Black families, often removing children for reasons related to poverty rather than severe abuse or neglect. This disparity perpetuates harm to families and communities, contradicting principles of democracy and human rights. The article calls for a shift in focus from debating whether the causes of disparity are internal or external to addressing the systemic …

Opening Remarks: Advocating For Change, Kurt Mundorff

Cardozo Public Law, Policy & Ethics Journal

The article critiques the Child Abuse Prevention and Treatment Act (CAPTA) for focusing narrowly on parental responsibility while neglecting broader societal factors like poverty and racism. It highlights the challenges in predicting child abuse and the negative outcomes of foster care, arguing that the system's approach is flawed and in need of reform.

Reforming The Child Welfare System, Marcia Robinson Lowry

Cardozo Public Law, Policy & Ethics Journal

The article argues that child welfare systems in the United States are failing to meet the needs of children and families, particularly poor and marginalized ones, and that litigation is an essential tool for driving systemic reform. It highlights the ineffectiveness of current policies, the lack of political will and accountability, and the critical role of class action lawsuits in exposing systemic failures and securing resources and reforms.

Under-Intervention Versus Over-Intervention, Elizabeth Bartholet

Cardozo Public Law, Policy & Ethics Journal

The article argues that the U.S. child protection system is characterized by under-intervention, failing to adequately protect children from abuse and neglect while also neglecting to provide sufficient support to families. The author advocates for a more interventionist approach, emphasizing both early support for families and the removal of children from dangerous environments when necessary. This stance contrasts with other countries, such as those adhering to the United Nations Convention on the Rights of the Child, which places greater responsibility on the state to protect children. The author also highlights systemic issues of racial and socioeconomic disparities in foster care …

Under-Intervention Versus Over-Intervention, David Lansner

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Alternative Approaches To Judicial Review Of Social Security Disability Cases, Paul R. Verkuil, Jeffrey S. Lubbers

Articles

The article evaluates proposals for reforming the judicial review process for Social Security disability determinations, highlighting inefficiencies and variability in the current system. It compares the Social Security Administration (SSA) adjudication process with the Department of Veterans Affairs (VA) appeals system, emphasizing the need for a specialized court to address growing caseloads and improve decisional consistency. The analysis advocates for the creation of a Social Security Court, modeled after the Court of Appeals for Veterans Claims, to enhance uniformity, reduce delays, and alleviate the burden on federal courts.

Notes On The Clerical Body Of The Law, Lior Barshack

Cardozo Law Review

No abstract provided.

Nietzschean Critique And Philosophical Hermeneutics, Francis J. Mootz Iii

Cardozo Law Review

No abstract provided.

From Genes, Marriage And Money To Nurture: Redefining Fatherhood, Nancy E. Dowd

Cardozo Journal of Equal Rights & Social Justice

The essay argues that fatherhood should be redefined based on nurturing actions rather than genetic or marital status. It critiques the increasing reliance on genetic ties for legal definitions and advocates for a shift towards recognizing fatherhood through active caregiving and emotional support, emphasizing the importance of nurturing over economic roles.

A Semiotics Of Critique, Duncan Kennedy

Cardozo Law Review

No abstract provided.

Difficult Maneuvers In Discourse Against Latina Immigrants In The United States, Josh Price

Cardozo Journal of International and Comparative Law

The article critiques the tendency to homogenize violence against women, emphasizing the importance of recognizing its diverse forms and contexts. It focuses on the experiences of immigrant Latinas, particularly those in abusive relationships, and explores how legal, cultural, and ideological factors uniquely constrain their options. By examining the work of a Latina activist, the analysis highlights the need to address the intersection of gender, immigration, and domestic violence through a more nuanced lens. The article advocates for structural changes to empower immigrant women and challenge the existing legal and cultural frameworks that perpetuate their subjugation.

The Nature And Structure Of The State, Hermann Heller

Cardozo Law Review

The question of the "purpose" of the state has been a permanent and fundamental problem of all theories of the state ever since Aristotle opened his Politics with the theory of the purpose of the state and placed this sentence at its head: pasa koinonia agathou tivos heneka sunesteken. It was left to the Romantics to contest for the first time the appropriateness of this question and to maintain that the state "just as the plant and the animal" is selfdirected. From that time on, theories have neglected the question of the purpose of the state. They decline to …