Social Welfare Law Commons^™

A Home Of Its Own: The Role Of Poverty Law In Furthering Law Schools' Mission, Marie Failinger

Faculty Scholarship

This author argues that poverty advocates who are willing to carefully attend to their law school’s mission and vision, and to give careful thought to how poverty law may play an important role in achieving that vision, may win a more lasting place for poverty law in the curriculum than it has heretofore managed to achieve in most law schools. This article will argue that poverty law can be a key piece in the curriculum of law schools who define their mission, at least in part, as educating lawyers according to one of five paradigms: 1) lawyers as public citizens …

The Dual Path Initiative Framework, Elizabeth Garrett, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.

Mutual Dependency In Child Welfare, Clare Huntington

Faculty Scholarship

The child welfare system is in need of fundamental reform. To the great detriment of parents and children, in the current system the state waits for a crisis in a family and then intervenes in a heavy-handed fashion. The state pays scant attention to the prevention of child abuse and neglect. This Article argues that the principal conceptual barrier to the adoption of a prevention-oriented approach to child welfare is the dominant conception of family autonomy, which venerates freedom from state control. This Article proposes a novel reconception of family autonomy that encourages engagement with the state, rather than simply …

Contract Law And Distribution In The Age Of Welfare Reform, Daniela Caruso

Faculty Scholarship

This Article tracks the ongoing adaptation of U.S. contract law to the 1990s’ contraction of the welfare state. Some courts strive to compensate for the shortage of welfare services and to pursue redistributive goals. This Article provides examples of this trend and then analyzes the non-linear relation between doctrines, judicial redistribution, and welfare politics in both case law and scholarship. Finally, this Article discusses the role of socially sensitive judicial discourse in light of contemporary welfare politics and explains its continuing importance.

Sidestepping Lassiter On The Path To Civil Gideon: Civil Douglas, Steven D. Schwinn

Faculty Scholarship

Civil Gideon advocates have at each turn faced the scourge of Lassiter v. Department of Social Services, which established (apparently out of whole cloth) a presumption that indigent litigants are entitled to appointed counsel only when physical liberty is at stake. This article proposes side-stepping that presumption by seeking a right to counsel on appeal via Douglas v. California, not a right to counsel at trial via Gideon v. Wainwright. Once established, a civil right to counsel on appeal would presage the inevitable downfall of Lassiter and the establishment of Civil Gideon. This article poses the argument …

Cause Lawyering And Social Movements: Can Solo And Small Firm Practitioners Anchor Social Movements?, Brenda Bratton Blom

Faculty Scholarship

As the demand for affordable legal services grows, law schools and the legal profession struggle to respond. By examining lessons from successful social movements in the last century, Cause Lawyering and Social Movements: Can Solo and Small Firm Practitioners anchor Social Movements looks at the Law School Consortium Project and its potential to participate in and anchor the social movements of our time. The collaboration of the law schools, networks of solo and small firm attorneys and activists at the local, regional and national level provide key elements for powerful change given the technological developments of the 21st century.

Rights Myopia In Child Welfare, Clare Huntington

Faculty Scholarship

For decades, legal scholars have debated the proper balance of parents' rights and children's rights in the child welfare system. This Article argues that the debate mistakenly privileges rights. Neither parents' rights nor children's rights serve families well because, as implemented, a solely rights-based model of child welfare does not protect the interests of parents or children. Additionally, even if well-implemented, the model still would not serve parents or children because it obscures the important role of poverty in child abuse and neglect and fosters conflict, rather than collaboration, between the state and families. In lieu of a solely rights-based …

The Return Of The Ring: Welfare Reform’S Marriage Cure As The Revival Of Post-Bellum Control, Angela Onwuachi-Willig

Faculty Scholarship

In 1996, the United States Congress began its imposition of a marital solution to poverty when it enacted the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA"). Nearly ten years later, Congress has strengthened its commitment to marriage as a cure for welfare dependency with proposals such as the Personal Responsibility, Work, and Family Promotion Act of 2005. If passed, this bill would provide 1.5 billion dollars for pro-marriage programs and require each state to explain how its welfare program will encourage marriage for single mothers who receive public aid. With these proposals, Congress has continued to construct poverty as …

Encouraging Moderation In State Policies On Collecting Food Stamp Claims, David A. Super

Faculty Scholarship

Regulations issued by the Food and Nutrition Service, U.S. Department of Agriculture in July 2000 promote efficient and effective food stamp claims collection by the states. These regulations give states significant flexibility in tailoring their procedures on filing claims. States can incorporate waiver and compromise policies that increase efficiency and can serve low-income households.

Are Rights Efficient? Challenging The Managerial Critique Of Individual Rights, David A. Super

Faculty Scholarship

This Article contends that enforceable individual rights can improve the efficiency of government operations. The last decade has seen enforceable individual rights eliminated in a wide range of areas, from welfare to the treatment of immigrants and prisoners in U.S. jails to, most recently, the treatment of prisoners in Abu Ghraib and elsewhere overseas. In most instances, opponents of enforceable individual rights have quarreled little with the substantive norms underlying these rights. Instead, they have argued that enforceable legal rights would unduly burden government administration. Supporters of individual rights have tended to concede that they are inefficient, arguing instead that …

Improving Fairness And Accuracy In Food Stamp Fraud Investigations: Advocating Reform Under Food Stamp Regulations, David A. Super

Faculty Scholarship

Some state food stamp agencies are overly aggressive in pursuing charges that claimants have committed intentional program violations. Just as failure to pursue allegations of fraud can undermine the Food Stamp Program’s goals, so can intimidation of claimants. States should take care to follow appropriate procedures in their investigations, and Food and Nutrition Service regulations offer ample grounds to advocate fair treatment of clients. Four key principles should guide states’ antifraud efforts.

Toward A More Expansive Welfare Devolution Debate, Steven Schwinn

Faculty Scholarship

Leading up to and in the wake of national welfare reform, commentators, scholars, and advocates debated one of the key ingredients in the 1996 legislation: devolution of responsibility for the design and administration of welfare from the federal government to the states. Pro-devolutionists argued that devolution would create 50 state welfare experiments, would result in welfare programs tailored to the unique needs of individual states, and would lead to a race to the top in the quality of welfare programs. Anti-devolutionists argued that devolution would encourage states to compete to repel welfare recipients, to avoid becoming welfare magnets, and, ultimately, …

Housing First' For The Chronically Homless: Challenges Of A New Service Model, Nestor M. Davidson

Faculty Scholarship

Increasingly in recent years, policymakers have focused their efforts on ending chronic homelessness and, in particular, on individuals grappling with mental illness, substance abuse, and similar challenges. Central to this effort has been the rise of a new model of service provision called Housing First. Housing First reverses the long-standing practice of conditioning housing on compliance with treatment plans or other service requirements, instead providing immediate independent living for chronically homeless individuals with dual or multiple diagnoses and only then making intensive services available. This Commentary reviews this important policy shift and explores some conceptual and practical challenges in moving …

A Sturdy Rogue, Bruce K. Miller

Faculty Scholarship

The Author discusses the Poor Laws in the times of the Tudor monarchs, known to us at the Elizabethan Poor Laws. The Author discusses the Oakley case which shows the durability and power of our Elizabethan heritage in shaping a special law of poor families; the very venerability of this heritage suggests that it must play an important social role.

Privatization As Delegation, Gillian E. Metzger

Faculty Scholarship

Recent expansions in privatization of government programs mean that the constitutional paradigm of a sharp separation between public and private is increasingly at odds with the blurred public-private character of modern governance. While substantial scholarship exists addressing the administrative and policy impact of expanded privatization, heretofore little effort has been made to address this disconnect between constitutional law and new administrative reality. This Article seeks to remedy that deficiency. It argues that current state action doctrine is fundamentally inadequate to address the constitutional challenge presented by privatization. Current doctrine is insufficiently keyed to the ways that privatization involves delegation of …

Language Matters: Designing State And County Contracts For Services Under Temporary Assistance For Needy Families, Eileen Sweeney, Barbara L. Bezdek, Sharon Parrott, Carol W. Medaris, Cary Lacheen

Faculty Scholarship

No abstract provided.

Florida's Foster Care System Fails Its Children, Timothy L. Arcaro

Faculty Scholarship

This article will attempt to draw attention to the pervasive problem of child sexual abuse in foster care by identifying circumstances that contribute to sexual victimization. Hopefully the discussion will illuminate the plight of child victims of sexual abuse and generate discourse on a new paradigm of protection initiatives for foster children. Part I of the article will explain child protection proceedings and how children enter the foster care system. Part II will describe common characteristics of state foster care systems. Part III will discuss traditional notions of child sexual abuse and their illusory application in the context of sexual …

Lena Olive Smith: A Minnesota Civil Rights Pioneer, Ann Juergens

Faculty Scholarship

Lena Olive Smith and the National Association for the Advancement of Colored People (NAACP) created a spirited partnership in the public interest during the 1920s and 1930s. Throughout their long collaboration, this woman lawyer, her clients, and the Minneapolis branch of a national grassroots organization faced similar challenges: to stay solvent, to end segregation and increase equality, and to live with dignity. This article is divided into four sections. The first three roughly correspond with stages in Smith’s life and work. Part II briefly chronicles Smith’s first thirty six years, 1885 to 1921, as a single African-American woman in the …

Unemployment Insurance And Wealth Redistribution, Gillian Lester

Faculty Scholarship

This Article evaluates the merit of liberalizing unemployment insurance eligibility as a means to achieve progressive wealth redistribution-an idea that has recently gained popularity among policymakers and legal scholars. Unemployment insurance (UI) provides temporary, partial wage replacement to workers who suffer unexpected job loss, but it tends to exclude workers who have very low wages or hours of work, or who quit for reasons considered "personal" (for example, to accommodate family demands). Professor Lester argues that while redistribution to workers who are poor or who have caregiving obligations is a desirable goal, expanding UI is a poor way to do …

Taking Care, Katherine M. Franke

Faculty Scholarship

Care must be taken when human needs are expressed in the odd dialect of legal rights. This delicate act of translation – from private need to public obligation – demands acute sensitivity to the ways in which public responsibility inaugurates a new and complex encounter with a broad array of public preferences that deprive dependent subjects of primary stewardship over the ways in which their needs are met. Both Martha Fineman and Joan Williams have taken on the difficult project of making the ethical and political case for transforming dependency and care – from private or domestic need to public …

Unmasking The Stranger American Welfare Residency Rules And The Encounter With The Other, Marie Failinger

Faculty Scholarship

One American welfare doctrine that refuses to die embarrasses the American optimist-modernist credo that time always brings progress. That doctrine, most recently resurrected in President Clinton's welfare reform legislation, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), permits states to impose what euphemistic bureaucrats call a "durational residency requirement" on impoverished citizens seeking government assistance to provide food, clothing, and shelter for their families. Where this rule once meant that impoverished citizens could be denied all welfare benefits for up to a year after they moved to a new state, in its current less draconian form, the …

Caught Between Two Systems: How Exceptional Children In Out-Of-Home Care And Denied Equality In Education, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Government Of The Good , Abner S. Greene

Faculty Scholarship

Webster's definition of the noun "good" begins: "something that possesses desirable qualities, promotes success, welfare, or happiness, or is otherwise beneficial." Whether government should promote the good, and in particular whether government should use its powers of persuasion-its "speech," if you will-to promote contested views of the good, is the subject of this Article. I will argue that, as a matter of political theory, government in a liberal democracy not only may promote contested views of the good, but should do so, as well. Further, nothing in our constitutional jurisprudence demands otherwise, assuming certain conditions are met. In taking these …

The Challenge To Financial Regulators Posed By Social Security Privatization, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Ban On Welfare For Felony Drug Offenders: Giving A New Meaning To 'Life Sentence', Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Can Poverty Lawyers Play Well With Others? Including Lawyers In Integrated, School-Based Service Delivery Programs, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Parents' Rights Vs. Childrens' Interest: The Case Of The Foster Child, Marsha Garrison

Faculty Scholarship

No abstract provided.

Welfare Reform And Child Care: A Proposal For State Legislation, Clare Huntington

Faculty Scholarship

Without subsidized child care, Dianne Williams, the mother of an eighteen-month-old son, would never have left welfare and earned the post-secondary degree that led to her current job as a senior secretary; Tammy Stinson, a U.S. Air Force veteran and 29-year-old mother of two children, would spend up to $150 of her weekly $200 salary on child care, increasing the likelihood she would turn to welfare or live in poverty; Jerry Andrews, a graduate of a government-funded early childhood education program, might not earn $31,200 a year and be working towards an engineering degree. These individuals are lucky. The vast …

Welfare Reform And Child Care: A Proposal For State Legislation, Clare Huntington

Faculty Scholarship

The shortage of subsidized child care creates three problems. First, it contributes to underemployment because job options are greatly reduced when child care is unavailable. Second, it erodes the wages of parents who do work because low-income families spend a debilitating percentage of their earnings to pay for the care of their children. Third, it relegates many children to poor quality child care settings, compromising their academic potential and social well-being, and placing them at risk for delinquency and dependency. Part I of this article discusses the current paucity of quality, affordable child care, and the effects of this shortage. …

U. S. Social Welfare Policy, Lance Liebman

Faculty Scholarship

Professor Alstott's paper tells an important story about the current moment in American federalism as interpreted through the lens of the social welfare system. From its beginning in 1935, Aid to Families with Dependent Children (AFDC) was the most important intellectual ingredient in the American commitment (or not) to poor families. AFDC was called an exercise in "cooperative federalism." States established and administered programs, receiving reimbursement for roughly fifty percent of their expenditures from the national government, which, however, imposed certain programmatic conditions.

Since the Republicans took control of Congress in the 1994 elections, Congress has emphasized two themes: cutting …