Laboratories of destitution: Democratic experimentalism and the failure of antipoverty law

University of Pennsylvania Law Review

Volumn 157, Issue 2, 2008, Pages 541-616

  Super, David A ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 61349106048     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (449)

1. Address to the Nation on Hurricane Katrina Recovery from New Orleans, Louisiana, 41 WEEKLY COMP. PRES. DOC. 1405, 1407 (Sept. 15, 2005).
2. Remarks at the Department of Energy and an Exchange widi Reporters, 41 2 WEEKLY COMP. PRES. DOC. 1461, 1463 (Sept. 26, 2005).
3. Christopher Farrell, Poverty: The Crisis Katrina Revealed, BUS. WK., Sept. 27, 2005, http://www.businessweek.com/bwdaily/ dnflash/sep2005/nf20050927-0544-db013.htm(last visited Nov. 15, 2008).
4. Rice: Disaster Shows 'Ugly Way' Race, Poverty Collide, CNN.COM, http://www.cnn.com/2005/POLITICS/09/13/katrina.rice/index.html (last visited Nov. 15, 2008).
5. Sophia A. Nelson, I'm Hoping Bush Can Finish What Lincoln Started, WASH. POST, Oct. 23, 2005, at B3.
6. See Carmen DeNavas-Walt et al., U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2004, in CURRENT POPULATION REPORTS: CONSUMER INCOME 9 (2005) (indicating a 12.7% poverty rate in 2004, up from 12.5% in 2003);
7. Carmen DeNavas-Walt et al., U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2003, in CURRENT POPULATION REPORTS: CONSUMER INCOME 1 (2004) (reporting an increase in the poverty rate and the number of people in poverty between 2002 and 2003);
8. Bernadette D. Proctor & Joseph Dalaker, U.S. Census Bureau, Poverty in the United States: 2002, in CURRENT POPULATION REPORTS: CONSUMER INCOME 1 (2003) (showing an increase in the poverty rate from 2001 to 2002);
9. Bernadette D. Proctor & Joseph Dalaker, U.S. Census Bureau, Poverty in the United States: 2001, in CURRENT POPULATION REPORTS: CONSUMER INCOME 1 (2002) (showing an increase in the poverty rate from 2000 to 2001). To be sure, this sentiment was not unanimous: a Heritage Foundation spokesman complained, "[i]t's a bit unfortunate to link the hurricane with the issue of poverty in this country." Kelley Beaucar Vlahos, Katrina Reveals Poverty Reality, FOXNEWS.COM, Sept. 11, 2005, http://foxnews.com/story/0,2933,168842,00.html (last visited Nov. 15, 2008).
10. See, e.g., S. 1716, 109th Cong. (2005) (detailing would-be Medicaid, Temporary Assistance for Needy Families (TANF), and unemployment compensation benefits for displaced people).
11. See Deficit Reduction Act of 2005, Pub. L. No. 109-171, tit. VI, 120 Stat. 4, 54-134 (2006) (codified in scattered sections of 42 U.S.C.) (making wide-ranging cuts in the Medicaid program). The Medicaid and related cuts alone were twelve times larger than the cost of disaster relief.
12. See CONG. BUDGET OFFICE, COST ESTIMATE: S. 1932 DEFICIT REDUCTION ACT OF 2005, at 35 (2006) (explaining that Katrina-related spending would total $2.2 billion in 2006 but that direct spending on Medicaid would decrease $26.4 billion between 2006 and 2015).
13. See JOHN W. KINGDON, AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES 65-67 (2d ed. 1995) (arguing that focused public attention is a prerequisite to significant political change) ;
14. David A. Super, The New Moralizers: Transforming the Conservative Legal Agenda, 104 COLUM. L. REV. 2032, 2040 (2004) [hereinafter Super, New Moralizers] (arguing that public sentiment in fact has been far more evenly balanced than is commonly thought).
15. CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT ix-xiv (1999).
16. Id. at x.
17. See Michael C. Dorf & Charles F. Sabei, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 283-89 (1998) (detailing democratic experimentalists' approach to policymaking). To be fair, the democratic experimentalists insist that the 1996 welfare law does not conform to their vision. This Article contends that the welfare law, and the prior history of antipoverty law, fail to conform to their vision precisely because the democratic experimentalist assumptions are not met in this field - and because of the absence of means to respond to the failure of those assumptions.
18. See DOUGLAS R. IMIG, POVERTY AND POWER: THE POLITICAL REPRESENTATION OF POOR AMERICANS 25-26 (1996) (arguing that important social-welfare policies can develop from episodic reform movements).
19. See David A. Super, Rethinking Fiscal Federalism, 118 HARV. L. REV. 2544, 2629-40 (2005) [hereinafter Super, Fiscal Federalism] (discussing the interrelation between business cycles and state spending programs).
20. See PAUL E. PETERSON & MARK C. ROM, WELFARE MAGNETS: A NEW CASE FOR A NATIONAL STANDARD 100-01 (1990) (noting that some supporters of increasing federal funding in the early Aid to Dependent Children program sought assurances that states would not respond by reducing their own spending).
21. This problem closely relates to the feminist critique of the Alternative Dispute Resolution movement for creating a highly discretionary system that magnifies, rather than dissipates, the effects of gender hierarchy. ROBIN WEST, CARING FOR JUSTICE 77-79 (1997).
22. Experimentalism would be superfluous if its results could be anticipated by reflection." Dorf & Sabel, supra note 12, at 407.
23. SAR A. LEVITAN, THE GREAT SOCIETY'S POOR LAW: A NEW APPROACH TO POVERTY 109-31 (1969).
24. MICHAEL B. KATZ, IN THE SHADOW OF THE POORHOUSE: A SOCIAL HISTORY OF WELFARE IN AMERICA 285-89 (1986) [hereinafter KATZ, POORHOUSE].
25. MICHAEL B. KATZ, THE PRICE OF CITIZENSHIP: REDEFINING THE AMERICAN WELFARE STATE 317-28 (2001) [hereinafter KATZ, CITIZENSHIP].
26. See Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342, 345-47 (2004) [hereinafter Lobel, Renew Deal] (setting forth the many different legal theories that comprise the new governance model).
27. See generally Dorf & Sabel, supra note 12 (presenting democratic experimentalism as one new form of government that decentralizes power but also requires local information sharing).
28. See Dorf & Sabei, supra note 12, at 350-54 (extolling agencies' rolling best-practice rulemaking methods);
29. Lobel, Renew Deal, supra note 21, at 357-58 (arguing that a "central control-and-command structure [is] impossible" in the modern state);
30. Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 HARV. L. REV. 1016, 1019 (2004) (asserting a recent shift away from command-and-control regulation toward experimentalist intervention).
31. Some new-governance scholars, however, seek to blend these substantive and procedural elements. See, e.g., Bradley C. Karkkainen, Response, "New Governance" in Ilegal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping, 89 MINN. L. REV. 471, 474 (2004) (describing new governance as aspiring to be "opentextured, participatory, bottom-up, consensus-oriented, contextual, flexible, integrative, and pragmatic").
32. See Lobel, Renew Deal, supra note 21, at 381 (describing the Renew Deal as advocating a movement of power and responsibility downward to states and outward to the private sector).
33. See id. at 381, 396 ("Renew Deal governance scholarship stresses the importance of capacity building of private actors.").
34. See Dorf & Sabel, supra note 12, at 328-32 (espousing community policing as an effective, localized, participatory method of policymaking);
35. Sabel & Simon, supra note 22, at 1067-68 (describing the experimentalist tendency to admit interest groups to the negotiation process). Although democratic experimentalists insist that their program is one of "direct deliberation," Dorf & Sabel, supra note 12, at 340, and disparage representative democracy, their examples often feature dialogue among representatives (albeit unelected ones) of various interest groups rather than among the citizenry itself.
36. See id. at 324-27 (describing the experimentalist reform of family support services).
37. See Dorf & Sabel, supra note 12, at 338-39 (illustrating the need for national institutions to coordinate information sharing in democratic experimentalist models).
38. Here again, some blend the elements of the substantive and procedural regimes experimentalists reject. See, e.g., Karkkainen, supra note 23, at 474 (criticizing "fixity, state-centrism, hierarchy, excessive reliance on bureaucratic expertise, and intrusive prescription").
39. See Lobel, Renew Deal, supra note 21, at 364-65, 388-89 (suggesting that implementing policy in a top-down model is sometimes nearly impossible due to political weakness or ideological resistance);
40. Sabel & Simon, supra note 22, at 1061-62.
41. See Lobel, Renew Deal, supra note 21, at 394.
42. Id.
43. Id. at 444.
44. See, e.g., id. at 420 (suggesting challenges that a centralized system might face, because of regional variance in norms, in combating employment discrimination on the local level);
45. see also Dorf & Sabel, supra note 12, at 279 (asserting that the centralized New Deal bureaucracy lacked access to useful information gathering).
46. Dorf & Sabel, supra note 12, at 279 (criticizing legislation establishing individual rights as checks on bureaucratic excesses). Remarkably, they suggest that the success of individuals' claims of constitutional and statutory violations would depend in part on whether the plaintiffs could show that other locales had found effective ways to implement the same program without such violations,
47. id. at 288, 398-404, and that individuals could vindicate their constitutional rights against infringements designated "experiments" only upon showing that those experiments were shams,
48. id. at 464.
49. See Lobel, Renew Deal, supra note 21, at 378-79 (praising local information sharing conducted by collaborative programs).
50. Sabel & Simon, supra note 22, at 1064-65 (describing different patterns of political influence) ;
51. see also Dorf & Sabel, supra note 12, at 278 (discussing the dynamic of agency capture).
52. Lobel reports that conservatives routinely take advantage of progressives' embrace of localism and democratic participation by "subvert [ing] the ideals of progressive social reform and replacing] them with conservative agendas that reject egalitarian views of social provision." Orly Lobel, The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics, 120 HARV. L. REV. 937, 972 (2007) [hereinafter Lobel, Paradox].
53. Lobel, Renew Deal, supra note 21, at 442.
54. See id. at 344 (suggesting that the new governance model allows for "renewed dialogue between those who champion centralized top-down regulation and those who advocate devolution, deregulation, and privatization").
55. See Dorf & Sabel, supra note 12, at 271-72 (acknowledging inefficiency and "free-wheeling delegation of interpretive authority" among other criticisms of the new federalism).
56. It also stakes out a continued role for central government, albeit a small one, that may prove relatively uncontroversial with the Right. Id. at 338-39.
57. Refuting the popular slogan, democratic experimentalism tells us that we need not think globally to act locally.
58. See, e.g., Catherine Powell, Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States, 150 U. PA. L. REV. 245, 245-48 (2001) (describing the role of state and local governments in bypassing the federal government to advocate for international human rights).
59. See, e.g., Mark Tushnet, New Forms of Judicial Review and the Persistence of Rightsand Democracy-Based Worries, 38 WAKE FOREST L. REV. 813, 822-24 (2003) (highlighting democratic experimentalism as one version of weak-form judicial review).
60. See, e.g., Sabel & Simon, supra note 22, at 1020 (conceptualizing experimentalist public-law litigation as the right to break up settled bureaucratic patterns);
61. see also Jeanne C. Fromer, An Exercise in Line-Drawing: Deriving and Measuring Fairness in Redistricting, 93 GEO. L.J. 1547, 1551 (2005) (describing how democratic experimentalists would analyze and suggest changes in redistricting schemes).
62. Some of the new governance's substantive precepts also depend on important and sensitive assumptions. For example, Dorf and Sabel insist that in a newgovernance regime, a company that developed new environmental or health and safety technologies would share them with its competitors, but the authors do not explain how that regime would change incentives or intellectual property law to secure that cooperation. Dorf & Sabel, supra note 12, at 351-52. Dorf and Sabel also assume that companies would want to avoid being the lowest environmental or health-and-safety performers enough to invest in substantial improvements, yet they specify neither regulatory penalties nor market incentives that would motivate those investments.
63. Id. at 353.
64. Id. at 286-87, 444 (focusing on the "delivery of services analogous, if not identical, to those provided by private-sector firms").
65. But see id. at 444-69 (applying the same methods to the "delivery" of individual rights, such as freedom of speech, equal protection, and the privilege against compulsory self-incrimination).
66. This assumption is quite remarkable given the democratic experimentalists' embrace of a pragmatic worldview in which no agreement exists as to first principles. Id. at 284-86. The democratic experimentalists do acknowledge tfiat different locales may have different "initial understandings of problems," but they seem to assume that these differences are descriptive, not normative.
67. Id. at 287. Experimentalists also report that law enforcement preferred defiance over embracing the Court's invitation to experimentation with procedural safeguards in the wake of Miranda v. Arizona, 384 U.S. 436, 467 (1966).
68. Dorf & Sabel, supra note 12, at 460. By contrast, scholars focusing more on the new governance's substantive program candidly admit that experimentalism sometimes is little more than an attempt to make virtue out of necessity when powerful interests block legislation that would compel diem to change.
69. See Lobel, Renew Deal, supra note 21, at 395-96.
70. Dorf & Sabel, supra note 12, at 321-22 (asserting that decisions in democratic experimentalist regimes do not rely on consensus any more than in pragmatist business firms).
71. See Lobel, Renew Deal, supra note 21, at 452-53 (explaining governmental decision making as a response to incentives and regulations).
72. See Dorf & Sabel, supra note 12, at 288 (noting that the local participation and information sharing that are a part of democratic experimentalism could lead to much debate over the current political choices).
73. See id. (suggesting that localities be directed to "publicly declare their goals").
74. See id. at 397-400 (arguing for a solely proceduralist version of judicial review).
75. See id. at 345 (noting the inevitable obstructions that any democratic experimentalist administration would face). In acknowledging the possibility of "deception," experimentalists insist that monitoring and information sharing provide a complete response,
76. id. at 287, implying that the consensus is so overwhelming that the few deceivers cannot survive exposure. Similarly, they concede that policymaking "often" will be "paralyzed by the clash of interests," but express faith that further dialogue can resolve any problem.
77. Id. at 323;
78. see also Sabel & Simon, supra note 22, at 1068 (acknowledging that some actors may resist dialogue but expressing faith that special masters can convert the holdouts). This conclusion suggests that the clashing "interests" are weak so that most interest holders will surrender rather than act to obstruct deliberative decision making.
79. Dorf & Sabel, supra note 12, at 337-38.
80. But see id. at 343-44 (assuming that all candidates for local, state, and federal office will embrace experimentalism).
81. See id. at 288 (assuming that localities will broadly join "the experiment").
82. Democratic experimentalists assume that interest groups breaking ranks will doom any systematic obstructionism. Id. at 349.
83. Dorf and Sabel note that businesses sometimes co-opt government's regulatory powers to ruin competitors, but they fail to explain why requiring a statement of reasons in a deliberative forum offers any better protection than having the same reasons presented to a court. Id. at 392-93.
84. Similarly, Lobel celebrates the Workforce Investment Act's involvement of local businesses in determining what skills training will be provided in a community without considering the possibility that employers on the boards that will oversee the training programs will seek to lower their labor costs by creating a glut of workers capable of doing work in those employers' industries. Lobel, Renew Deal, supra note 21, at 412-14.
85. On the other hand, self-interested behavior, such as "gam[ing] the rules," capture of administrative agencies, and manipulation of legislative history, plays a prominent part in their critique of the old regime. Dorf & Sabel, supra note 12, at 278-79.
86. Id. at 348. The democratic experimentalists also assume that courts will consider obligations to participate sincerely in program evaluation and deliberative decision making sufficiently specific to be judicially enforceable.
87. Id. at 349.
88. James S. Liebman & Charles F. Sabel, A Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform, 28 N.Y.U. REV. L. & SOC. CHANGE 183 (2003) (arguing that the decentralization of public schools is a positive development).
89. Dorf & Sabel, supra note 12, at 317-18. Dorf and Sabel mention some more controversial governmental functions, such as public transportation, public housing, affirmative action, and redistribution of income, but they fail to acknowledge that some have ideological commitments to abolishing those programs.
90. Id. at 317-18, 398-99, 411-12. Even when discussing antipoverty programs, they assume that Congress is divided only about how to aid low-income people, not whether to do so.
91. Id. at 341-42.
92. The exponents argue that any elite faction that attempts to stall will lose to a coalition of other elites and the non-elite. Id. at 409-10.
93. Id. at 322.
94. Id. at 288. The democratic experimentalists suggest that the polity can change the routines by which it accomplishes its ends, id. at 298-301, 319-21, but do not acknowledge the possibility that persistent, powerful, well-organized forces might prefer no action.
95. See id. at 345-48 (insisting that localities will ignore the desire to emphasize metrics that display them in a positive light for the common interest).
96. See id. at 341-42 (insisting that Congress will ignore its internal disagreements over the merits of a certain end in order to enable experimentation).
97. Id. at 348.
98. Id.
99. Id. at 387.
100. See id. at 348-49 (predicting that local governments will provide accurate information due to pressure from other actors).
101. Dorf & Sabel's selection of auto safety, id. at 357-65, as an example is thus surprising. Although the information gained from experiments might have been valuable, that value would have to have been purchased at the cost of additional avoidable injuries and deaths on the roads. Particularly perplexing is the scathing criticism of Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983), from advocates of data-based policymaking. Dorf & Sabel, supra note 12, at 362-63.
102. State Farm is one of the leading limitations on willful policymakers' ability to disregard evidence. Elsewhere, they declare that "the court's task is to inquire whether the agency in fact undertook the kind of information organizing and coordinating effort necessary" to make informed policy decisions. Dorf & Sabel, supra note 12, at 397.
103. ee id. at 287 (implying that "error-correction" follows from "error-detection").
104. Dorf and Sabel focus on the safety of nuclear power plant operations. Id. at 371-73. An experimentalist approach to nuclear plant design could leave some communities with reactors too dangerous to operate and too expensive to close.
105. Curiously, exponents of this view offer as an example safety rules designed to protect construction workers from falling. Id. at 350. Construction workers seem unlikely to welcome an experimentalist approach to finding the right standard. The ethics of experimenting with these workers' lives are suspect, to say the least.
106. See id. at 287 ("[N]ational measures can rarely address the particularities of local experience . . . .").
107. But see id. at 413 (asserting that experimentalism may be adapted to national policymaking). Democratic experimentalists do acknowledge that local governments lack the capacity to analyze possible solutions to their problems.
108. Id. at 287. They nonetheless believe that central dissemination of information fully remedies this limitation.
109. Id. at 287-88.
110. Experimentalists assume that each locality's citizens can readily assess the full value of its services. Id. at 288.
111. See Liebman & Sabel, supra note 61, at 188 (equating more localized control of school systems with increases in schoolchildren's well-being).
112. Dorf and Sabel cite air-pollution control as well suited to varying local regulation. Dorf & Sabel, supra note 12, at 396. They do not explain why emitters would not locate in the jurisdictions with the most lenient regulations-or simply leverage the threat of job losses if they relocate to ensure that their jurisdiction of choice adopts agreeable rules .
113. Id.
114. Id. at 408.
115. Id. at 277.
116. They assume that acceptance of their procedural prescriptions will lead to adoption of their substantive recommendations, which in turn they assume to produce substantial savings. Id. at 412-13.
117. Cf. id. at 278 (noting the burdens on businesses of complying with different regulatory regimes applicable to different sectors of the economy).
118. Id. at 270-71. The democratic experimentalists do acknowledge that the methods they espouse can be ineffectual in the corporate world when conditions demand global decisions.
119. Id. at 310-11.
120. Id. at 341-42.
121. Dorf and Sabel assume redistribution will take place. Id. at 411-12.
122. Although they acknowledge that residential segregation leaves the localities where many low-income people live without the resources to serve them, id. at 408, they are unclear about whether the resources redistributed will come from federal, state, or local government.
123. Id. at 342. Dorf and Sabel do note that, in passing the 1996 welfare law, Congress neither provided sufficient funds to states nor refrained from imposing onerous regulations.
124. Id. at 435-36.
125. Id. at 342. Indeed, the democratic experimentalists suggest that Congress should pay for costly projects even when it prefers an inexpensive regulatory solution.
126. Id.
127. See id. at 328-29 (responding to obstacles to participation by providing an example of a case in which they were overcome).
128. But see Sabel & Simon, supra note 22, at 1064-66 (using public-choice concepts to explain "political blockages" that cause governmental misfeasance). Experimentalists do acknowledge the danger of "a morass of proceduralism." Dorf & Sabel, supra note 12, at 405. They consider the possibility that the costs of participation would give a comparative advantage to the affluent but dismiss the idea, citing serfs' campaigns for freedom and freed slaves' departure from plantations.
129. Id. at 408-11.
130. See Liebman & Sabel, supra note 61, at 266-67 (arguing that collective-action problems hamper information collection).
131. Thus, for example, experimentalists assume that transparency in the interactions between regulators and regulated entities will automatically eliminate any risk of capture. Cf. Dorf & Sabel, supra note 12, at 355 (discussing the adoption of "[i]nspection by peer administrators" as a "higher-order error detection").
132. This implies that, should corruption occur, activists can smite it with certainty. Orly Lobel, who has called the new governance an "analytical tour de force," Lobel, Renew Deal, supra note 21, at 343, nonetheless criticizes a "myth of engagement [that] obscures the actual lack of change being produced." Lobel, Paradox, supra note 37, at 985.
133. Dorf & Sabel, supra note 12, at 348. Lobel suggests that new technology will facilitate participation, althugh her examples primarily involve reducing information costs.
134. See Lobel, Renew Deal, supra note 21, at 438-41 (discussing "e-government," "e-rulemaking," and "e-activism") . Others insist, however, that deliberations should be conducted face-to-face. Sabel & Simon, supra note 22, at 1068.
135. But see Lobel, Renew Deal, supra note 21, at 457 (acknowledging the need to develop participants' skills).
136. They criticize public-choice theorists for "choos[ing] democracy over the Constitution" while complaining that "the democracy they describe does not merit the name." Dorf & Sabel, supra note 12, at 273 (emphasis omitted). To support this criticism, Dorf and Sabel cite Frank Easterbrook, hardly a mainstream public-choice theorist.
137. Id. at 273 n.11. Yet, elsewhere, democratic experimentalists rely on game and collective-action theory, two core tools of public choice.
138. See id. at 352-53 (asserting that traditional methods of pursuing product safety trigger "a game of chicken") ;
139. Lobel, Renew Deal, supra note 21, at 445;
140. Sabel & Simon, supra note 22, at 1065.
141. See Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CAL. L. REV. 1, 37-38 (2006) (criticizing democratic experimentalist approaches in the employment- discrimination context for a lack of normative vision). One experimentalist admits to "some ambiguity in the added value of generating synergy." Lobel, Renew Deal, supra note 21, at 384. She suggests that either greater empathy or greater ability to monitor one another may hold the answer.
142. Id. at 384-85. Yet, experience suggests that elites are unlikely to yield power and wealth to marginalized groups absent a credible threat of greater losses.
143. See ARCHON FUNG & ERIK OLIN WRIGHT, DEEPENING DEMOCRACY: INSTITUTIONAL INNOVATIONS IN EMPOWERED PARTICIPATORY GOVERNANCE 3-25 (2003) ("When individuals cannot dominate others . . . they are often more willing to deliberate."). Having to hire representatives to engage in deliberations in which they never make meaningful concessions is not such a threat.
144. See Lobel, Renew Deal, supra note 21, at 460-61 (discussing how informality in interactions is viewed by some scholars as "strategic powerlessness" which maintains "existing social hierarchies").
145. See, e.g., TIMOTHY CONLAN, FROM NEW FEDERALISM TO DEVOLUTION: TWENTYFIVE YEARS OF INTERGOVERNMENTAL REFORM 108-09 (1998) ("Reagan consistently defined federalism reform as a one-sided equation that reduced the federal role but did little to encourage states and localities." (citation omitted)).
146. See Lobel, Renew Deal, supra note 21, at 455-56 (warning against "reliance on technical formulae for value-driven policy choices").
147. One leading new-governance scholar recognizes this risk: "New governance approaches often assume one-dimensional measurements in evaluating complex developments. For example, scholars may imply flat equations between advancement in business administration models and new public management models; between scientific learning and democratic learning; between small-scale knowledge and large-scale initiatives; and between accountability and responsiveness." Id. at 450.
148. ALICE M. RTVLIN, SYSTEMATIC THINKING FOR SOCIAL ACTION 89 (1971).
149. Id. at 112.
150. Michael C. Dorf & Charles F. Sabel, Drug Treatment Courts and Emergent Experimentalist Government, 53 VAND. L. REV. 831, 874-75 (2000) [hereinafter Dorf & Sabel, Treatment Courts].
151. See JAMES S. FISHKIN, DEMOCRACY AND DELIBERATION: NEW DIRECTIONS FOR DEMOCRATIC REFORM 30-31 (1991) (defining "political equality" as "the institutionalization of a system which grants equal consideration to everyone's preferences and which grants everyone appropriately equal opportunities to formulate preference on the issues under consideration" (emphasis omitted)).
152. RIVLIN, supra note 99, at 117.
153. Failures of this assumption are likely to have a distributional skew: "[F] actors that limit replication of successful coalitions among members of the middle and working classes, such as inadequate resources, leadership, and collective-action problems, are even more problematic for the working poor . .. ." Frank Munger, Beyond Welfare Reform: Can We Build a Local Welfare State?, 44 SANTA CLARA L. REV. 999, 1018 (2004).
154. See Pablo Eisenberg, Is it Time to End the Promise ?: The Failed Volunteerism Crusade, in CHALLENGES FOR NONPROFITS AND PHILANTHROPY: THE COURAGE TO CHANGE 165, 166-67 (Stacy Palmer ed., 2005) [hereinafter CHALLENGES] (discussing how a non-profit organization, America's Promise, failed to reach its lofty goals);
155. FISHKIN, supra note 102, at 54-58 (reporting low voter-turnout rates for American elections).
156. See Pablo Eisenberg, The Voluntary Sector in the 1970s: Problems and Challenges, in CHALLENGES, supra note 105, at 23, 29-30 (finding that at the time when community groups are most needed, they are "financially strapped").
157. Id. at 32 ("Most [foundations] were not interested in community organizations . . . before the [Tax Reform] Act and have not changed their priorities since.").
158. Pablo Eisenberg, Philanthropy Community Building, in CHALLENGES, supra note 105, at 126, 128-29 (noting that whenever Congress was considering whether to cut programs that aided low-income people, organizations helping the poor said little in protest).
159. Pablo Eisenberg, Looking Ahead: What is the Future for the Nonprofit World ?, in CHALLENGES, supra note 105, at 228, 236.
160. See Lobel, Renew Deal, supra note 21, at 460-62 ("[S]tronger parties are able to see the benefits of a shift to the governance model.").
161. See FISHKIN, supra note 102, at 51 (stating that adopting the practices of a Quaker meeting, where the discussion continues until a general consensus is reached, would "raise decision-costs enormously").
162. Administrative agencies would be research organizations, without substantive decision-making authority. Lobel, Renew Deal, supra note 21, at 399 (" [T] he business of government agencies becomes regulatory research and development. . . ." (internal quotation marks omitted)). One new-governance scholar breaks ranks with the purists to acknowledge that "retention of supervisory authority and the background threat of direct regulation and enforcement strengthen accountability in the shift to governanee," but does not explain how to integrate this power with the radical devolution of power at the core of the experimentalist program.
163. Id. at 452.
164. See Dorf & Sabel, supra note 12, at 349 (outlining the remedies that a legislature, an agency, or the courts could use in an experimentalist regime when confronted with an actor who does not cooperate). Congress also apparently could withdraw research funding from a jurisdiction that refused to share information.
165. Id. at 341.
166. Lobel suggests that greater "orchestration"-dialogue with interested parties and data collection - could remedy employers' use of "cosmetic" antidiscrimination programs as liability shields. Lobel, Renew Deal, supra note 21, at 420-22.
167. Dorf & Sabel, supra note 12, at 356.
168. Id. at 400-01, 464.
169. Id. at 389-90, 397-400.
170. Lobel, Renew Deal, supra note 21, at 460;
171. see also id. at 458 (finding it "irresponsible to discuss the shift from a state-centered regulatory model to a new governance model based on collaboration and the empowerment of diverse actors without asking who will win and who will - at least some of the time-lose").
172. See, e.g., Dorf & Sabel, supra note 12, at 284 (noting that democratic experimentalismo "adoption might be accomplished piecemeal by drawing on the available precursors").
173. PETERSON & ROM, supra note 15, at 39.
174. See, e.g., Dorf & Sabel, supra note 12, at 322 ("[I]t is the very practical particularity of this deliberation . . . that advances the good of all participants.").
175. Indeed, Lobel warns that "the governance model must not accept a naive account of the win-win theme. Situations in which multiple interests are mutually enforcing are context specific." Lobel, Renew Deal, supra note 21, at 458.
176. Dorf and Sabel argue that including marginalized people in deliberations will cause policymakers to begin to consider their interests. Dorf & Sabel, supra note 12, at 405. If marginalized people lack the power to defeat a final decision antithetical to their interests, it is unclear why powerful groups would make concessions to them, even if forced to talk. If formerly marginalized people do have political leverage, that should affect the result, whether through dialogue or through other parties calibrating their proposals to avoid a fight. Exponents passionately insist that the autonomy of the formally powerless is vital to democratic experimentalism, but they do not explain how that will be achieved.
177. Id. at 405-06.
178. And even if experimentalists could somehow establish that mutual cooperation produces the best result for all players, they cannot assure cooperation. More precisely, assuming that each side receives the best result from cooperating transforms the game from a simple prisoner's dilemma to an endlessly iterated prisoner's dilemma. Cooperation does indeed become the dominant strategy in this game, but players may take different lengths of time to recognize that The democratic experimentalists assume that uncertainty about the political situation will cause powerful interests to cooperate but fail to consider that it could do just the opposite. Id. at 409-10. In one of Dorf and Sabel's examples, a moderate policymaker, such as former Transportation Secretary William Coleman, may seek to impose an experimentalist regime.
179. Id. at 362. As they demonstrate, however, such a regime is likely to prove unsustainable if one side or the other seizes the reins of power.
180. Id.
181. Dorf & Sabel, supra note 12, at 407.
182. See generally Donald H.J. Hermann, Lessons Taught by Miss Evers' Boys: The Inadequacy of Benevolence and the Need for Legal Protection of Human Subjects in Medical Research, 15 J.L. & HEALTH 147, 147-48 (2000) (noting historical instances of abuse of medical research subjects).
183. 42 U.S.C. §§201 to 300gg-92 (2000).
184. Dorf & Sabel, supra note 12, at 288.
185. Id. at 399.
186. Id. at 323-39, 356-64, 444-69;
187. Brandon L. Garrett & James S. Liebman, Experimentalist Equal Protection, 22 YALE L. & POL'Y REV. 261, 299-317 (2004).
188. Jefferson v. Hackney, 406 U.S. 535 (1972).
189. See 7 U.S.C. § 2020(e) (10) (2006) (granting a "fair hearing and a prompt determination thereafter to any household aggrieved by the action of the State" regarding its food stamp program).
190. KATZ, POORHOUSE, supra note 19, at 3-88, 146-78.
191. Id. at 200-01.
192. Id. at 213-18.
193. See PETERSON & ROM, supra note 15, at 92-95 (detailing legislative history primarily concerned with providing benefits for retired lifelong workers and noting the lack of representation for unemployed parents with dependent children).
194. Id. at 97.
195. See, e.g., King v. Smith, 392 U.S. 309, 326 n.23 (1968) (noting that for almost a decade federal officials had been criticizing to no avail the state practices that the Court subsequently declared unlawful).
196. See HERBERT J. GANS, THE WAR AGAINST THE POOR: THE UNDERCLASS AND ANTIPOVERTY POLICY 47 (1995) (discussing how the scientific charity movement legitimated the concept of an "underclass" in order to justify punitive measures, such as institutionalization in prisons and mental hospitals, against the poor).
197. See DAVID J. ROTHMAN, THE DISCOVERY OF THE ASYLUM: SOCIAL ORDER AND DISORDER IN THE NEW REPUBLIC 180-86 (1971) (discussing various states' approaches to rehabilitating the poor and historical shifts in trends of institutionalization).
198. HUBERT H. HUMPHREY, WAR ON POVERTY 171 (1964).
199. See DANIEL P. MOYNIHAN, MAXIMUM FEASIBLE MISUNDERSTANDING: COMMUNITY ACTION IN THE WAR ON POVERTY 64-70 (1969) (noting that President Kennedy's short-lived President's Committee on Juvenile Delinquency illustrated the problematic lack of beneficiary participations in "elite community leadership" programs) ;
200. see also IMIG, supra note 13, at 26-27 (describing the professionalization of antipoverty work and its consequences).
201. MOYNIHAN, supra note 141, at 15.
202. See ROBERT F. CLARK, MAXIMUM FEASIBLE SUCCESS: A HISTORY OF THE COMMUNITY ACTION PROGRAM 22 (2000) (describing legislation that required low-income persons to make up at least one-third of the board of directors in community-action agencies).
203. Id. at 55-57. These agencies still receive federal funding and are required to involve low-income people in an annual priority-setting process. Id. at 22.
204. See WALTER I. TRATTNER, FROM POOR LAW TO WELFARE STATE 344-45 (5th ed. 1994) (describing mass welfare-rights demonstrations, beginning in 1966).
205. See Lucie E. White, On the Vision and Practice of Participation in Project Head Start, in LAW STORIES 197, 201 (Gary Bellow & Martha Minow eds., 1996) (discussing the participation of parents in Head Start programs as a way of fostering parental involvement in their children's education).
206. MOYNIHAN, supra note 141, at 38-43.
207. Id. at 39.
208. Id. at 76.
209. Id. at 4.
210. CLARK, supra note 143, at 108-09.
211. See TRATTNER, supra note 145, at 312 (citing criticism by well-known community organizer Saul Alinsky in the 1950s).
212. See CLARK, supra note 143, at 78-82 (discussing the adoption of new poverty thresholds as affecting the perspective and operations of aid programs).
213. Id. at 85.
214. Id. at 83.
215. See FRANCES FOX PIVEN & RICHARD A. CLOWARD, POOR PEOPLE'S MOVEMENTS: WHY THEY SUCCEED, HOW THEY FAIL 307-08 (Vintage Books 1979) (1977) [hereinafter PIVEN & CLOWARD, MOVEMENTS] (discussing the lack of stable groups in attempts to build welfare-rights organizations and the need to create new groups to maintain membership rolls).
216. See id. at 309-10 (noting that those in leadership positions tended to focus more on their incumbency than the goals of the movement itself and, thus, resisted new organizing efforts).
217. JAMES J. GRAHAM, THE ENEMIES OF THE POOR 271 (1970).
218. See IMIG, supra note 13, at 26-27 (arguing that such organizations historically avoided political advocacy in order to focus on service provision);
219. see also PIVEN & CLOWARD, MOVEMENTS, supra note 156, at 321-26 (recognizing the weakened militancy of the National Welfare Rights Organization as it relied more on the federal system).
220. See PIVEN & CLOWARD, MOVEMENTS, supra note 156, at 312-15 (noting that a leadership agenda to cultivate relationships with other organizations led to changes in rhetoric, but no incentives to act on them).
221. See id. at 331-32 (finding that the external resources on which the welfare-rights movement had come to depend lasted only as long as the civil rights movement held a strong mass base and ebbed away after the death of Dr. Martin Luther King, Jr., and the election of Richard Nixon).
222. See TRATTNER, supra note 145, at 312, 345. Some social workers even rejected casework outright. Id.
223. Matthew Diller, The Revolution in Welfare Administration: Rules, Discretion, and Entrepreneurial Government, 75 N.Y.U. L. REV. 1121, 1126-27 (2000).
224. See William H. Simon, Legality, Bureaucracy, and Class in the Welfare System, 92 YALE L.J. 1198, 1254-67 (1983) (describing the conflicting interests between the working class and liberal reformers that doomed progressive advocacy).
225. MOYNIHAN, supra note 141, at xii-xiii.
226. For example, early voluntary antipoverty groups actively opposed government-funded relief efforts, advocating for psychological counseling instead. IMIG, supra note 13, at 27-28.
227. MOYNIHAN, supra note 141, at 39.
228. See, e.g., CLARK, supra note 143, at 62 (describing the views of Senators Barry Goldwater and John Tower that the poor are responsible for their own condition);
229. see also TRATTNER, supra note 145, at 308-09 (describing efforts to roll back the New Deal's expansion of relief during the 1950s).
230. See TRATTNER, supra note 145, at 310 (pointing to John Kenneth Galbraith as one such scholar).
231. Nathan Glazer, The Social Policy of the Reagan Administration, in THE SOCIAL CONTRACT REVISITED: AIMS AND OUTCOMES OF PRESIDENT REAGAN'S SOCIAL WELFARE POLICY 221, 236 (D. Lee Bawden ed., 1984).
232. MARTIN ANDERSON, WELFARE 68-73 (1978).
233. See FRANCES FOX PIVEN & RICHARD A. CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF PUBLIC WELFARE 286 (1971) [hereinafter PTVEN& CLOWARD, REGULATING].
234. See CLARK, supra note 143, at 28.
235. See id. at 169 (describing a drop in the federal staff assigned to monitor the Community Services Block Grant from 170 to 55 in just one year, with the remaining staff absorbed into the Family Support Administration three years later).
236. Id. at 94-95, 111-13.
237. See ANDERSON, supra note 171, at 105-15 (cataloguing the types of biases that might undermine the validity of social experiments).
238. TRATTNER, supra note 145, at 324.
239. Id. at 325.
240. See PHILIP S. LAND, SHAPING WELFARE CONSENSUS: U.S. CATHOLIC BISHOPS' CONTRIBUTION 104-05 (1988) (describing a "positive consensus on welfare," including the proposition that "[w]elfare works but it does not produce miracles").
241. See Super, New Moralizers, supra note 9, at 2089 (noting the liberals' "broad consensus on a basic set of social values").
242. See, e.g., Jefferson v. Hackney, 406 U.S. 535, 546 (1972) ("So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket."); Dandridge v. Williams, 397 U.S. 471, 485 (1970) ("In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.").
243. See 397 U.S. 254, 260-61 (1970) (holding that recipients of financial aid were entitied to notice and a hearing prior to the termination of their benefits).
244. See PIVEN & CLOWARD, MOVEMENTS, supra note 156, at 297-98 (arguing that the "objective of these activities" to address claimants' grievances "was to expand membership affiliation").
245. See, e.g., Shea v. Vialpando, 416 U.S. 251, 258 (1974) (holding that standardized allowances for work expenses must be adequate to cover all actual expenses).
246. See PITCN & CLOWARD, REGULATING, supra note 172, at 306-14 (describing attempts to implement more procedural safeguards for denying welfare benefits in order to decrease officials' capriciousness).
247. See, e.g., Heckler v. Turner, 470 U.S. 184, 211 (1985) (finding that Congress limited Shea in 1981 with the passage of the Omnibus Budget Reconciliation Act of 1981).
248. See Atkins v. Parker, 472 U.S. 115, 129-30 (1985) (holding that recipients have no right to a Goldberg hearing when the state reduces or terminates their benefits en masse as it implements new legislation).
249. ANDERSON, supra note 171, at 159.
250. To the extent that the Left and the Right did have common ground, it was in a utilitarian approach to these problems rather than one based on defining social rights and responsibilities. See LAND, supranote 179, at 31-35 (critiquing the utilitarian, individualistic approach).
251. CLARK, supra note 143, at 128-34.
252. David Theo Goldberg, Deva-Stating Disasters: Race in the Shadow(s) of New Orleans, 3 DU BOIS REV. 83, 86 (2006) (quoting Grover Norquist, President of Americans for Tax Reform, expressing the desire to "reduce [government] to the size where he can drag it into the bathroom and drown it in the bathtub.").
253. See, e.g., ANDERSON, supra note 171, at 164-66.
254. See 42 U.S.C. § 617 (2000) ("No officer or employee of the Federal Government may regulate the conduct of States under this part or enforce any provisions of this part, except to the extent expressly provided in this part.").
255. See, e.g., HARRY C. BOYTE, THE BACKYARD REVOLUTION: UNDERSTANDING THE NEW CITIZEN MOVEMENT xi-xiv (1980) (praising community organizers for resisting corporatist threats to democracy);
256. MANUEL CASTELLS, THE CITY AND THE GRASSROOTS: A CROSS-CULTURAL THEORY OF URBAN SOCIAL MOVEMENTS (1983) (providing case studies illustrating the role of urban movements in effecting broader social change);
257. ROBERT FISHER, LET THE PEOPLE DECIDE: NEIGHBORHOOD ORGANIZING IN AMERICA (1994) (focusing on the line between the national political economy and local community organizing).
258. See KATZ, CITIZENSHIP, supra note 20, at 354 (noting that although devolution "seems consistent with American traditions of localism," local governments' propensity to act in the best interests of their citizens is uncertain).
259. Thus, for example, the federal government has required states providing refuge to families that evacuated areas hit by Hurricanes Katrina and Rita to pay part of the additional costs of Medicaid. Families' choices of destinations appear to result primarily from proximity; constructing a normative basis for imposing costs on this basis is difficult. The timing of these burdens on state and local governments is similarly irrational, imposing greater burdens at just the point that these governments' revenues are falling. See Super, Fiscal Federalism, supra note 14, at 2629-40.
260. Cf. CLARK, supra note 143, at 160-62 (highlighting President Reagan's view that if low-income people truly cannot resolve their issues alone, the private sector would provide for them).
261. KATZ, CITIZENSHIP, supra note 20, at 163-64.
262. Id. at 137-42.
263. Benjamin R. Barber, The How and Why of Volunteering, PHILA. INQUIRER, Apr. 20, 1997, at E11.
264. Consequently, by the end of the nineteenth century, critics of the poor urged that government programs replace religious charity because they believed that congregations were too easily deceived by lazy claimants. See KATZ, CITIZENSHIP, supra note 20, at 156 (remarking that, unlike in these earlier periods, religious groups were substantially left out of federal plans during the New Deal).
265. See id. at 147, 165 (acknowledging the failure to spur Americans to volunteer time and money on causes outside their communities).
266. See id. at 142 (noting primarily the roles of the Public Welfare Amendments of 1962 and Tide XX of the Social Security Amendments of 1974).
267. See id. (describing private charity as existing "in the shadow of government").
268. Id. at 146-47.
269. Id. at 147.
270. See id. (noting that while household donations to social-services programs dropped five percent from 1991 to 1997, contributions to educational and religious institutions rose substantially).
271. Id. at 147-48 (comparing $1.5 trillion in federal government social insurance and public assistance to $12 billion in private donations).
272. See id. (noting that religious organizations received more than twice the time given to human-services organizations).
273. KEN AULETTA, THE UNDERCLASS 367 (rev. ed. 1999).
274. See KATZ, CITIZENSHIP, supra note 20, at 164 (discussing "the limits of voluntarism").
275. BILL SHORE, REVOLUTION OF THE HEART: A NEW STRATEGY FOR CREATING WEALTH AND MEANINGFUL CHANGE 7 (1995).
276. Id.
277. Id. at 11.
278. ELLEN JENNINGS & SHOHREH KERMANI PETERSON, BREAD FOR THE WORLD INST., TRANSFORMING ANTI-HUNGER LEADERSHIP: A GUIDE TO THE PROGRAM 1.3 (1996).
279. See CHARLES MURRAY, LOSING GROUND: AMERICAN SOCIAL POLICY, 1950-1980, at 229-30 (1984) (arguing that the increase in resources for local and private human services following the decrease in federal spending has led to a "more humane, more wisely distributed, and more effective" service-coverage network).
280. Id. at 231.
281. DAN W. LUFKIN, MANY SOVEREIGN STATES: A CASE FOR STRENGTHENING STATE GOVERNMENT - AN INSIDER'S ACCOUNT 194 (1975).
282. LAWRENCE M. MEAD, THE NEW POLITICS OF POVERTY: THE NONWORKING POOR IN AMERICA 193 (1992).
283. TEX. PUB. POLICY FOUND., MAKING GOVERNMENT WORK: A CONSERVATIVE AGENDA FOR THE STATES, at xxv (1992) [hereinafter CONSERVATIVE AGENDA].
284. See, e.g., LAND, supra note 179, at 109-15 (discussing various state-level experiments).
285. See, e.g., CHRISTOPHER JENCKS, RETHINKING SOCIAL POLICY: RACE, POVERTY, AND THE UNDERCLASS 82-83 (1992) (showing the implausibility of Charles Murray's oftcited assertion that welfare led to out-of-wedlock childbearing).
286. MILDRED REIN, DILEMMAS OF WELFARE POLICY: WHY WORK STRATEGIES HAVEN'T WORKED 61 (1982).
287. See MEAD, supra note 219, at 197-98 ("The effect was not to end controversy, however, but to shift its focus from the character of society to that of welfare.").
288. See, e.g., JOEI. F. HANDLER, THE POVERTY OF WELFARE REFORM 62-75 (1995) (describing various projects that states enacted in the 1980s).
289. See id. at 76-85 (discussing the law's flexibility in allowing states to design education and training programs).
290. See 7 U.S.C. §§ 2030-2031 (2006) (authorizing food stamp components of experiments).
291. Robert Rector & Michael McLaughlin, A Conservative's Guide to State-Level Welfare Reform, in CONSERVATIVE AGENDA, supra note 220, at 137, 138.
292. Id. at 154.
293. Id. at 138.
294. KATZ, CITIZENSHIP, supra note 20, at 83-103;
295. MEAD, supra note 219, at 190-92;
296. see also Rector Sc McLaughlin, supra note 228, at 164 (arguing that welfare benefits should not be increased when a mother who is receiving benefits has an additional child).
297. See John Holahan & Mary Beth Pohl, Leaders and Laggards in State Coverage Expansions, in FEDERALISM & HEALTH POLICY 179, 185-87 (John Holahan et al. eds., 2003).
298. Edmund F. Haislmaier, Health Care, in CONSERVATIVE AGENDA, supra note 220, at 206, 206-08.
299. PETERSON & ROM, supra note 15, at 82-83.
300. See DENNIS C. MUELLER, PUBLIC CHOICE III, at 677 (2003) ("When local polities attempt to provide redistribution programs and other programs unwanted by some taxpayers, individuals vote with their feet and move to communities where such programs do not exist").
301. PETERSON & ROM, supra note 15, at 5, 54-55.
302. See id. at 24-38 (describing debates generated by Wisconsin's benefits program, which was more generous than that of its neighboring states).
303. See Dorf & Sabel, supra note 12, at 350-51 (discussing the use of "rolling best-practice rules" in the context of pollution reduction).
304. David A. Super, The Quiet "Welfare" Revolution: Resurrecting the Food Stamp Program in the Wake of the 1996 Welfare Law, 79 N.Y.U. L. REV. 1271, 1298-1303 (2004) [hereinafter Super, Quiet Revolution].
305. See David A. Super, Are Rights Efficient? Challenging the Managerial Critique of Individual Rights, 93 CAL. L. REV. 1051, 1109-13 (2005) [hereinafter Super, Efficient Rights] (discussing the perverse incentives created by the Food Stamp Quality Control System).
306. See, e.g., PIVEN & CLOWARD, MOVEMENTS, supra note 156, at 331-32 (presenting a series of examples of the Nixon administration's opposition to programs grassroots advocates favored).
307. See generally David A. Super, The Political Economy of Entitlement, 104 COLUM. L. REV. 633, 709-10 (2004) [hereinafter Super, Political Economy] ("Supposed subjective and unconditional entidements are favorite targets of criticism.").
308. Martin Anderson, The Objectives of the Reagan Administration's Social Welfare Policy, in THE SOCIAL CONTRACT REVISITED 15, 25 (D. Lee Bawden ed., 1984) [hereinafter REAGAN'S WELFARE POLICY].
309. Id. at 25-26.
310. Randall R. Bovbjerg et al., State and Federal Roles in Health Care: Rationales for Allocating Responsibilities, in FEDERALISM Sc HEALTH POLICY 31 (John Holahan et al. eds., 2003).
311. Timothy M. Smeeding, Is the Safety Net Still Intact? in REAGAN'S WELFARE POLICY, supra note 243, at 69, 90.
312. Id. at 91.
313. Id. at 90.
314. PETERSON & ROM, supra note 15, at 99.
315. Id. at 117.
316. Alone among these initiatives, the Omnibus Budget Reconciliation Act of 1993 was not bipartisan. Pub. L. No. 103-66, 107 Stat 312 (codified in scattered sections of 7, 26, and 42 U.S.C). The acrimony then focused on taxes, not the benefit expansion.
317. Pub. L. No. 100-485 (1988) (codified as amended in scattered sections of 42 U.S.C).
318. Stuart E. Eizenstat, Comments, in REAGAN'S WELFARE POLICY, supra note 243, at 28, 29.
319. Jack A. Meyer, Budget Cuts in the Reagan Administration: A Question of Fairness, in REAGAN'S WELFARE POLICY, supranote 243, at 33, 37-38.
320. See Eizenstat, supra note 253, at 29-30
321. (citing CONG. BUDGET OFFICE, MAJOR LEGISLATIVE CHANGES IN HUMAN RESOURCES PROGRAMS SINCE JANUARY 1981, at 76 tbl.1 (1983)).
322. Smeeding, supranote 246, at 103-06.
323. Anderson, supra note 243, at 24-25.
324. Id.
325. Eizenstat, supra note 253, at 28-29
326. Id.
327. Id. at 30.
328. Smeeding, supra note 246, at 107 (describing the "dismay []" of state officials at the prospect of the federal government delegating AFDC and Food Stamp Program to the states).
329. See, e.g., Meyer, supra note 254, at 54 (discussing empirical research on the work incentives of AFDC beneficiaries).
330. G. William Hoagland, Comments, in REAGAN'S WELFARE POLICY, supra note 243, at 121, 122-23.
331. Susan Bennett & Kathleen A. Sullivan, Disentitling the Poor: Waivers and Welfare "Reform," 26 U. MICH.J.L. REFORM 741, 745 (1993).
332. KATZ, CITIZENSHIP, supra note 20, at 91.
333. Rector & McLaughlin, supra note 228, at 154.
334. President Reagan pledged during the campaign and in his first budget to protect the "safety net." He sought to portray himself as seeking to improve the efficiency of programs rather than eliminating them. Anderson, supra note 243, at 17-18.
335. DAVID A. SUPER ET AL., CTR. ON BUDGET & POLICY PRIORITIES, THE NEW WELFARE LAW (1996), available at http://www.cbpp.org/ WECNF813.HTM.
336. E.g., HANDLER, supra note 225, at 135-37.
337. Rector & McLaughlin, supra note 228, at 161.
338. NANCY L. JOHNSON ET AL., WELFARE REFORM HAS ALREADY ACHIEVED MAJOR SUCCESSES: A HOUSE REPUBLICAN ASSESSMENT OF THE EFFECTS OF WELFARE REFORM 10 (1999).
339. Cf. H.R. REP. NO. 104-430, at 351-56 (1995) (Conf. Rep.). Like many issues in that legislation, these were debated and resolved in the conference committee on the initial welfare bill that President Clinton vetoed in early 1996, and they were not reopened when Congress prepared the very similar legislation that President Clinton signed that summer.
340. See H.R. REP. NO. 104-725, at 302-04 (1996) (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 2649, 2690-92 (describing identical reporting requirements in the House and Senate versions of the 1996 bill).
341. Barbara Vobejda & Juditil Havemann, States' Welfare Data Disarray Clouds Analysis, WASH. POST, Apr. 13, 1998, at Al.
342. See, e.g., JOHNSON ET AL., supra note 272, at 15-18 ("Consideration of the effects of welfare reform must begin with caseload reductions.");
343. IRENE LURIE, AT THE FRONT LINES OF THE WELFARE SYSTEM 253-59 (2006).
344. See JOHNSON ET AL., supra note 272, at 16-21 figs. 2-6 (discussing the increases in the work rates after the 1996 welfare law);
345. LURIE, supra note 275, at 263 (pronouncing fears of harm to low-income families unfounded because sixty percent of adults in families leaving cash assistance "were employed at some point during the first 13 weeks off welfare" and over seventy percent had a job at some point within the year).
346. This is not to say that that such disasters universally ennoble the public; some of this attention is expressed in morbid, voyeuristic ways. See Robert N. Strassfeld, Taking Another Ride on Flopper: Benjamin Cardozo, Safe Space, and the Cultural Significance of Coney Island, 25 CARDOZO L. REV. 2189, 2213 (2004) (describing amusement park attractions recreating the Galveston and Johnstown floods and crowded, burning tenements).
347. Special interest groups and politicians long have exploited disasters to highlight issues of importance to them or to gain favorable publicity. See CHARLES E. FRITZ & J. H. MATHEWSON, NAT'L ACAD. OF SCIENCES, CONVERGENCE BEHAVIOR IN DISASTERS 58 (1957) (listing ways that special interest groups and others exploit disasters opportunistically);
348. see also KINGDON, supra note 9, at 187 (arguing that attracting public attention is a prerequisite to achieving political change).
349. The lessons can be about private as well as public law. See, e.g., Jed Handelsman Shugerman, Note, The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age, 110 YALE L.J. 333, 335 (2000) (tracing the adoption of strict-liability tort standards to a series of disasters, including the Johnstown flood of 1889). Moreover, those seeking to teach these lessons may have policy agendas quite distinct from relief of human disaster victims.
350. See Phillip M. Bender, Restoring the Elwha, White Salmon, and Rogue Rivers: A Comparison of Dam Removal Proposals in the Pacific Northwest, 17 J. LAND RESOURCES & ENVTL. L. 189, 198, 203 n.63 (1997) (invoking the disasters resulting from the failures of the Johnstown and St Francis dams in support of an environmentalist proposal to restore rivers' natural flow).
351. James D. Thompson & Robert W. Hawkes, Disaster, Community Organization, and Administrative Process, in MAN AND SOCIETY IN DISASTER 268, 281-82 (George W. Baker & Dwight W. Chapman eds., 1962).
352. HARRY ESTILL MOORE ET AL., NAT'L ACAD, OF SCIENCES, BEFORE THE WIND: A STUDY OF THE RESPONSE TO HURRICANE CARLA 126 (1963);
353. of. James Dao, Louisiana Sees Faded Urgency in Relief Effort, N.Y. TIMES, Nov. 22, 2005, at Al (reporting the decrease in the nation's attention to the travails of Hurricane Katrina survivors only three months after the hurricane).
354. E.J. Dionne, Jr., Op-Ed., That Was a Short War on Poverty, WASH. POST, Oct. 14, 2005, at A19.
355. John Cochran, New Perspectives on Poverty, 64 CQ WKLY. 2802 (2006).
356. Id. at 2802-03.
357. Id. at 2804.
358. S. 1716, 109th Cong. 102 (2005).
359. Cf. 151 CONG. REC. S10578-79 (daily ed. Sept. 28, 2005) (letter from Dep't of Health and Human Servs. to Sen. William H. Frist, Majority Leader, U.S. Senate) (expressing the Bush administration's opposition to the "massive new Federal program" being considered).
360. FRANCES FOX PIVEN & RICHARD A. CLOWARD, WHY AMERICANS DON'T VOTE 4 (1st paperback ed. 1989).
361. See, e.g., LAND, supra note 179, at 31-35 (comparing modern Catholic social thought's concern "for the growth and improvement of the social order as a whole" with liberalism's and conservatism's views of the common good).
362. MUELLER, supra note 235, at 570.
363. Id. at 49-52.
364. Super, Political Economy, supra note 242, at 696-705 (describing nonrecipients' difficulties comprehending the true nature of public-benefit programs).
365. See MUELLER, supra note 235, at 47-49 (arguing for a government redistribution program rather than a purely voluntary, charitable approach because of the free-rider problem).
366. One of the most successful antipoverty programs, the Food Stamp Program, has advanced in part because its supporters held no such compunctions, tying their fate to that of subsidies for corporate farms that are difficult to defend on the merits.
367. Although SSI is not social insurance under most definitions, in operating it the Social Security Administration (SSA) relies significantly on eligibility decisions made for Social Security Disability Insurance. Similarly, Medicaid is means-tested but operates as a Medicare supplement for the elderly and those persons with disabilities that receive Medicare. Congress designed the means test for Medicaid's nursing-home component to allow large numbers of middle-income people to receive care once Medicare's modest nursing-care benefit runs out.
368. CHARLES NOBLE, WELFARE AS WE KNEW IT: A POLITICAL HISTORY OF THE AMERICAN WELFARE STATE 136-37 (1997).
369. See REBECCA M. BIANK, IT TAKES A NATION: A NEW AGENDA FOR FIGHTING POVERTY 140-42 (1997) (comparing the United States's wealth-transfer systems unfavorably with those of other Western nations);
370. MARTIN CARNOY & DEREK SHEARER, ECONOMIC DEMOCRACY: THE CHALLENGE OF THE 1980S, at 334-43 (1980) (advocating the use of social-welfare policy to reduce inequality).
371. Super, Quiet Revolution, supra note 239, at 1383 n.480.
372. Super, New Moralizers, supra note 9, at 2075 n.138.
373. Super, Quiet Revolution, supra note 239, at 1273-83.
374. MILTON FRIEDMAN & ROSE FRIEDMAN, FREE TO CHOOSE: A PERSONAL STATEMENT 107-08 (1980).
375. See, e.g., id.
376. See Super, New Moralizers, supra note 9, at 2051-53 ("[T]he new moralizers have called for objective determinations of morality based on arbitrary per se standards. These standards typically have little to do with the actual state of mind of the individuals being judged, but the inferences they draw are likely to seem plausible to middleclass policymakers, reporters, and voters that have little contact with the judged individuals." (citation omitted)).
377. See David A. Super, Privatization, Policy Paralysis, and the Poor, 96 CAL. L. REV. 393, 395-98 (2008) [hereinafter Super, Privatization] (finding the movement to privatize public-benefit administration to be motivated more by ideology than probable results).
378. Jon Michaels, Deforming Welfare: How the Dominant Narratives of Devolution and Privatization Subverted Federal Welfare Reform, 34 SETON HALL L. REV. 573, 598-99 (2004) ("[S] tate, church, and private welfare vendors may exploit their discretionary authority and under-provide services in ways that leave hundreds of thousands of individuals materially far worse off than even a fiscally conservative Congress might have intended.").
379. Super, Fiscal Federalism, supra note 14, at 2629-40.
380. NANCY L. JOHNSON ET AL., supra note 272, at 27.
381. Dorf & Sabel, Treatment Courts, supra note 101, at 834.
382. SUNSTEIN, supra note 10, at x.
383. JEFFREY D. SACHS, THE END OF POVERTY: ECONOMIC POSSIBILITIES FOR OUR TIME 364 (2005).
384. See MILTON FRIEDMAN & ROSE FRIEDMAN, supra note 301 at 109.
385. See MILTON FRIEDMAN, CAPITALISM AND FREEDOM 191 (1962) ("It can be argued that private charity is insufficient because the benefits from it accrue to people other than those who make the gifts . . . .");
386. see also MUELLER, supra note 235, at 47-49 (finding that voluntary associations may lead to free-riding and less than Paretooptimal redistribution).
387. See CONLAN, supra note 96, at 315 (finding that most American voters who self-identify as being ideological conservatives are also "operational liberals" in that they support major public programs) ;
388. Super, New Moralizers, supra note 9, at 2075-76 (finding divergence between conservatives and the electorate on responding to innocent misfortune).
389. Super, Quiet Revolution, supra note 239, at 1383 n.480.
390. CONG. BUDGET OFFICE, THE BUDGET AND ECONOMIC OUTLOOK: FISCAL YEARS 2008 TO 2018, at 52 tbl.3-1, 56 tbl.3-3 (2008).
391. Id. at 106. The cost of doubling income-support programs in the final year of this period would consume less than forty-five percent of the cost of the expiring tax cuts that year.
392. Super, New Moralizers, supra note 9, at 2053-57 (criticizing some expressive laws).
393. Cochran, supra note 283, at 2809.
394. See FRIEDMAN, supra note 312, at 195 ("One cannot be both an egalitarian . . . and a [classical] liberal.").
395. See Robert C Ellickson, The Untenable Case for an Unconditional Right to Shelter, 15 HARV. J.L. & PUB. POL'Y 17, 24-27 (1992) (arguing that guaranteed shelter would weaken work incentives and reduce aggregate social welfare).
396. See CYNTHIA MILLER, MANPOWER DEMONSTRATION RESEARCH CORP., EXPLAINING THE MINNESOTA FAMILY INVESTMENT PROGRAM'S IMPACTS BY HOUSING STATUS 1 (1998) (finding that almost all positive impacts of an incentive-laden welfare experiment occurred among recipients in subsidized housing).
397. Super, Political Economy, supra note 242, at 723-25.
398. See id. at 696-705 (describing problems in evaluating a program's effectiveness).
399. See, e.g., FRIEDMAN, supra note 312, at 192-93 (advocating tax breaks "as a substitute for the present rag bag of measures" to reduce the total administrative burden).
400. See Super, Political Economy, supra note 242, at 654-55 (explaining responsive entitlements).
401. See id. at 655-58 (describing functional entidements).
402. FRIEDMAN, supranote 312, at 191.
403. Id.
404. See David A. Super, Offering an Invisible Hand: The Rise of the Personal Choice Model for Rationing Public Benefits, 113 YALE L.J. 815, 836-44 (2004) (cataloguing the increasingly varied and complex ways in which public benefit programs manipulate claimants' incentives).
405. See id., at 842-44 (noting that moving from command-and-control rules to incentives requires accepting that some disfavored behavior will continue).
406. See, e.g., FRIEDMAN, supra note 312, at 178-80 (arguing the merits of cash grants over public housing programs).
407. Professors Kaplow and Shavell find manipulation of legal rules inferior to transfer payments as a means of redistributing income due to one kind of under-inclusiveness: the failure of any given rule to help low-income people not coming in contact with that portion of the legal system. LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE 33-34 (2002). Each legal rule manipulated to this end creates additional inefficiencies.
408. FRIEDMAN, supra note 312, at 180-81.
409. See MUELLER, supra note 235, at 677 (noting the ultimate ineffectiveness of redistribution at a local level due to people's ability to "vote with their feet").
410. Dorf & Sabel, supra note 12, at 434-38 (calling the 1996 welfare law "the evil twin" of positive experimentalist legislation);
411. Lobel, Renew Deal, supra note 21, at 459 (noting that the 1996 welfare law disguised what is merely a reduction in benefits as government experimentation).
412. Dorf & Sabel, Treatment Courts, supra note 101, at 835.
413. Id. at 843.
414. Mary Wisniewski, Courts Get a Fix on Drug Treatment Alternatives in Low-Level Drug Cases, CHI. LAWYER, June 1999, at 6-7.
415. U.S. GAO, DRUG COURTS: OVERVIEW OF GROWTH, CHARACTERISTICS, AND RESULTS 8 (1997) (failing to come to any definitive conclusions on the impact of drugcourt programs).
416. Dorf Sc Sabel, supra note 12, at 284.
417. Participation in deliberations about solid-waste disposal still will have significant cost. Absent a crisis, few are likely to care enough about these issues to spend time on them. The same is likely true of most issues on which broad substantive consensus exists. On the other hand, at least persons wishing to participate in deliberations over solid-waste disposal need not acquire specialized technical knowledge.
418. See Super, Privatization, supra note 304, at 414-27 (objecting to privatization of functions implicating contested normative choices and those whose performance government cannot readily monitor).
419. United States v. Mead Corp., 533 U.S. 218, 229 (2001) (identifying a "category of interpretive choices distinguished by an additional reason for judicial deference" as those in which the agency used participatory decision-making procedures).
420. See, e.g., AMY GUTMANN & DENNIS THOMPSON, WHY DELIBERATIVE DEMOCRACY? 10 (2004) ("The general aim of deliberative democracy is to provide the most justifiable conception for dealing with moral disagreement in politics.");
421. JÜRGEN HABERMAS, THE THEORY OF COMMUNICATIVE ACTION 189-93 (Thomas McCarthy trans., 1981) (describing means of finding normative commonality across cultural differences);
422. id. at 19 (discussing the means of converting self-interested dialogue into theoretical normative discourse).
423. See Cass R. Sunstein, The Law of Group Polarization, 10 J. POL. PHIL. 175, 177 (2002) (stating that "deliberation predictably pushes groups toward a more extreme point").
424. GUTMANN & THOMPSON, supra note 344, at 46.
425. James Johnson, Arguing for Deliberation: Some Skeptical Considerations, in DELIBERATIVE DEMOCRACY 161, 166 (Jon Elster ed., 1998).
426. Id. at 176;
427. see also BENJAMIN BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE 242-44 (1984) (finding that deliberation requires commonality of norms, but placing much value on autonomy and plurality).
428. BRUGE ACKERMAN &JAMES S. FISHKIN, DELIBERATION DAY 195 (2004) (noting that the average citizen may find the bureaucratic system "opaque" but still be engaged by policy issues such as global warming);
429. Susan C. Stokes, Pathologies of Deliberation, in DELIBERATIVE DEMOCRACY, supra note 347, at 123, 123 ("Public communication influencing . .. causal beliefs is as important as deliberation over normative matters, and perhaps more subject to manipulation.").
430. Stokes, supra note 349, at 128 ("[O]rganized interests shaped citizens' preferences over policies, and those endogenously formed policy preferences in turn caused a shift in government policy . . . .").
431. See Daniel A. Bell, Democratic Deliberation: The Problem of Implementation, in DELIBERATIVE POLITICS: ESSAYS ON DEMOCRACY AND DISAGREEMENT 70, 71-72 (Stephen Macedo ed., 1999) ("Many economic issues are so complex that it is difficult for non-experts to contribute meaningfully to the 'debate.'").
432. See GUTMANN & THOMPSON, supra note 344, at 43 ("The theory of deliberative democracy does not always in all circumstances demand the practice of deliberation.").
433. See id. at 54 (stating that deliberative groups that "enlist experts to answer questions and clarify matters of fact" tend to be less polarizing).
434. See ACKERMAN & FISHKIN, supa note 349, at 120 (proposing a $150 stipend to pay citizens to participate in a national "Deliberation Day");
435. BARBER, supra note 348, at 245-48 ("The problem of scale is the problem of communication, and to deal with the second is to deal with the first").
436. See GUTMANN Sc THOMPSON, supra note 344, at 31 (acknowledging that the large number of citizens in modern democracies creates significant participation costs in direct democracy).
437. See ACKERMAN & FISHKIN, supra note 349, at 189-93 (explaining how the introduction of deliberative democracy would add moral weight to political outcomes that address income distribution).
438. See Stokes, supra note 349, at 124, 134-35 (noting the effect public characterizations of welfare recipients have on the self-image of those recipients).
439. See Johnson, supa note 347, at 164 (observing that advocates of deliberative democracy often fail to meet the exacting standards they apply to those they critique).
440. GUTMANN & THOMPSON, supra note 344, at 11.
441. Id. at 56.
442. See ACKERMAN & FISHKIN, supra note 349, at 192 (conceding that political outcomes addressing economic equality may have legitimizing effects for the victorious party's policy, but arguing that they will be more significant in a deliberative democracy).
443. Id. at 53, 59;
444. BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 314-20 (1980);
445. Joshua Cohen, Democracy and Liberty, in DELIBERATIVE DEMOCRACY, supra note 347, at 185, 207-21 ("The principle of deliberative inclusion extends naturally from religious liberty to a wide guarantee of expressive liberty.").
446. GUTMANN & THOMPSON, supra note 344, at 142-43 ("When a political system is structured to give rich citizens far more political power than is warranted . . . , then deliberative processes will suffer.") ;
447. see generally JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 83 (William Rehg trans., 1996) (stating that "modern law is especially suited for the social integration of economic societies").
448. ACKERMAN & FISHKIN, supra note 349, at 189.
449. Cf. JEREMY WALDRON, THE DIGNITY OF LEGISLATION 151-56 (1999) (rejecting the idea espoused by many deliberative theorists that disagreement or lack of consensus is necessarily indicative of a failure of the deliberative system).