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Abstract:
This paper examines the tremendous changes in the administrative structure of the welfare system that have occurred since 1996. The new administrative model emerging from welfare reform eschews reliance on rules and instead invests ground level agency personnel with substantial discretion. This shift redistributes power between welfare recipients and administrators. Central authorities continue to maintain control by channeling the discretion that ground level officials exercise in order to achieve particular outcomes. This channeling takes place through a variety of means, including performance based evaluation systems and efforts to redefine the institutional culture of welfare offices. These techniques are part of a broad trend in public administration that seeks to make government agencies function like entrepreneurial organizations. This new model raises serious questions of public accountability. In the new system of welfare administration, critical policy choices are reflected in incentive and evaluation systems rather than formal rules. As policy decisions are made in ways that are less visible, there are fewer points of public input.

Moreover, in the new regime the efficacy of administrative hearings as a means of holding agencies accountable to recipients is diminished. The paper suggests several possible means of facilitating public participation and fair treatment. It concludes by urging that scholars, policy makers and advocates focus their attention on developing new mechanisms to provide effective public participation in administrative policy making and implementation in this area.

Abstract:
The World Trade Center Victims' Compensation Fund is based on a blend of a private law regime (tort law) and government benefit programs rooted in public law. Unlike other programs that straddle the divide between these two regimes, the Compensation Fund has no of funding mechanism that distances government from the distributional choices reflected in both the compensation scheme and in individual compensation decisions.As a result, the Fund raises the possibility of awards determined by a tort model that are directly funded out of the U.S. treasury. Looked at from the standpoint of social welfare law, such a distributional scheme appears problematic. Departures from the tort model of compensation, however, may appear illegitimate to those who see the Fund solely as a surrogate for the tort system. This tension underlies many of the dilemmas that Special Master Kenneth Feinberg has faced. He has sought to resolve them by publicly stating that he will reign in the extreme consequences of the tort system. At the same time, he has reserved discretion in handling individual cases. This cloud of discretion obscures the actual way in which he has chosen to resolve the tensions between the two systems.

Similar tensions inform the procedural regime created by Congress and Special Master Feinberg. Should the Special Master be viewed as a mediator in a mass tort case, or as a government adjudicator? The paradigm selected has important ramifications for the procedures used by Special Master Feinberg and for the standards by which his conduct should be assessed. Special Master Feinberg has gravitated closer to a mediation model rather than an adjudicative approach. This choice neglects the fact that claimants have significant due process interests at stake that are not fully protected by a mediation approach. Moreover, the mediation model places great emphasis on the conduct and statements of the Special Master, making it difficult to conceive of the Fund a legal system, rather than an expression of Mr. Feinberg's personal preferences. This overemphasis on the person of the Special Master is a major flaw in the program's design.