Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform [formerly titled: The Rule of Law in the Experimentalist Welfare State: Lessons from Child Welfare Reform]
46 Pages Posted: 28 Jan 2008 Last revised: 7 Oct 2015
Date Written: Summer 2009
Current trends intensify the longstanding problem of how the rule-of-law should be institutionalized in the welfare state. Welfare programs are being re-designed to increase their capacities to adapt to rapidly changing conditions and to tailor their responses to diverse clienteles. These developments challenge the understanding of legal accountability developed in the Warren Court era. This Article reports on an emerging model of accountable administration that strives to reconcile programmatic flexibility with rule-of-law values. The model has been developed in the reform of state child protective services systems, but it has potentially broad application to public law. It also has novel implications for such basic rule-of-law issues as the choice between rules and standards, the relation of bureaucratic and judicial control, the proper scope of judicial intervention into dysfunctional public agencies, and the justiciability of "positive" (or social and economic) rights.
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