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

Kathleen G. Noonan

University of Pennsylvania, Perelman School of Medicine, Children's Hospital of Philadelphia ; University of Pennsylvania - Perelman School of Medicine

Charles Sabel

Columbia University - Columbia Law School

William H. Simon

Columbia University - Law School; Stanford University - Stanford Law School

Date Written: Summer 2009

Abstract

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.

Suggested Citation

Noonan, Kathleen G. and Sabel, Charles Frederick and Simon, William H., 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] (Summer 2009). Law of Social Inquiry, Volume 34, Issue 3, Summer 2009; Columbia Public Law Research Paper No. 08-162. Available at SSRN: https://ssrn.com/abstract=1088020 or http://dx.doi.org/10.2139/ssrn.1088020

Kathleen G. Noonan

University of Pennsylvania, Perelman School of Medicine, Children's Hospital of Philadelphia ( email )

34th Street and Civic Center Boulevard
Philadelphia, PA 19104-4399
United States

University of Pennsylvania - Perelman School of Medicine ( email )

423 Guardian Drive
Philadelphia, PA 19104
United States

Charles Frederick Sabel

Columbia University - Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-2618 (Phone)
212-854-7946 (Fax)

William H. Simon (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
Jerome Greene Hall, Mailbox A-18
New York, NY 10027
United States
212-854-9215 (Phone)
212-854-7946 (Fax)

Stanford University - Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
(650) 723-4605 (Phone)

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