Hostname: page-component-5f56664f6-kch4j Total loading time: 0 Render date: 2025-05-08T00:36:46.233Z Has data issue: false hasContentIssue false
  • English
  • Français

Confronting Government After Welfare Reform: Moralists, Reformers, and Narratives of (Ir)responsibility at Administrative Fair Hearings

Published online by Cambridge University Press:  01 January 2024

Vicki Lens
Get access Rights & Permissions [Opens in a new window]

Abstract

Almost 40 years ago, the Supreme Court, in the landmark case Goldberg v. Kelly (1970), provided welfare participants with a potentially potent tool for challenging the government welfare bureaucracy by requiring pre-termination hearings before welfare benefits were discontinued or reduced. In 1996, with the passage of the Personal Responsibility Work Opportunity Reconciliation Act (PRWORA), the rights talk of Kelly was officially replaced with the discourse of individual responsibility. Using observational data of administrative hearings and interviews with administrative law judges and appellants, this study explores how fair hearings have been affected by this official reconceptualization of rights. I find that hearings are not a panacea for challenging the more punitive aspects of welfare reform, but nor are they devoid of the possibility of justice. While hearings can replicate in style and substance the inequities, rigid adherence to rules, and moral judgments that characterize welfare relationships under the PRWORA, they can also be used as a mechanism for creating counternarratives to the dominant discourse about welfare. This study identifies two types of judges—moralist judges and reformer judges—and examines how their differing approaches determine which narrative emerges in the hearing room.

Type
Articles
Information
Law & Society Review , Volume 43 , Issue 3 , September 2009 , pp. 563 - 592
Copyright
© 2009 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Article purchase

Temporarily unavailable

Footnotes

This study was supported by a grant from the Fahs-Beck Fund for Research and Experimentation. Special thanks to the Law & Society referees for their helpful comments.

References

References

Abramovitz, Mimi (1996) Regulating the Lives of Women. Boston: South End Press.Google Scholar
Adler, Michael (2008) “The Justice Implications of ‘Activation Policies’ in the UK.” Paper presented at the Joint Meeting of the Canadian Law and Society Association and the Law and Society Association, Montreal, Canada.Google Scholar
Bane, Mary Jo, & Ellwood, David T. (1994) Welfare Realities: From Rhetoric to Reform. Cambridge, MA: Harvard Univ. Press.Google Scholar
Blank, Rebecca M., & Schmidt, Lucie (2001) “Work, Wages and Welfare,” in Blank, R. M. & Haskins, R., eds., The New World of Welfare. Washington, DC: Brookings Institution Press.Google Scholar
Brodkin, Evelyn (1986) The False Promise of Administrative Reform: Implementing Quality Control in Welfare. Philadelphia: Temple Univ. Press.Google Scholar
Brodoff, Lisa (2008) “Lifting Burdens: Proof, Social Justice, and Public Assistance: Administrative Hearings,” 32 New York University Rev. of Law & Social Change 131–89.Google Scholar
Bumiller, Kristin (1987) “Victims in the Shadow of the Law: A Critique of the Model of Legal Protection,” 12 Signs: Journal of Women in Culture & Society 421–39.CrossRefGoogle Scholar
Bussiere, Elizabeth (1997) (Dis)Entitling the Poor: The Warren Court, Welfare Rights, and the American Political Tradition. University Park, PA: Pennsylvania State Univ. Press.Google Scholar
Charmaz, Kathy (2006) Constructing Grounded Theory: A Practical Guide through Qualitative Analysis. Thousand Oaks, CA: Sage Publications.Google Scholar
Conley, John M., & O'Barr, William M. (1990) Rules Versus Relationships: The Ethnography of Legal Discourse. Chicago: Univ. of Chicago Press.Google Scholar
Conley, John M. (2005) Just Words: Law, Language, and Power. Chicago: Univ. of Chicago Press.Google Scholar
Cowan, David (2004) “Legal Consciousness: Some Observations,” 67 The Modern Law Rev. 928–58.CrossRefGoogle Scholar
Davis, Martha F. (1993) Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973. New Haven, CT: Yale Univ. Press.Google Scholar
Emerson, Robert M., et al. (1995) Writing Ethnographic Field Notes. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Gais, Thomas L., et al. (2001) “Implementation of the Personal Responsibility Act of 1996,” in Blank, R. M. & Haskins, R., eds., The New World of Welfare. Washington, DC: Brookings Institution Press.Google Scholar
Gilliom, John (2001) Overseers of the Poor: Surveillance, Resistance, and the Limits of Privacy. Chicago: Univ. of Chicago Press.Google Scholar
Handler, Joel F. (1986) The Conditions of Discretion: Autonomy, Community, Bureaucracy. New York: Russell Sage Foundation.Google Scholar
Handler, Joel, & Hasenfeld, Yeheskel (2007) Blame Welfare: Ignore Poverty and Inequality. Cambridge, UK: Cambridge Univ. Press.Google Scholar
Hasenfeld, Yeheskel (2000) “Organizational Forms as Moral Practices: The Case of Welfare Departments,” 74 Social Service Rev. 329–51.CrossRefGoogle Scholar
Kornbluh, Felicia (2007) The Battle Over Welfare Rights: Poverty and Policy in Modern America. Philadelphia: Univ. of Pennsylvania Press.Google Scholar
Lens, Vicki (2007) “Administrative Justice in Public Welfare Bureaucracies: When Citizens (Don't) Complain,” 39 Administration & Society 382–408.CrossRefGoogle Scholar
Lens, Vicki (in press) “Are Fair Hearings Fair? Examining Administrative Mechanisms to Correct Errors in Public Welfare Bureaucracies,” J. of Public Administration Research & Theory.Google Scholar
Lipsky, Michael (1984) “Bureaucratic Disentitlement in Social Welfare Programs,” 58 Social Service Rev 3–27.CrossRefGoogle Scholar
Little, Deborah (1999) “Independent Workers, Dependable Mothers: Discourse, Resistance, and AFDC Workfare Programs,” Summer Social Politics 161–202.CrossRefGoogle Scholar
Lurie, Irene (2006) At the Front Lines of the Welfare System: A Perspective on the Decline in Welfare Caseloads. Albany, NY: Rockefeller Institute Press.Google Scholar
Maynard-Moody, Steven, & Musheno, Michael (2003) Cops, Teachers, Counselors: Stories from the Front Lines of Public Service. Ann Arbor: Univ. of Michigan Press.CrossRefGoogle Scholar
Mead, Lawrence (1997) The New Paternalism: Supervisory Approaches to Poverty. Washington, DC: Brookings Institution Press.Google Scholar
Merry, Sally Engle (1990) Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans. Chicago: Univ. of Chicago Press.Google Scholar
Meyers, Marcia, et al. (1998) “On the Front Lines of Welfare Delivery: Are Workers Implementing Reforms?,” 17 J. of Policy Analysis and Management 1–22.3.0.CO;2-I>CrossRefGoogle Scholar
Munger, Frank (1998) “Immanence and Identity: Understanding Poverty through Law and Research,” 32 Law & Society Rev. 931–67.CrossRefGoogle Scholar
Munger, Frank (2002) “Dependency by Law: Welfare and Identity in the Lives of Poor Women,” in Sarat, A. et al., eds. Lives in the Law. Ann Arbor: Univ. of Michigan Press.Google Scholar
New York State Office of Temporary and Disability Assistance (2007) Statistical Report on the Operations of New York State Temporary Assistance Programs. Table 31, p. 43. Administrative Hearings-Hearings Requested Total Temporary Assistance July 2006–June 2007.Google Scholar
New York State Unified Court System (2009) New York City Small Claims Court, Civil Part, http://www.nycourts.gov/courts/nyc/smallclaims/index.shtml.Google Scholar
Perales, Cesar (1990) “The Fair Hearing Process: Guardian of the Social Service System,” 56 Brooklyn Law Rev. 889–98.Google Scholar
Rector, Robert E., & Youseff, Sarah E. (1999) The Determinants of Welfare Caseload Decline. Washington, DC: The Heritage Foundation.Google Scholar
Riccucci, Norma M., et al. (2004) “The Implementation of Welfare Reform Policy: The Role of Public Managers in Front Line Practices,” 64 Public Administration Rev. 438–48.CrossRefGoogle Scholar
Sandfort, Jodi R., et al. (1999) “The Mirror Has Two Faces: Welfare Clients and Front-Line Workers View Policy Reforms,” 3 J. of Poverty 71–91.CrossRefGoogle Scholar
Sarat, Austin (1990) “‘The Law Is All Over’: Power, Resistance and the Legal Consciousness of the Participants,” 2 Yale J. of Law & Humanities 343–79.Google Scholar
Seccombe, Karen (2007) So You Think I Drive a Cadillac? Welfare Recipients' Perspectives on the System and Its Reform. Boston: Allyn and Bacon.Google Scholar
Silbey, Susan S. (2005) “After Legal Consciousness,” 1 Annual Rev. of Law and Social Science 323–68.CrossRefGoogle Scholar
Smith, Dorothy E. (2005) Institutional Ethnography: A Sociology for People. Lanham, MD: AltaMira Press.Google Scholar
Soss, Joe (2002) Unwanted Claims: The Politics of Participation in the U.S. Welfare System. Ann Arbor: Univ. of Michigan Press.Google Scholar
Stimson, Gerry V. (1986) “Viewpoint: Place and Space in Sociological Fieldwork,” 43 The Sociological Rev. 641–56.Google Scholar
Super, David K. (2005) “Are Rights Efficient? Challenging the Managerial Critique of Individual Rights,” 93 California Law Rev. 1051–142.Google Scholar
Tyler, Tom (2006) Why People Obey the Law. Princeton, NJ: Princeton Univ. Press.CrossRefGoogle Scholar
U.S. Department of Health and Human Services (2006) Table 25. Temporary Assistance for Needy Families—Active Cases: Percent Distribution of TANF Adult Recipients by Educational Level October 2005–September 2006, http://www.acf.hhs.gov/programs/ofa/character/FY2006/tab25.htm.Google Scholar
White, Lucie E. (1990a) “Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G.,” 38 Buffalo Law Rev. 1–58.Google Scholar
White, Lucie E. (1990b) “Goldberg v. Kelly: On the Paradox of Lawyering for the Poor,” 56 Brooklyn Law Rev. 861–87.Google Scholar
Yngvesson, Barbara (1993) Virtuous Citizens, Disruptive Subjects: Order and Complaints in a New England Court. New York: Routledge.Google Scholar

Cases Cited

Dandridge v. Williams, 397 U.S. 471 (1970).CrossRefGoogle Scholar
Goldberg v. Kelly, 397 U.S. 254 (1970).CrossRefGoogle Scholar

Statutes Cited

Personal Responsibility Work Opportunity Reconciliation Act of 1996, 42 U.S.C. 402 (1996).Google Scholar
Social Security Act of 1935, Pub. L. No. 271, 49 Stat. 620 (1935) (codified as amended at 42 U.S.C. § 601 et seq.).Google Scholar