Legal Accountability in the Service‐Based Welfare State: Lessons from Child Welfare Reform

Abstract

Current trends intensify the longstanding problem of how the rule of law should be institutionalized in the welfare state. Welfare programs are being redesigned 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.

Adaptive Policies for Reducing Inequalities in the Social Determinants of Health

“…25,26 In the 1980s, Rondinelli argued that policy must "cope more effectively with… uncertainty and complexity… requiring an adaptive approach that relies on strategic planning, on administrative procedures that facilitate innovation, responsiveness and experimentation and decision-making processes that join learning with action. " 27 Since this time, the need for learning and adaptation have become well-acknowledged in natural resource management and environmental policy discourse, 28 public policy, [29][30][31] and in public health policy discourse. 11 Swanson et al 18,22 outlines 4 key features of adaptive policies: 1.…”

Optimization and its Discontents in Regulatory Design: Bank Regulation as an Example

“…(See Rees 1994, Noonan, Sabel, andSimon 2009. ) How the peer review process would embrace bank personnel is unclear.…”

Minimalism and Experimentalism in the Administrative State

“…It can mandate publication of risk management plans and can encourage or mandate information exchange through peer review. It can subsidize demonstration projects in which progressive firms get assistance in customizing new technology to local conditions so that its potential can be publicized to the firm's peers (Von Hippel 2008;Carpenter 2001;Gawande 2009;Sabel 2009). …”

“…The social professions increasingly see individual problems as functions of multiple and diverse causes that call for interdisciplinary diagnosis and intervention. In the most highly regarded child protective service programs, the case worker's chief responsibility is to form and periodically convene a team that typically includes key family members, a health professional, lawyers for the child and the state, a therapist, and perhaps a teacher (Noonan, Sabel, Simon 2009). …”

“…These include child protective services, health care, both "special" and general education, job training, mental health services, and disability capacitation. They typically require highly individuated planning, pervasive performance measurement, and efforts to aggregate and disseminate information about effective practices (Noonan, Sabel, Simon 2009). 17 Kaplan and Norton (1996, 150) propose use of a "balanced scorecard" consisting of parallel sets of "outcome and "performance" measures: "Outcome measures without performance [measures] do not communicate how the outcomes are achieved….…”