Skip to main content Accessibility help

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

  • Kathleen G. Noonan, Charles F. Sabel and William H. Simon


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.



Hide All
ABA Center on Children and the Law. 2005. Child Welfare Consent Decrees: Analysis of Thirty‐Five Court Actions from 1995 to 2005. Chicago: American Bar Association.
Banerjee, Abhijit. 2007. Inside the Machine: Toward a New Development Economics. March/April, Boston Review.
Bartholet, Elizabeth. 1999. Nobody's Children: Abused Children, Foster Drift, and the Adoption Alternative. Boston: Beacon Press.
Bazelon Center for Mental Health Law. 1998. Making Child Welfare Work: How the R. C. Lawsuit Forged New Partnerships to Protect Children and Sustain Families. Washington, DC: Bazelon Center on Mental Health Law.
Center for the Study of Social Policy. 2003. Improving the Performance and Outcomes of Child Welfare Through State Improvement Plans (PIPs). (accessed July 1, 2008).
Chayes, Abram. 1976. The Role of the Judge in Public Law Litigation. Harvard Law Review 89:1281–316.
Child Welfare Policy and Practice Group. n.d. (a). Implementation of Alabama's R. C. Consent Decree: Creating a New Culture of Practice. (accessed February 22, 2009).
Child Welfare Policy and Practice Group. n.d. (b). The Qualitative Service Review Process. (accessed July 1, 2008).
Christian, Steve. 2001. Child and Family Services Reviews. NCSL State Legislative Report. National Conference of State Legislatures. (accessed February 1, 2009).
Costin, Lela B., Karger, Howard Jacob, and Stoesz, David. 1996. The Politics of Child Abuse in America. New York: Oxford University Press.
Crosby, Philip B. 1984. Quality Without Tears. New York: McGraw‐Hill.
Dennis, Michael J., and Stewart, David P. 2004. Justiciability of Economic, Social, and Cultural Rights. American Journal of International Law 98:462515.
Dodge, Kenneth, Kupersmidt, Janis, and Fontaine, Reid. n.d. Willie M.: A Legacy of Legal, Social, and Policy Change. Durham, NC: Duke University (Center for Child and Family Policy).
Dorf, Michael, and Sabel, Charles. 1998. A Constitution of Democratic Experimentalism. Columbia Law Review 98:267473.
Edelman, Lauren, Uggen, Christopher, and Erlanger, Howard. 1999. The Endogeneity of Legal Regulation: Grievance Procedures as Rational Myth. American Journal of Sociology 105:506–54.
Fuller, Lon L. 1978. The Forms and Limits of Adjudication. Harvard Law Review 92:358409.
Garrison, Marsha. 1987. Child Welfare Decisionmaking: In Search of the Least Drastic Alternative. Georgetown Law Journal 75:1745–828.
Garrison, Marsha. 2005. Reforming Child Protection: A Public Health Perspective. Virginia Journal of Social Policy and Law 12:590637.
Guggenheim, Martin. 2005. What's Wrong With Children's Rights? Cambridge, MA: Harvard University Press.
Government Accountability Office. 2003. Most States Are Developing Statewide Information Systems, but Reliability of Child Welfare Data Could Be Improved (GAO 03‐809, July). Washington, DC: Government Accountability Office.
Handler, Joel. 1986. The Conditions of Discretion: Autonomy, Community, Bureaucracy. New York: Russell Sage Foundation.
Handler, Joel. 2004. Social Citizenship and Workfare in the United States and Europe: The Paradox of Inclusion. Cambridge: Cambridge University Press.
Hanson, Chris. 1994. Making It Work: Implementation of Court Orders Requiring Restructuring of State Executive Branch Agencies. In Child Parent, and State: Law and Policy Reader, ed. Humm, S. Randall, 224–36. Philadelphia: Temple University Press.
Harlow, Carol. 1999. Accountability, New Public Management, and the Problems of the Child Support Agency. Journal of Law and Society 26:150–74.
Hayek, Friedrich. 1944. The Road to Serfdom. Chicago: University of Chicago Press.
Human Systems and Outcomes. 2005. Quality Service Review: Protocol for Use by Certified Reviewers. In authors' possession.
Huntington, Clare. 2006. Rights Myopia in Child Welfare. UCLA Law Review 53:637700.
Kaplan, Robert S., and Norton, David P. 1996. The Balanced Scorecard: Translating Strategy Into Action. Cambridge, MA: Harvard Business School Press.
Lipsky, Michael. 1980. Street‐Level Bureaucracy: Dilemmas of the Individual in Public Service. New York: Russell Sage Foundation.
Lipsky, Michael. 1984. Bureaucratic Disentitlement in Social Welfare Programs. Social Service Review 58:327.
Lipsky, Michael, and Smith, Steven Rathgeb. 1989. Nonprofit Organization, Government, and the Welfare State. Political Science Quarterly 104:625–48.
Lowry, Marcia. 1999-2000. Foster Care and Adoption Reform Litigation: Implementing the Adoption and Safe Families Act of 1997. St. John's Journal of Legal Commentary 14:447–56.
Mashaw, Jerry L. 1974. The Management Side of Due Process: Some Theoretical and Litigation Notes on the Assurance of Accuracy, Fairness, and Timeliness in the Adjudication of Social Welfare Claims. Cornell Law Review 59:772824.
Mashaw, Jerry L. 2006. Accountability and Institutional Design: Some Thoughts on the Grammar of Governance. In Public Accountability: Designs Dilemmas, Experiences, ed. Dowdle, Michael, 115–56. Cambridge: Cambridge University Press.
McCubbins, Matthew, and Schwartz, Thomas. 1984. Congressional Oversight Overlooked: Police Patrols versus Fire Alarms. American Journal of Political Science 28:1679.
Minow, Martha. 1990. Making All the Difference. Ithaca, NY: Cornell University Press.
Munson, Carlton, 1979. Supervision in Social Work: Classic Statements and Theoretical Issues. New York: Free Press.
National Child Welfare Resource Center for Organizational Improvement. 2007. Comments on the Second Round … An Interview with Jerry Milner, Senior Child Welfare Specialist. (accessed March 11, 2009).
National Coalition for Child Protection Reform. 2003. The Trouble with Child and Family Services Reviews. (accessed July 1, 2008).
National Economic and Social Development Office. 2005. The Developmental Welfare State. Dublin: National Economic and Social Development Office.
New Jersey Department of Children and Families. 2004a. A New Beginning: The Future of Child Welfare in New Jersey. July 9. (accessed July 1, 2008).
New Jersey Department of Children and Families. 2004b. Enforceable Elements of the New Jersey Child Welfare Plan. July 19. On file with authors.
New Jersey Department of Children and Families. 2005. New Jersey Period I Monitoring Report, February. (accessed March 5, 2009).
New Jersey Department of Children and Families. 2008. New Jersey Period III Monitoring Report, April 16. (accessed March 5, 2009).
Platt, Anthony. 1977. The Child Savers, 2nd ed. Chicago: University of Chicago Press.
Ramji‐Nogales, Jaya, Schoenholtz, Andrew, and Schrag, Philip. 2008. Refugee Roulette: Disparities in Asylum Adjudication. Stanford Law Review 60:295411.
Roberts, Albert R., and Yeager, Kenneth A. 2006. Foundations of Evidence‐Based Social Work Practice. New York: Oxford University Press.
Ross, Catherine. 2003. The Tyranny of Time: Vulnerable Children, Bad Mothers, and Statutory Deadlines in Parental Termination Proceedings. Virginia Journal of Social Policy and Law 11:176228.
Sabel, Charles F. 1995. Learning by Monitoring: The Institutions of Economic Development. In Handbook of Economic Sociology, ed. Smelser, Neil and Swedberg, Richard, 135–65. Princeton, NJ: Princeton University Press.
Sabel, Charles F., and Simon, William H. 2004. Destabilization Rights: How Public Law Litigation Succeeds. Harvard Law Review 117:1015–101.
Sandler, Ross, and Schoenbrod, David. 2003. Democracy by Decree. New Haven, CT: Yale University Press.
Simon, William H. 1984. Legality, Bureaucracy, and Class in the Welfare System. Yale Law Journal 92:1198–269.
Simon, William H. 2006. Toyota Jurisprudence: Legal Theory and Rolling Rule Regimes. In Law and New Governance in the EU and the US, ed. De Burca, Grainne and Scott, Joanne, 3764. Oxford: Hart Publishing Co.
Stack, Barbara White. 2005. Law to Increase Adoptions Results in More Orphans. Seattle Post-Intelligencer, January 3. (page no longer active).
Sunstein, Cass. 2000. Deliberative Trouble: Why Groups Go to Extremes. Yale Law Journal 110:71120.
Teubner, Gunther, ed. 1986. After Legal Instrumentalism?: Strategic Models of Post‐Regulatory Law. In Dilemmas of Law in the Welfare State, 305–13. Berlin: Walter de Gruyter.
Tushnet, Mark. 2003. Social Rights and the Forms of Judicial Review. Texas Law Review 82:1895–920.
US Department of Health and Human Services. Administration for Children and Families, Comprehensive Family Assessment Process. (accessed March 5, 2009).
Utah Division of Child and Family Services. n.d. Practice Guidelines and Rules. (accessed July 1, 2008).
Utah Division of Child and Family Services. 1999. The Milestone Performance Plan. (March 5, 2009).
Utah Division of Child and Family Services. 2004. Case Process Review Questions—2004. Not published. In authors' possession.
Utah Division of Child and Family Services. 2006a. Quality Case Review: Northern Region. Not published. In authors' possession.
Utah Division of Child and Family Services. 2006b. Quality Case Review: Salt Lake City Region. Not published. In authors' possession.
Utah Division of Child and Family Services. 2006c. Quality Case Review: Western Region. Not published. In authors' possession.
Wald, Michael S., Carlsmith, J. M., and Liederman, P. H. 1988. Protecting Abused and Neglected Children. Cambridge, MA: Harvard University Press.
Wilson, James Q. 1968. Varieties of Police Behavior. Cambridge, MA: Harvard University Press.
Charlie H. V. Whitman, 83 F. Supp. 2d 476, 483–84 (D.N.J. 2000).
David C. v. Huntsman, Civil No. 2:93‐CV‐00206TC (D. Utah), Agreement to Terminate Lawsuit, May 11, 2007.
David C. v. Leavitt, 13 F. Supp. 2d 1206 (D. Utah 1998).
DeShaney v. Winnebago Department of Social Services, 489 U.S. 189 (1989).
G. L. v. Stangler, 873 F. Supp. 252 (D. Mo. 1994).
G. L. v. Zumwalt, 564 F. Supp. 1030 (W.D. Mo. 1983).
Goldberg v. Kelly, 397 U.S. 254 (1970).
Heckler v. Campbell, 461 U.S. 458 (1983).
Pennhurst State School v. Halderman, 451 U.S. 1 (1981).
R. C. v. Walley, 2007 WL 118101 (M.D. Ala. 2007).
R. C. v. Walley, Civil No. 88‐H‐1170‐N (M.D. Ala.). Consent Decree. June 5, 1991.
R. C. v. Walley Consent Decree: Monitor's Report to the Court in Response to Court's Order Directing the Monitor to Conduct On‐Site Reviews, n.d.
Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992).
Suter v. Artist M., 503 U.S. 347 (1992).
Youngberg v. Romeo, 457 U.S. 307 (1982).
Minister of Health v. Treatment Action Campaign, 2002 (5) SALR 721 (CC) (S.Afr.).
South Africa v. Grootboom, 2000 (11) BCLR 1169 (CC) (S. Afr.).
Adoption and Safe Families Act (ASFA); Pub. L. No. 105–89 (1997), 42 U.S.C. section 1305 et seq.
Adoption Assistance and Child Welfare Act; Pub. L. No. 96–272 (1980), 42 U.S.C. section 670 et seq.
Child Abuse Prevention and Treatment Act; 42 U.S.C. section 5101 (1974), 42 U.S.C. section 5101 et seq.
Rehabilitation Act; Pub. L. No. 93–112 (1973), 29 U.S.C. section 791.
Social Security Act; Pub.L. No. 74–271 (1935), 42 U.S.C. section 301 et seq.

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

  • Kathleen G. Noonan, Charles F. Sabel and William H. Simon


Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed