The Case for Permanent Foster Care

This article reviews historical developments in the social institution of foster care, leading up to the permanent planning revolution and current family preservation policies in the United States. Success rates of adoption, family preservation, and family reunification programs are examined, and a rationale for the inclusion of permanent foster care as an option for children is presented. Permanent foster care has several advantages: 1) it is federally and automatically funded; 2) it can lead to increased supervision of foster parents; 3) it creates more permanence for more children; 4) it promotes attachment through ensuring both child and foster parent stability. Models for permanent foster care already exist, in long-term foster care arrangements for special-needs children, and in subsidized adoption

Populism and Transparency: The Political Core of an Administrative Norm

Transparency has become a preeminent administrative norm with unimpeachable status as a pillar of democracy. But the rise of right-wing populism, reminiscent of older forms of militaristic authoritarianism, threatens transparency’s standing. Recently elected governments in Europe, Latin America, and North America represent a counter-movement away from liberal-democratic institutions that promote the visibility and popular accountability that transparency promises. Contemporary populist movements have not, however, entirely rejected it as an ideal. The populist rebuke of power inequities and its advocacy for popular sovereignty implicitly and sometimes explicitly include a demand for a more visible, accessible state. Populists’ seemingly hypocritical embrace of transparency in the face of their resistance to open government mandates demonstrates transparency’s important historical connections and conceptual affiliations with populism, in the process illuminating its complicated politics and the difficulty of ensuring legal compliance in a period of renewed populism. Drawing on transparency and populism’s historical development and using Donald Trump’s presidency as a case study, this article reveals the relationship between an administrative norm and a political movement and style, and what democracy’s current state portends for transparency’s future

The Folklore of Legal Biography

This essay reviews Spencer Weber Waller\u27s recent biography of the legal realist Thurman Arnold (NYU Press 2005). Arnold\u27s academic and popular writings during the 1930s - which not only critiqued what he saw as the foolishness and ill effects of legal formalism and political conservatism, but also recognized the symbolic authority of legal forms and conservative beliefs and the need for any reform movement to respect and appropriate them - force us to reconsider the entire project of legal biography. Arnold\u27s life and work reveal the ways in which the forces of modernity - forces that Arnold celebrated in his work and helped unleash in the New Deal and at Arnold & Porter - call into question the rugged individual that biography requires. Arnold\u27s critical realist project sought to uncover the historically contingent and ideological nature of the classical liberal conception of the subject who authors his own individual life; but at the same time, the culturalist side of Arnold\u27s work explains why this conception remains necessary, given the symbolic nature of a legal system and the deeply felt needs we have in residual concepts

THE TRANSPARENCY FIX: ADVOCATING LEGAL RIGHTS AND THEIR ALTERNATIVES IN THE PURSUIT OF A VISIBLE STATE

The administrative norm of transparency, which promises a solution to the problem of government secrecy, requires political advocacy organized from outside the state. The traditional approach, typically the result of organized campaigns to make the state visible to the public, has been to enact freedom of information laws (FOI) that require government disclosure and grant enforceable rights to the public. The legal solution has not proven wholly satisfactory, however. In the past two decades, numerous advocacy movements have offered different fixes to the information asymmetry problem that the administrative state creates. These alternatives now augment and sometimes compete with legal transparency regimes. This Article surveys and analyzes transparency advocacy campaigns and the “fix” that each proposes to the problems created by the state’s asymmetrical information advantage over the public. It sketches the history of four campaigns: the FOI movement in the U.S., the global anti-corruption movement (spearheaded by Transparency International), the digital transparency movement, and WikiLeaks. The Article offers two insights. First, although these movements share a basic set of assumptions and tell a similar policy story — secrecy is a pressing administrative problem that can be fixed with the right policies and institutional arrangements — they diverge significantly in how they understand not only the problem’s causes but the state itself. Second, and as a result, the Article unveils transparency as a contested political issue which masquerades as an administrative tool. Rooted in contestable claims about the state’s legitimacy and performance, the transparency fix leads to tendentious prescriptions about law, policy, and the state

The Takings Clause, Version 2005: The Legal Process of Constitutional Property Rights

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for revision and tightening after a stirring four-justice dissent in Kelo v. City of New London and an enormous public protest decrying the majority decision. Notwithstanding this reversal, the 2005 decisions offer a coherent approach to Takings Clause enforcement—albeit one that is likely to frustrate commentators, theorists, and property rights advocates. More clearly than ever before, the Court in its 2005 decisions abandoned the difficult, if not impossible, task of providing a clear normative justification for the Takings Clause. Instead, its decisions reveal a marked preference for preserving and furthering its vision of an institutional system of governance—a jurisprudence that is focused on the question of who should decide rather than on the substantive issue of what should be decided, and that is committed to the passive virtue of deference. In short, the Rehnquist Court explicitly chose to adopt a “legal process” approach to takings. Because it privileges structure and process over explicit considerations of substantive legal and normative issues, this approach is unsatisfactory to property and constitutional theorists; because it defers to government decisions, it is maddening to property rights advocates; and because it is technocratic and abstract, it is unsatisfactory to the public. Given the prominence of the legal process approach to constitutional review of state regulatory action in the post-New Deal era, however, judicial passivity remains attractive, if unromantic, to judicial actors. Ultimately, recognizing the Court’s shift away from defining constitutional property rights via the Takings Clause offers important descriptive and prescriptive insights into the future of takings law in the Roberts Court, especially if a majority of justices decide to tighten review of eminent domain actions or otherwise heighten judicial review under the Takings Clause

The Informational Ombudsman: Fixing Open Government by Institutional Design

[extract] The ombudsman has gradually emerged in the U.S. as a key tool among the various legal doctrines, institutions, and technologies used to reveal the government to the public. After the ombudsman’s initial development and implementation in northern Europe, several prominent administrative law scholars brought the institution to American policymakers and academics’ attention in the 1960s and 1970s during the initial wave of elite liberal disaffection with the regulatory state. Proponents during this initial period viewed the ombudsman as an independent entity within the administrative state that could, at least in theory, close the increasing distance between the bureaucracy and public. In its adaptation to the specific administrative task of open government law compliance and reform, the ombudsman has offered an institutional fix to the revealed deficiencies from which the legal rights approach to “freedom of information” suffers: the bureaucratic tendency to avoid complying with openness obligations and the expense and delays attendant to judicial review.This paper describes the ombudsman’s role in supporting the open government mandates of U.S. state and the U.S. federal governments, and fits it into a framework for understanding transparency that I have developed in earlier articles. I characterize the ombudsman as an institutional transparency fix, one that follows other such fixes—including most prominently the creation of legal rights to government information—in attempting to address the bureaucratic tendency to hoard information. Each fix, including the ombudsman, proceeds from prevailing assumptions about the best means to reveal the state, both reflecting and furthering historically-situated conceptions of government and its reform. Like the other fixes of the past fifty years, the ombudsman has made marginal gains in reforming open government laws and bureaucratic compliance with them. But it has not and it cannot make the state fully transparent or sufficiently transparent for open government advocates, for reasons I will discuss