Academic

Melish on New Governance & Poverty

By Lawrence Solum

Tara J. Melish (University of Notre Dame Law School) has posted Maximum Feasible Participation of the Poor: New Governance, New Accountability, and a 21st Century War on the Sources of Poverty on SSRN.  Here is the abstract:

In 1964, President Lyndon B. Johnson called for a Nationwide War on the Sources of Poverty to "strike away the barriers to full participation" in our society. Central to that war was an understanding that given poverty's multi-layered complexity, finding solutions to it required the "maximum feasible participation" of affected communities in identifying its varied sources and preparing long-range plans of local attack. Equally central, however, was an understanding that such decentralized problem-solving could not be fully effective without national-level orchestration and support. As such, LBJ set up at Office of Economic Opportunity, located in the Executive Office itself, to support - through encouragement, funding, and coordination - grassroots community efforts to eliminate locally-identified and locally-prioritized barriers to economic opportunity.

This Article argues that while the regulatory and political context of the 1960s provided inauspicious ground for LBJ's "maximum feasible participation" policy to effectively take root, four decades later two broad paradigm shifts have yielded a new, more fertile opportunity framework. The first involves the transition in U.S. regulatory law away from command-and-control structures favoring fixed rules and centralized enforcement, toward a "New Governance" model that privileges decentralization, flexibility, stakeholder participation, performance monitoring, and guided discretion. The second is the concurrent paradigm shift in U.S. social movement approaches to poverty - what I call "New Accountability" - which likewise promotes local voice and inclusive participation, decentralized performance monitoring around human rights indicators, and negotiated policymaking (rather than non-negotiable material demands and mass confrontation, the preferred tactics of 1960s activism). Supported by a renewed U.S. interest in collecting and reporting performance indicators for government programs, these two shifts converge to create a theory and policy-based environment in which it is both practically feasible and normatively coherent to reembrace the participatory orientation of the early "War on the Sources of Poverty" strategy. The challenge for U.S. social welfare rights law, I argue, is how to bring these two complimentary paradigms together in constructive synergy to mount a 21st century battle against poverty. A set of national subsidiarity-based institutions to support this effort is proposed in Part IV.

Full post as published by Legal Theory Blog on September 26, 2008 (boomark / email).