533575393
Dartmouth 2K9
1
1AC – Justice Gap (1/2)
The vast majority of the poor lack access to adequate legal services
Washington Post, 10/15/2005 (http://www.encyclopedia.com/doc/1P2-85652.html)
At least 80 percent of low-income Americans who need civil legal assistance do not receive any, in part because
legal aid offices in this country are so stretched that they routinely turn away qualified prospective clients, a new
study shows. Roughly 1 million cases per year are being rejected because legal aid programs lack the resources to
handle them, according to the study, "Documenting the Justice Gap in America," by the Legal Services Corp. (LSC), which
funds 143 legal aid programs across the country.
This lack of legal access destroys public involvement in government
Kimberly Breedon, J.D. University of Cincinatti, Winter 2008 (“Toward a Cumulative Effects Doctrine in First Amendment
Jurisprudence.” Loyola Law Review. 54 Loy. L. Rev. 855. Lexis //ZE)
Petitioning the courts is an important political right for two reasons. First, access to the judicial forum is essential for vindicating
individual legal rights. Second, adjudicatory proceedings - albeit indirectly and to a lesser degree than in the political branches enable citizens to participate in the decision-making processes that construe statutes and constitutions, develop law, and determine
policy interpretations. The influence of citizen participation on courts' decisions is not as evident as it is on those of the legislature and
executive, but it is important, particularly in an adversarial framework. 27 Litigants shape the direction and content of the courts'
decisions by serving as the source for evidence and arguments and by framing the contours of the controversy. 28 Courts shape
legislative policy outcomes ex post and interpret the law by developing precedent and legal doctrines, and by construing legal texts all "with the participation of affected parties that may otherwise be excluded because of their weakness in the electoral process." 29
Thus, the degree of the citizenry's access to the courts, as is true for their access to the electoral branches, will determine the extent to
which they influence outcomes. Citizens' access to adjudicatory bodies arguably assumes even greater importance in the context of
challenges to administrative decisions, which are made by unelected government officials and are therefore beyond the reach of voters
who may be dissatisfied with the outcomes. 30 Many of these decisions significantly affect people's health, safety, or welfare. To
ensure that the laws and regulations are properly enforced, citizens must be able to challenge agency decisions as a mechanism for
checking officials' discretion. The judiciary provides the forum for that check and ensures that agency decisions are made according to
the rule of law, not the rule of men. 31 Without open access to the courts, citizens lose this important check on the power of the state,
32 which, in some circumstances, may also [*862] represent the power of the politically well-connected. 33 B. Poverty as an
Impediment to Court Access Litigation may seem an unlikely candidate for promoting democratic self-government, but it serves
precisely that role (among others). Court decisions determine the contours of public policy, protect individual rights, and ensure that
the rule of law prevails - and litigants help shape courts' decision-making. 34 Thus, political rights in a participatory democracy must
include open access to courts, 35 and - as a political right - such access must be equally available and it must be meaningful. 36
Economic inequalities, however, present obstacles to achieving equal political rights, as much so in the courts as in the electoral
branches. Economic advantages, which are almost always conjoined with educational advantages and better access to information,
make individuals and organizations better able and more inclined to exercise political rights. 37 In other words, equality of rights in
theory does not necessarily mean equality of rights in practice. These inequalities may be more readily apparent in the political
branches, but they create significant disparities in the adjudicatory context as well. Economic differences in administrative and
judicial proceedings transform into inequalities in political rights because of the de facto requirement that parties have legal assistance
to advocate their claims effectively. 38 All too often, the poor cannot obtain legal assistance. Without legal counsel, they are
significantly less able to participate meaningfully in the courts' decision-making process and are, therefore, not only less able to
advance their own case effectively, but also less likely to be able to help shape the contours of legal doctrine and policy interpretation.
39 As Susan Lawrence insightfully observes, "when access to the judicial forum is limited, not by the constraints of justiciability but
by the financial ability of the aggrieved to retain counsel," the result is, to some extent, a threat to important elements of selfgovernment in that the [*863] right to petition the government through the courts is, at best truncated, and at worst, obliterated. 40
Last printed 3/8/2016 10:57:00 AM
1
533575393
Dartmouth 2K9
2
1AC – Justice Gap (2/2)
Ensuring public involvement in government is necessary for planetary survival
Kenneth M. Dolbeare, Prof. of Political Econ. @ Evergreen, and Linda Medcalf, Prof. of Poli Sci @ Evergreen , ’87
[The Case Against the Constitution, “Class and Pluralism in America: the Constitution Reconsidered,” p. 138-140]
Where have all the voters gone? They have caught on that the system is rigged. Popular majorities' efforts to change either the
distribution of wealth and power or the basic policies that seem necessary to maintain that structure of wealth and power simply don't
seem possible. To be sure, decades of accomplishment by the ideological defenders and celebrants of this system have encouraged
Americans to accept it as "democracy." Americans learn to want or, more likely, consider inevitable whatever is produced, to settle for
various diversionary satisfactions, and/or to fear change and even suspect that those who do seek change must have self-interested and
unpatriotic motives. These are ideological rationalizations for the central fact that the Hamiltonian Constitution excludes people from
directly affecting important public policy outcomes. This is not to say that there is no history of popular impact on government, or that
the Supreme Court is merely a tool of the corporations. Either such caricature of our argument would be silly. What is important is
that popular impact, such as it is, can be made effective only in very limited ways through the electoral process. For the most part, it
must come through disruptionriots, massive strikes, demonstrations involving the threat of violence, and other attacks on the social
order itself. What does it mean for a popular government that its people are politically effective only when they threaten to destroy it?
The Supreme Court has made many decisions, particularly in the middle years of this century, that advanced basic democratic rights.
But that was a result of judicial appointments, not an attribute of the institution. The Supreme Court has, and can, and may well again,
make precisely the opposite kinds of decisions. What does it mean for a popular government that its basic policies can be set by a
transitory majority drawn from a body of nine life-appointed lawyers? What we are saying is that the Framers' two major goals are
threatened today by the success with which Hamilton and his followers implemented those goals. We do not have a stable political
economic system, and we do not have the capacity to make the choices necessary to assure a strong and successful American political
economy. Our political system works by fits and starts. It is neither responsive nor accountable and it lacks solid grounding in the
body of its people. It sits and waits for the next crisis. Unfortunately, to solve that crisis, it may have to transform itself into something
that will be very difficult to rationalize as "democracy." We have not addressed the great issues of nuclear war, planetary survival,
or even American economic viability in a drastically changing world economy-not because the people don't care, but because there is
no linkage between the people's felt needs and their policymakers. No such basic policies can be implemented, even if policymakers
were to concur, without the sustained support of some major portion of the people. To solve our problems, or merely to fulfill the
Framers' goals in the wholly different conditions of our times, we will have to come to terms with Hamilton's Constitution in a
realistic manner. Perhaps the best way to honor the Framers' work is not to join in obfuscating celebrations, but to act as they did
under like circumstances. We might start by critically exploring the ways in which today's analogue of the Articles of Confederation is
defective in achieving goals that are necessary and desirable for the future. Obviously, like the Framers, we would have to address
basic principles of social order and purpose-if we have not completely forgotten how to do so. (That we have forgotten is strongly
suggested by the nature of the proposals currently offered for constitutional "reform. 1136 ) Curing the defects of Hamilton's
Constitution may not be possible, for many reasons. It may be that patterns of material advantage, or the depth of the problems we
face, or the sheer size of the country, make it practically impossible. Or our situation may be even worse: perhaps generations of
structural deflection-of elites as well as of the general public---from considering the Constitution in a realistic manner has made it
impossible for us to do so now. Decades of cultural lowering of the criteria of democracy may have made it impossible for us to
recapture its fuller definition and potential. If there is a route out of our crisis, it lies in deliberately reversing Hamilton's strategy.
That is, we must seek to re-engage the people in their government, and particularly in ways that enable them to have direct impact
on the substance of important public policies.
Last printed 3/8/2016 10:57:00 AM
2
533575393
Dartmouth 2K9
3
Obesity Add-on (1/3)
Fast food restaurants are targeting and exploiting poor minorities for profit leading to an increase in
obesity and other health problems for the urban poor
Ashley B. Antler – J.D. Candidate, Benjamin N. Cardozo School of Law, 2009; B.A., Brown University, 2002; Winter 2009; “The
Role of Litigation in combating obesity among poor urban minority youth: a critical analysis of Pelman v. McDonald’s Corp.”
Cardozo Journal of Law & Gender, Yeshiva University; Lexis,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7014965568&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7014965571&cisb=22_T7014965570&treeMax=true&treeWidth=0&csi=15
5852&docNo=1
In addition to neighborhood layout, the built environment also includes the multiple facets of the "nutrition environment:" nutrition
sources in homes, schools, [*282] and the community that influence food consumption. n39 Research on nutrition environments
outside the school and home falls into two categories: "community nutrition environments, which include the number, type, and
location of food outlets," and "consumer nutrition environments, which cover the availability and cost of, as well as information about,
healthful and less healthful foods inside those outlets." n40 An awareness of the multiple influences that shape the daily
lives of low-income minority youth, especially in regards to food choices, is critical to understanding causes of
the childhood obesity epidemic in this population. n41 The community and consumer nutrition environments may, in part,
explain the impact of obesity on low-income urban minority youth. n42 Poverty prevents many Americans from having
access to healthy foods. n43 In particular, "food insecurity - [the] limited or uncertain availability of
nutritionally adequate and safe foods or limited or uncertain ability to acquire acceptable food in acceptable
ways," - disproportionately impacts urban low-income communities of color. n44 Such food insecurity is caused in part
by the dearth of well-stocked supermarkets and reliance on food programs that make an adequate diet difficult to attain. n45 Several
studies have concluded that low-income and minority neighborhoods have fewer supermarkets and healthy food
options, as well as lower quality produce available, compared to more affluent and white neighborhoods. n46
Access to supermarkets has been linked with healthier eating and increased consumption of fruits and vegetables by African-American
adults. n47 Therefore, the diets of many of the poorest citizens in this country are shaped less by their free will, and
more by the lack of food choices and retailers available to them. n48 Amidst a lack of healthy food alternatives,
there is an astonishingly high concentration of fast food restaurants in poor urban neighborhoods. n49 Fast food
franchisors have become aware of the profits to be made by locating outlets in [*283] urban communities; as a result, there is a
growing concern over the high concentration of fast food franchises in cities, n50 and in particular, low-income
minority communities. For example, according to "[McDonald's] store location directory, there are approximately
70 of [McDonald's] stores within a five mile radius in the Bronx, New York, which is an average of 14
McDonald's stores per square mile in Bronx County, New York alone." n51 Consequently, the urban poor often
rely on fast food restaurants as a major source for food. n52 Low-income children are likely to eat in fast food restaurants,
particularly McDonald's, at least once a week or more. n53 Fast food companies target urban, low-income, and black
communities. Studies show that black and low-income neighborhoods are more likely to contain higher numbers of fast food
restaurants than white communities. n54 The percentage of black residents was found to be an even more powerful predictor of the
concentration of fast food restaurants in a given community than income. n55 Such targeting of urban, low-income, and black
communities is troubling because it may be causing people in these neighborhoods to eat more unhealthy food.
Researchers hypothesize that more convenient access to fast food may result in higher consumption of these products, and hence
higher obesity rates. n56 Higher consumption of unhealthy foods in low-income minority communities may be fueled
by the combination of several factors: limited food choices within the neighborhoods and limited transportation
to other neighborhoods, as well as financial constraints, which drive people to seek out the highest number of
calories for the smallest price tag. n57 [*284] It is also worth noting that for certain minority populations, fast food
restaurants have a distinct cultural significance, and serve as "destinations, [or] desirable social milieus." n58 For example, one scholar
of race and class oppression and the law has explained that "dining at a fast food restaurant has a different significance for AfricanAmericans than for other racial/ethnic groups and fulfills a different set of consumer tastes or preferences." n59 She explains that while
African-Americans are less likely to eat out in casual or family-style restaurants than other ethnic groups, African-Americans,
Last printed 3/8/2016 10:57:00 AM
3
533575393
Dartmouth 2K9
4
particularly those with children, are just as likely to eat at fast food restaurants as other groups. n60 Finally, fast food restaurants
contain menu items like fried fish and chicken, which are "staples of the soul food diet many blacks prefer." n61 Through
advertising campaigns, corporate giveaways, and even the setup of their restaurants, food corporations
strategically and effectively target minority communities. n62 For example, McDonald's supposedly "reconfigured the
seating layout of some of its restaurants in areas heavily populated by Hispanics to provide larger group areas where Hispanic families
can sit together, [in recognition of] the importance of extended communities in many Hispanic communities." n63 Beverage companies,
such as Coca-Cola and PepsiCo, also utilize similar "guerilla-marketing tactics" to solicit African-American and Hispanic customers,
in an effort to drive product sales and distribution in urban neighborhoods. n64
Last printed 3/8/2016 10:57:00 AM
4
533575393
Dartmouth 2K9
5
Class Action Key to Solve Obesity (2/3)
Social policy tort litigation is the most effective means of seeking social change
Ashley B. Antler – J.D. Candidate, Benjamin N. Cardozo School of Law, 2009; B.A., Brown University, 2002; Winter 2009; “The
Role of Litigation in combating obesity among poor urban minority youth: a critical analysis of Pelman v. McDonald’s Corp.”
Cardozo Journal of Law & Gender, Yeshiva University; Lexis,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7014965568&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7014965571&cisb=22_T7014965570&treeMax=true&treeWidth=0&csi=15
5852&docNo=1
There is no single definition of fast food obesity lawsuits; rather, many different legal claims are being classified under the label of
obesity litigation. n103 Broadly speaking, obesity lawsuits "claim that companies failed to warn consumers of the harmful contents of
their food; that food advertising is misleading or deceptive; that food is addictive ... ; or that defendants' food contributed to
consumers' obesity." n104 "Tobacco-Style lawsuits" are a distinct subset of obesity lawsuits, of which Pelman v. McDonald's Corp. is a
prime example. n105 "Tobacco-Style Suits" are defined as "claims of personal injury based on eating fattening food or claims of
consumer fraud based on an alleged lack of sufficient disclosure of the nutritional impact of junk food." n106 Scholars posit that
fast food litigators have been inspired by the success of earlier tobacco lawsuits, which resulted in tobacco
companies' liability for large sums of money, reimbursable to Medicaid. n107 Traditionally, setting public
policy through litigation has most prominently been through class-action lawsuits, often mass torts. n108 However,
tobacco-style [*290] obesity litigation may also be characterized as what one legal scholar has dubbed "social policy tort" litigation,
n109
defined as follows: In addition to seeking monetary compensation for individuals and public entities, [social policy tort] litigation
seeks the kind of industry-wide changes in corporate products and practices that advocates have pursued, without much success, in
state and federal legislatures ... . These lawsuits have a political dimension that is not generally present in other damage class actions.
Social policy torts have successfully addressed public health issues that have been stymied in Congress. n110
Accordingly, some scholars assert that courts have become "the most active venue for social change in health
politics." n111 This is explained, in part, by the lack of political will, or political stalemate, which paralyzes
elected legislative and executive officials from acting. n112 Furthermore, the judiciary is well-suited to address
regulation of private behavior that has public consequences, such as smoking, food consumption, and gun
control. n113 The appropriateness of judicial policy making, however, is a very controversial issue among public health and legal
scholars alike.
Last printed 3/8/2016 10:57:00 AM
5
533575393
Dartmouth 2K9
6
Obesity Impacts (3/3)
Obesity causes economic collapse – healthcare costs
Adams, Natural News Editor, 2004
(Mike Adams, “the Health Ranger” for Natural news.com, July 26, 2004, http://www.naturalnews.com/001516.html)
Obesity is more than just a personal health problem. Certainly, it has dire consequences to an individual in terms
of lost productivity, lower quality of life, encouraging the onset of secondary disease like diabetes and heart disease (and
outrageous medical bills). But the costs of obesity go far beyond individual costs -- they extend to the
nation as a whole. Why? Because many of the health care procedures performed in the United States
are paid for by taxpayer dollars. Even when such medical costs are covered under private insurance, that insurance is
paid for by other members of the public, making it a burden that must be carried by the general public, and not just the
individual who is incurring these costs. Furthermore, obesity reduces the lifespan (and especially the working life) of
individuals, thereby robbing society of the productivity those people would otherwise normally
contribute. In plain language, a person who is healthy and who is mentally and physically functioning at an optimum
level of health can contribute more to society in terms of ideas, productivity, and creativity than a person who is confined to
a hospital bed because they have undergone gastric bypass surgery or some other procedure that was ordered as a result of
their obesity. The long-term trend in all this is somewhat alarming: Both states and the federal
government stand to be bankrupted by health care costs associated with obesity and the chronic
diseases caused by obesity. This is becoming more obvious now that Medicare has officially
announced that treatments for obesity will be paid for with taxpayer dollars. It threatens to drain public
funds in the never-ending treatment of obese citizens.
Obesity kills 300,000 a year
Besharov, American Enterprises Institute, 2003
(Douglas Besharov, Testimony before Committee on Agriculture, April 3, 2003,
http://www.welfareacademy.org/pubs/foodassist/testimony-040303.pdf)
Being overweight is not simply a matter of aesthetics. The growing
girth of Americans is a major health
catastrophe. Overweight people are three times more likely to have coronary artery disease,5 two to six
times more likely to develop high blood pressure,6 more than three times as likely to develop type 2 diabetes,7 and
twice as likely to develop gallstones than normal weight people.8 Obesity, of course, is more serious, causing
an estimated 50 to 100 percent increase in premature deaths (estimated to be 300,000 deaths per
year).9
Last printed 3/8/2016 10:57:00 AM
6
533575393
Dartmouth 2K9
7
Obesity Litigation Spills Over
Obesity/fast food litigation shapes public health policy
Ashley B. Antler – J.D. Candidate, Benjamin N. Cardozo School of Law, 2009; B.A., Brown University, 2002; Winter 2009; “The
Role of Litigation in combating obesity among poor urban minority youth: a critical analysis of Pelman v. McDonald’s Corp.”
Cardozo Journal of Law & Gender, Yeshiva University; Lexis,
http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T7014965568&format=GNBFI&s
ort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T7014965571&cisb=22_T7014965570&treeMax=true&treeWidth=0&csi=15
5852&docNo=1
Litigation can be a useful vehicle to fight the obesity epidemic and shape public health policy. This section outlines
several benefits of obesity litigation. In particular, litigation can be a useful vehicle to reframe the obesity issue. It can
also act as a catalyst for industry change, heightened social awareness, and cultural change. Furthermore, the
judiciary may present unique advantages over the legislature for setting obesity policy.
Perhaps one of litigation's greatest contributions to a larger public health strategy is its ability to reframe the
obesity issue. n114 Proponents of using litigation to combat obesity argue that such litigation may be a helpful tool for framing the
obesity issue as a public health issue. As discussed in Part I.B., supra, there are two ways to frame the issue of obesity: as an
environmental issue and as one of individual choice. n115 The appropriate public policy response to the obesity epidemic is the direct
result of how the problem is framed; redefining the problem as either one of individual responsibility or as one of an
unhealthy food environment "redefines the politics" surrounding the solution. n116
[*291] Public health advocates are trying to reframe the issue of obesity, and have emphasized that one of the first steps in combating
the obesity epidemic is framing the issue as an environmental issue, rather than one of personal responsibility. n117 They emphasize
that obesity can only be combated through changing the environment to support healthy behavior. n118 In contrast, the food industry
and current legislatures place attention solely on the individual's caloric consumption and ability to change. n119
Lawsuits can be an effective vehicle to reframe the issue of obesity as it affects low-income urban minority
youth. Litigation can also be a valuable platform to publicize the effects of the built environment on individuals.
Public health practitioners can use litigation as an opportunity to frame the obesity epidemic as an environmental problem, and in so
doing, can challenge industry attempts to frame obesity as a failure of personal responsibility. n120 If the obesity epidemic is framed in
such a way so as to reveal that people are being manipulated or misled, then the politics of the policy response changes and focus is
shifted from obese individuals to the environmental forces influencing their food choices. n121 In fact, this is what happened, in
the aftermath of successful tobacco litigation, when the public became convinced that the tobacco industry had
made misleading claims: the "politics" around the issue changed. n122 When obesity among urban minority
youth is viewed as the result of the complex and unique interplay of several environmental forces discussed
earlier in this Note, fast food lawsuits may pose an important opportunity for social change.
Last printed 3/8/2016 10:57:00 AM
7
533575393
Dartmouth 2K9
8
1AC – Structural Inequality (1/3)
Contention 5: Structural Inequality
Current welfare policy fails due to lack of enforcement despite proven legal means of challenging abusive
practices because of restrictions on LSC aid.
Randal Jeffrey, Asst. Director New York Legal Assistance Group, Fall 200 3 (“Article: Facilitating Welfare Rights Class Action
Litigation: Putting Damages and Attorney’s Fees to Work.” Brooklyn Law Review. 69 Brooklyn L. Rev. 281 Lexis //ZE)
Throughout the United States, welfare administrators violate the law. As discussed below, numerous reported cases well document
these violations. 19 Despite being known, these violations have persisted for decades, 20 even though the laws governing welfare
programs generally clearly define how such programs must be administered. Moreover, the violations continue despite the availability
of a simple litigation model, discussed below, to challenge them. Before detailing the violations and how they can be remedied, this
Part first provides a brief introduction to the three welfare programs that this Article discusses: public assistance, food stamps, and
Medicaid. A. The Three Welfare Programs Even though public assistance, food stamps, and Medicaid are largely federally funded,
state and local agencies [*287] administer all three programs. Further, welfare departments often administer all three programs
through the same local welfare offices. Since each program serves different purposes through varying structures, each merits a
separate discussion. The Social Security Act of 1935 21 established the Aid to Dependent Children (ADC) program as the first major
federal program for cash assistance to households with children and little or no income or resources. 22 Congress renamed the
program Aid to Families with Dependent Children (AFDC) in 1962, 23 and then Temporary Assistance for Needy Families (TANF) in
1996. 24 The 1996 TANF legislation block-granted the program, meaning that the federal government now provides each state with a
specific amount of funds each year, with the states responsible for the remainder of the program funding. 25 Within a minimal federal
framework, states regulate and administer TANF-funded programs. In June 2002, just over five million people received
federallyfunded TANF benefits. 26 [*288] In addition to TANF-funded programs, many state and local governments run general
assistance programs. These programs serve households with little or no income or resources that are ineligible for TANF funded
benefits, primarily because the households lack children. 27 General assistance programs are completely locally funded, regulated, and
administered. In New York City, for example, over 200,000 people received general assistance in June 2003. 28 Congress created the
food stamp program in 1964 29 primarily to reduce hunger and malnutrition by providing food to impoverished households. 30 The
federal government regulates and funds the program, but leaves the responsibility and part of the cost of administration to the states.
31 While Congress has expanded the program since 1964, 32 it remains [*289] federally regulated. In August 2002, almost twenty
million people received food stamps. 33 Congress established the Medicaid program in 1965 to allow states to provide medical care
to those with little or no income or resources. 34 The Medicaid program is state funded with federal matching grants, federally
regulated, and state administered. As of the federal fiscal year 2000, Medicaid covered over forty-four million people. 35 Importantly,
for any discussion of welfare rights litigation, all three welfare programs - public assistance, food stamps, and Medicaid - create rights
in the benefits that they provide. 36 Once the benefits are established by law, those meeting the criteria for eligibility cannot be denied
benefits without due process of law. 37 The Supreme Court first endorsed this approach to welfare benefits in the landmark case of
Goldberg v. Kelly, where the Court, noting that public assistance benefits are an entitlement, held that due process protections apply.
38 While the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) 39 raises the question of whether
some or all state-administered TANF programs continue to create property rights, 40 no court [*290] has yet held that eligible TANF
applicants and recipients have no property interest in TANF benefits. 41 This property aspect, which essentially constitutionalizes
welfare programs, has important implications discussed later on. 42 The Goldberg decision remains the Supreme Court's most
powerful commentary on the importance of welfare benefits. In Goldberg, the Court recognized the value of welfare benefits both for
the individuals who receive them and society at large. 43 While both before and after the Goldberg decision the Court has held that
welfare benefits do not rise to the level of a fundamental right, 44 the view that such benefits are critical to those eligible for them
remains ensconced in contemporary jurisprudence. 45
B. Welfare Administrators' Failures to Comply with the Law Reported
cases document egregious cases of welfare administrators' noncompliance with applicable law. In actions challenging delays in
processing applications for public assistance, food stamps, and Medicaid, defendants failed to [*291] comply with the law up to
ninety percent of the time. 46 Defendants have failed to properly process recertifications up to one-third of the time. 47 In some cases,
the defendants have failed to timely conduct and implement fair hearing decisions over half of the time. 48 Welfare reform increased
the risks of noncompliance with the law by pressuring welfare administrators to reduce the welfare rolls, 49 sometimes with little
regard to what happens to clients after leaving welfare. 50 The story of welfare [*292] reform in New York City clearly demonstrates
this threat to welfare rights, as in some cases up to ninety percent of welfare applicants were denied benefits, prompting concern that
benefits were denied as a matter of course. 51 All across the country, pressures on state and local budgets continue to threaten access
to welfare programs. At the same time, the law is not merely aspirational. For example, even one instance of discontinuing food
Last printed 3/8/2016 10:57:00 AM
8
533575393
Dartmouth 2K9
9
1AC – Structural Inequality (2/3)
<<CONTINUED – NO TEXT DELETED>>>
stamps without notice violates the law. 52 While some courts have held administrators to only a "substantial compliance" standard, 53
the prevalent view is that welfare administrators must comply with the law in all instances. 54 To sustain a class action, [*293]
however, the Federal Rules of Civil Procedure require that the violations be more than just isolated. 55 Administrators fall short in
ensuring that welfare programs comply with the law for several complicated reasons. Factors include low staff pay and understaffing,
56 administrators' failure to invest in management systems, the lack of political power of the poor to demand reform, 57 and the
dysfunction inherent within government bureaucracies. 58 But to those who depend on welfare, the reasons for administrative failure
are irrelevant. What matters is that the failure is harmful and violates the law. C. A "Simple" Welfare Rights Litigation Model In
theory, when welfare administrators systemically violate the law, challenging the failure in court should be straightforward. In broad
terms, an attorney can file a class action lawsuit against the administrative agency, determine through discovery the extent of the
defendant's noncompliance with the applicable law, and prevail at trial or through settlement if the noncompliance is sufficiently
widespread. Federal food stamp law can illustrate this "simple" model. 59 The statute and regulations require welfare administrators
to process food stamp applications within thirty [*294] days. 60 Food stamp administrators, however, often fail to process
applications within the time frame. 61 Under a simple litigation model, when a welfare rights attorney learns that a program is
systemically failing to timely process food stamp applications, 62 the attorney can file a class action lawsuit challenging the failure.
As part of discovery, the attorney can force the defendant to produce any statistics it maintains concerning the alleged violation. 63 In
the absence of relevant, reliable statistics obtainable through discovery, the attorney can conduct a statistically sound survey to
determine the level of the defendant's compliance. 64 If the produced statistics or the plaintiffs' survey documents a sufficient level of
violations, 65 then the court should certify the class and rule in the plaintiffs' favor. Regardless of what specific relief the court
ultimately grants to the plaintiffs, their attorney can collect fees pursuant to 42 U.S.C. $ S 1988 since the clients are a prevailing party.
These fees will reimburse the attorney's organization for the attorney's time and the suit's costs, and might even include surplus fees
when the attorney works for a nonprofit. 66 [*295] Moreover, even with the deregulation of the TANF program 67 and the Supreme
Court's curtailment of the rights enforceable under 42 U.S.C. $ S 1983, 68 this litigation model remains available to remedy violations
of the law for all welfare programs. These TANF and Supreme Court restrictions only affect the enforcement of statutory and
regulatory rights, 69 not the due process interests so frequently at issue in the administration of the public assistance, food stamps, and
Medicaid programs. 70 To protect those interests, the due process clause requires that the government administer its welfare programs
fairly under the applicable federal and state law. 71 Because it exemplifies unfair and arbitrary decision making, any systemic failure
to comply with the relevant law violates due process. 72 Yet despite the [*296] existence of an enforceable right and a potential
litigation vehicle, violations persist. D. Too Few Lawyers: Inadequate Funding for Nonprofits One explanation for the relative dearth
of welfare rights litigation is that those organizations that pursue it are severely underfunded. To meet their budgets and pay their staff,
nonprofits that engage in welfare rights litigation must continually cobble together funding from federal, state, and local governments,
private law firms, foundations, individuals, and other sources. 73 Individual welfare rights attorneys can supplement this institutional
funding with grants from sources such as fellowships 74 and Loan Repayment Assistance Programs (LRAPs). 75 All of these
resources combined, however, cannot meet the demand for free legal services. 76 [*297] In addition, Congress prohibited any
organization funded by the Legal Services Corporation (LSC) 77 from participating in class actions 78 as part of the comprehensive
and punitive restrictions imposed on LSC-funded organizations in 1996. 79 A substantial number of poverty lawyers work for
organizations funded through the LSC. 80 Thus, this restriction severely limited the pool of nonprofit attorneys who can pursue
welfare rights class action litigation
Last printed 3/8/2016 10:57:00 AM
9
533575393
Dartmouth 2K9
10
1AC – Structural Inequality (3/3)
Lack of access to class action litigation perpetuates cycles of structural inequality
Joshua D. Blank (Associate at Harvard Law) and Eric A. Zacks (Associate at the University of Michigan) 2005: Dismissing the
Class: A Practical Approach to the Class Action Restriction on the Legal Services Corporation. Penn State Law Review. Lexis
In the past, the class action device has been used effectively to enforce the rights and claims of the poor. n46 In the context of the
disabled [*11] poor, the ability of LSC-funded legal services providers to litigate class actions is especially important because the
disabled are often unable to assert their legal rights individually. As one commentator asserted, "when the plaintiff is poor,
marginalized, legally incompetent, ignorant of legal rights, or unable to assert rights for fear of sanctions or otherwise, and these
disabilities are shared by others similarly situated, the class action may be the only effective means to obtain judicial relief." n47 Poor
children have also benefited from class action lawsuits filed on their collective behalf. For example, Gordon Bonnyman, Managing
Attorney at the Tennessee Justice Center, noted how a class action filed on behalf of children who were also Medicaid recipients
forced the reform of the state's administration of medical services to the poor. n48 A similar class action forced the Tennessee welfare
program to institute quality control devices that diminished the number of poor families that lost their state welfare benefits by fifty
percent. n49 Mr. Bonnyman concluded that "it was the combination of class action litigation, sophisticated legislative and
administrative advocacy, and close collaboration with community groups, that made possible these important gains for [his] clients."
This structural inequality is the worst form of violence
Gilligan, Former Director of Psychiatry at Massachusetts State Prison, 1996,
(James Psychiatrist, Former Director of Psychiatry at Massachusetts State Prison, worked in the criminal justice
system for many years. M.D Professor of Psychiatry at Harvard Medical School)
The deadliest form of violence is poverty. Any approach to a theory of violence needs to begin with a look at
the structural violence. The lethal effects of structural violence operate continuously whereas wars, and other
forms of behavior violence occur one at a time.The 14 to 19 million deaths a year caused by structural violence
compare with about 100,000 deaths per year from armed conflict.and even a hypothetical nuclear exchange war
cannot begin to compare with structural violence, which continues year after year.Every fifteen years as many
people die because of relative poverty as would be killed by the Nazi genocide of the Jews over a six-year
period.This is, the equivalent of an ongoing, unending, and accelerating, thermonuclear war, or genocide,
perpetrated on the weak and poor every year of every decade, throughout the world. Structural violence is also
the main cause of behavioral violence on a socially and epidemiologicaly significant scale.
Last printed 3/8/2016 10:57:00 AM
10