Law, Vulnerability, and the Responsive State

Martha Albertson Fineman is Robert W. Woodruff Professor of Law and the Founding Director of The Vulnerability and Human Condition Initiative at Emory University, Georgia, USA. Laura Spitz is Vice Provost for Global Engagement and Professor of Law at Seattle University, Washington, USA.

List of Contributors

Introduction: Understanding Vulnerability

Martha Albertson Fineman

I. The Fallacy and Foibles of Vulnerability as Particular

II. Vulnerability Theory

A. Reasoning From the Body

B. Embedded—The Necessity of Social (and Legal) Arrangements

III. Theoretical Implications of “Reasoning From the Body”

IV. Conclusion

PART I

Legal Structures: The Constitution and the Mechanisms of Justice

1 Restructuring the Constitution for Human Resilience

Martha T. McCluskey

Introduction

I. Structural Principles for Constitutional Power

II. Contemporary Right-Wing Constitutional Restructuring

III. Vulnerability Theory’s Constitutional Reframing

IV. Affirming the Administrative State for Human Resilience

V. Conclusion

2 Vulnerability Theory and Access to Justice: Elaborating Possibilities for Legal System Design

Andrew Pilliar

1. Background on Access to Justice

a. What Is “Access to Justice”?

b. How Common Are Access to Justice Problems?

2. Situating Vulnerability

a. Vulnerability Theory and Responsive Law

b. Vulnerability Theory and the Capability Approach

3. Realizing Person-Centred Access to Justice

4. Conclusion

PART II

Role of Social Movements in Vulnerability Theory

3 Toward a Responsive Landscape: The Role of Social Movements in Vulnerability Theory

Kathryn Abrams

Introduction

I. Learning From Social Movements: Cultivating Resilience in Arizona

II. Social Movements and Vulnerability Theory: Three Questions

A. Do Social Movements Help to Meet Human Vulnerability?

III. How Does the Work of Social Movements Relate to the Activity of the Responsive State?

A. Density and Effects of Regulatory Frameworks

IV. Directions for Vulnerability Theory

4 Law, Public Policy, and Social Movements to Support

and Strengthen Individual and Collective Interests of Labor

Risa L. Lieberwitz

Introduction

I. The Role of the State to Provide for the Public Welfare

A. The Vision of the Responsive State

B. The Reality of the Unresponsive State in the U.S.

II. The Role of the State in the Employment Relationship

A. The “Private Welfare” System in the U.S.

B. The Liberal Contradictions of the National Labor Relations Act

C. Legislative Reforms to Move Toward a Responsive State

D. Recent Legal and Social Developments that Resonate With the Reforms of the PRO Act

III. Conclusion

PART III

Organizing the Economic Infrastructure

5 The Corporation, Vulnerability, and Resilience

Lua Kamál Yuille

Introduction

I. Vulnerability, the Human Condition, and the Liberal Legal Subject

II. Understanding Resilience

III. The Corporation as a Site of Resilience

A. Conceiving of the Corporation

B. Corporate Resilience

IV. Toward a Responsive State Approach to the Corporation

6 Market Citizenship, Resilience Drainage, and the Role of Private Law

Hila Keren and Ronit Donyets-Kedar

Introduction

I. The Private-Public Divide and the Role of Private Law

II. Resisting Resilience Drainage via Contract Law

A. The Problem: Market Rejections and Humiliation

B. A Vulnerability-Based Response

III. Resisting Resilience Drainage via Corporate Law

A. The Problem of Market Evangelism

B. A Vulnerability-Based Response

IV. Conclusion

PART IV

The Public Nature of “Private” Property

7 Housing Trusts and Resilient Cities: Hierarchy, Resources, and Resilience

Marc L. Roark

Vulnerability and Affordable Housing Resilience

Affordable Housing as an Inherent Vulnerability

How Cities Sought Resilience in the Form of Housing Trust Funds

Scale, Resilience Gaps, and Responsibility

8 Vulnerability, Resilience, and the Fair Housing Act

Xiaoqian Hu

I. Some Limits of the FHA

A. Excessive Deference to Defense

B. Illegal Immorality Versus Legal Privilege

C. A Vulnerability Evaluation

II. Reinterpreting the FHA Through Vulnerability Theory

A. A Social-Situational View of Harm and Discrimination

B. A Reconceptualized State for Systemic Action

III. Conclusion

PART V

The Ultimate “Private” Space—The Construction of the Family

9 The Elder Catch: Engineering the Future of Caregiving

Jessica Dixon Weaver

I. Vulnerability Theory and Resistant Assets

A. The Taxonomy of Vulnerability Theory

B. Resistant Assets and the Non-Responsive State

II. The Family as a Resistant Asset

III. State and Market Response to the Elder Catch

10 Vulnerability Theory and the Conception of Time

June Carbone and Naomi Cahn

Part I: The Pandemic

Part II: Secure Versus Precarious Family Regimes

Part III: Vulnerability Theory

PART VI

Dimensions of Public and Private in Health Care

11 A Vulnerability Approach to the “Right to Health Care”: Addressing Epistemic Vulnerability

Matthew B. Lawrence

Introduction

A. The “Right to Health Care” and the Challenges of an Entitlement Approach

1. The Popular “Right to Health Care”

2. Operationalizing the “Right to Health Care”: The Role of Theory

3. Entitlement Approach and Its Limitations

B. Vulnerability Approach: From Entitlement to Obligation

1. Vulnerability Replaces Individual Entitlement With Collective (or State) Obligation

2. What Is the Content of the State’s Obligation?

3. A Collective, Procedural Right to Priority

C. Addressing Epistemic Vulnerability

1. Epistemic Vulnerability

2. Respond or Reject?

3. Separating Stepping Stones From Stumbling Blocks

12 Disability, Vulnerability, and Public Health Emergencies

Ani B. Satz

Introduction

I. Limits of Current Approaches

II. Reasoning From the Body

III. Disability, the Vulnerable Subject, and Health Law

IV. Disability and the Vulnerable Institution: Hospitals and Public Health Authorities

V. Disability and Resilience in Public Health Emergencies

VI. Conclusion

PART VII

Vulnerability and Sovereignty

13 Using Vulnerability Theory to Reconceive the Relationships Between Native Nations, the United States, and State Governments

Nazune Menka and Laura Spitz

Introduction

I. (Dependent) Sovereignty

a. Background: Sovereignty and Liberalism

b. Domestic Dependent Nations

II. Using Vulnerability Theory to Reconceptualize Sovereignty and the Doctrines of Plenary Power and Trust Responsibility

a. Assertion of Tribal Sovereignty Remains a Critical Component of Inherent Indigenous Power

b. Sovereignty Is Inter-Dependent

c. Indigenous Peoples Are Not a Vulnerable Population

d. Trust Responsibility Can and Should Be Detached From the Doctrine of Plenary Power

III. A Contemporary Example: The Indian Child Welfare Act

IV. Conclusion: Vulnerability Theory, Tribal Sovereignty and Federal Responsibility

Index