This essay contrasts the jurisprudence of welfare entitlement developed by social workers during and after the New Deal with the lawyers' welfare jurisprudence of the past two decades.
I find this contrast interesting for two reasons. First, it brings to light an episode in the intellectual history of the American welfare state that lawyers have ignored – the development of an understanding of welfare as a legal right by another profession long before Charles Reich's The New Property and the literature that followed it made such a notion current among lawyers. Second, the contrast between the social workers' and the lawyers' welfare jurisprudences raises questions about the legal and political significance of the idea of welfare rights.
I hope I can convince you that these concerns are still vital. The idea of welfare rights no longer inspires jurisprudential controversy or liberal reform. Some aspects of the New Property jurisprudence have been so assimilated into the legal culture that they are taken for granted. Other aspects appear so rooted in the Great Society idealism of the 1960s that they seem quaintly anachronistic. I think that both the success and the failure of the New Property stems from its tendency to ignore and even obscure some of the most important legal and political implications of the idea of welfare rights. One of the many virtues of the social workers' jurisprudence is to suggest that the idea of welfare rights is both more problematical and more provocative than contemporary legal discussion suggests.
William H. Simon,
The Invention and Reinvention of Welfare Rights,
Md. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/724