The U.S. Bureau of Labor Statistics and workers' compensation insurers reported dramatic drops in rates of occupational injuries and illnesses during the 1990s. The authors argue that far-reaching changes in the 1980s and 1990s, including the rise of precarious employment, falling wages and opportunities, and the creation of a super-vulnerable population of immigrant workers, probably helped create this apparent trend by preventing employees from reporting some injuries and illnesses. Changes in the health care system, including loss of access to health care for growing numbers of workers and increased obstacles to the use of workers' compensation, compounded these effects by preventing the diagnosis and documentation of some occupational injuries and illnesses. Researchers should examine these forces more closely to better understand trends in occupational health.

Wounding the Messenger: The New Economy Makes Occupational Health Indicators Too Good to Be True:

Block grants were first enacted during the Johnson administration, in 1966. Three subsequent surges in the use of block grants occurred during the Nixon, Reagan, and Clinton administrations. Experience with block grants offers several lessons. The real value of block grant funding tends to diminish over time. Once in operation, Congress gradually erodes the flexibility of block grants. Block grant implementation is smoothest when states can draw upon existing administrative capacities. This study did not find consistent evidence that states use block grants to redirect benefits away from those with the greatest need.

block grants: historical overview and lessons learned

Despite persistent calls for more empirical legal scholarship, only recently have scholars provided evidence that empirical legal scholarship has indeed entered the mainstream of the legal academy. Defining empirical scholarship as the systematic organization of a series of observations with the method of data collection and analysis made available to the audience, we analyzed the content of 60 law review volumes published in the years 1998 and 2008. Our content analysis revealed that by 2008 nearly half of law review articles included some empirical content. Production of original research is less common. The highest-ranked law reviews published more articles and included more complex research designs. Analyzing the benefits and costs of publishing in law reviews, we predict that law reviews will see more original empirical scholarship in the future, despite the increased availability of peer-reviewed publication outlets.

Empirical Legal Scholarship in Law Reviews

Over the last decade, Australian social security for people of workforce age has incorporated, in an unduly purist form, neoliberal concepts of contested markets for labourmarket services, individualisation of responsibility/risk for remaining on welfare, a 'job first' approach to exiting from welfare, and the combined pressure of deregulation of the labourmarket and welfare sanctions for breach of 'mutual obligations' to pressure people to return to work. This paper argues that such one-dimensional approaches have added to the economic disincentives for workforce participation, bear harshly on vulnerable populations such as sole parents and the disabled, have a poor record of generating lasting labourforce participation, and are ethically problematic on the basis of a return to 'blaming the victim'. Despite shortcomings of the 'capacity' literature, it is argued that the state owes a moral obligation to develop the human capital of welfare clients, in ways respectful both of their dignity and their rights, consistent with a social citizenship model.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1080088_code609399.pdf?abstractid=1080088&mirid=1

Reforming Social Security: Improving Incentives and Capabilities

Research interrogating the development, implementation and enforcement of reactionary and conservative social and educational movements and policies has enabled us to show the contradictions and unequal effects and the disproportionate and disparate impacts on the lives of minority students (Apple, 2009). This research study examined how the Board of Regents, Georgia’s higher education governing body, interprets and enforces the “lawful presence” requirement set forth in USG Policy 4.1.6. The study gave primary consideration to Deferred Action for Childhood Arrivals (DACA) recipients, who the data show have been systematically excluded from access to certain state colleges and universities without legal cause or justification. The study also examined the perceived impacts of Policy 4.1.6 on DACA students seeking admission to the state’s most selective colleges and universities. Data collected from participant interviews of DACA students, along with data gathered through participant observation and documents analysis, were used to create a greater understanding of the impacts of Policy 4.1.6 on both DACA and undocumented students. The study is significant because it traverses matters of current legal import, while also contributing to the growing body of literature concerning access to postsecondary education for undocumented students. Using the methodological approach of critical theory, the study incorporated elements of critical race theory (CRT), critical Latino/a studies (LatCrit), and critical policy analysis in the exploration of the various narratives and counternarratives created by the enforcement of Policy 4.1.6. Using Interpretive Phenomenological Analysis (IPA) of the interview data, a critical assessment of the perceived impacts of Georgia immigration and education policy development and implementation is also provided. Finally, this study revealed the ways in which ‘race-neutral’ educational policies result in discriminatory practices against minorities, specifically undocumented students, the majority of who are Latino/a. The knowledge gained from this research gives policymakers on either side of this issue with analysis that can more effectively guide them in the interpretation of federal mandates and conflicting state laws that result in the subordination of significant segments of student populations. INDEX WORDS: undocumented students, postsecondary education, critical policy analysis, interpretive phenomenological analysis THEY, TOO, SING AMERICA: A CRITICAL ANALYSIS OF USG POLICY 4.1.6 AND ITS PERCEIVED IMPACTS ON DACA STUDENTS IN THE STATE OF GEORGIA by Ryan Z. Maltese

They, too, sing america: a critical analysis of usg policy 4.1.6 and its perceived impacts on daca students in the state of georgia

In 1996, the Republican Congress and Democratic President enacted the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), ushering in a new era of public benefits. This 1996 act’s fundamental change to the administration and substance of public benefits called into question the applicability of a substantial body of procedural due process doctrine. As a result, unanswered questions remain regarding the applicability of established due process doctrine in the welfare reform context.This Article analyzes whether public law entitlements exist in the context of PRWORA’s first order devolution from the federal to state governments as well as some states’ second order devolution from state to county or local governments. This article suggests that the statutory “no entitlement” declaration does not determine whether recipients retain constitutional procedural due process protections. Instead, utilizing a public law analysis, the article posits that PRWORA creates legitimate expectations to the receipt of benefits through statutory language and the concept and nature of the contractual agreements entered into between recipients and governments. Ultimately, these agreements form the basis of legitimate expectations in recipients and, therefore, a property interest.Using the example of one state’s devolution from the state to the county or local government, the articles explores the dangers that accompany unchecked agency discretion and highlights the continued, and arguably heightened, importance of procedural due process protections. The Article concludes that whether one focuses on the meanings of property interests, entitlements and/or legitimate expectations, or applies a fundamental requirement that government adhere to the rule of law, states remain accountable to welfare recipients when states offer benefits with conditions that impact the lives of their most impoverished residents.

Welfare Entitlements in the Era of Devolution

This article explores whether there exists a concept of non-arbitrariness that imposes limitations on the administration of welfare benefits without rules, regulations, policies or procedures. To address this question, the article examines the concept of non-arbitrariness within various jurisprudential doctrines and the potential applicability of the concept to limit arbitrary governmental action in the welfare context. In each of the areas where courts regulate arbitrary governmental action, underlying judicial concerns give rise to jurisprudential principles. Four principles stand out. First, at a minimum, there must be a rational relationship between the government’s ends and the means it chooses to reach those ends. Second, clear standards must exist so that individuals are able to conform their conduct according to a predictable system. Third, the rules and standards that do exist must be equally and fairly applied. And finally, the government must be accountable, and courts must be able to review governmental action to determine its legality. The article’s primary goal is to demonstrate that the concept of non-arbitrariness is foundational to American law and has some relevance for a welfare program that is administered without rules or standards. Specifically, the concept of non-arbitrariness and the requirement of rules and standards that are fairly and equitably applied create a necessary foundation from which other rights may flow. Courts may not move toward a broad prohibition against arbitrary action affecting welfare recipients any time soon, but they may be willing to regulate certain governmental action or inaction through concepts of non-arbitrariness. Ultimately, the article concludes that a welfare program being administered at the local level without any rules, regulations, policies or procedures is an instance where courts should be willing to regulate governmental arbitrariness. The appropriate remedy would be one that traditional constitutional procedural due process and administrative law remedies have not clearly provided - namely, a requirement that governments have rational rules and standards that are applied fairly and equitably.

Principles of Non-Arbitrariness: Lawlessness in the Administration of Welfare

The presence of an estimated 11.5 million undocumented immigrants in the United States, of which an estimated 7.2 million are working, has become a flashpoint in the emerging national debate about immigration. Given these statistics, it is not surprising that many undocumented workers suffer injuries in the workplace that are typically legally cognizable. Even though undocumented workers are entitled to a number of legal remedies related to their employment, seeking legal relief often raises heightened concerns about the disclosure of their status. This article explores lawyers' increasingly complex ethical obligations with regard to a client's immigration status in the context of employment litigation. The complexity regarding the nature and scope of a lawyer's obligation is due, in large part, to two recent developments. The first is the United States Supreme Court's 2002 decision in Hoffman Plastic Compounds v. National Labor Relations Board, in which the Court addressed the scope of lawful relief due to an injured undocumented worker and ultimately left open the question of relevancy of immigration status in general civil litigation. The second factor creating this complexity relates to existing legislation that criminalizes various acts by undocumented immigrants as well as the ongoing legislative debates regarding immigration reform which have included proposals to criminalize the mere status of undocumented immigrants. This article addresses both of these developments in the context of lawyers' ethical obligations and analyzes several questions. First, in light of ethical prohibitions on lawyers assisting in conduct that is criminal or fraudulent, are there any ethical limitations upon a lawyer's ability to represent undocumented workers in employment litigation? Second, once representing an undocumented worker, how do lawyers balance their duty of confidentiality against disclosure obligations? And, finally, despite this article's conclusion that the ethical rules do not mandate disclosure of a client's immigration status, this article explores the strategy of disclosure and whether the decision to disclose belongs to the lawyer or the client. In light of the potentially catastrophic consequences of an improperly made disclosure, lawyers need to be mindful of the special ethical obligations that arise when representing undocumented workers in employment related civil litigation. The article proposes a framework and analysis to guide lawyers through these difficult ethical quandaries.

Ask Don't Tell: Ethical Issues Surrounding Undocumented Workers' Status in Employment Litigation

The presence of an estimated 115 million undocumented immigrants in the United States, of which an estimated 72 million are working, has become a flashpoint in the emerging national debate about immigration Given these statistics, it is not surprising that many undocumented workers suffer injuries in the workplace that are typically legally cognizable Even though undocumented workers are entitled to a number of legal remedies related to their employment, seeking legal relief often raises heightened concerns about the disclosure of their status This article explores lawyers' increasingly complex ethical obligations with regard to a client's immigration status in the context of employment litigation The complexity regarding the nature and scope of a lawyer's obligation is due, in large part, to two recent developments The first is the United States Supreme Court's 2002 decision in Hoffman Plastic Compounds v National Labor Relations Board, in which the Court addressed the scope of lawful relief due to an injured undocumented worker and ultimately left open the question of relevancy of immigration status in general civil litigation The second factor creating this complexity relates to existing legislation that criminalizes various acts by undocumented immigrants as well as the ongoing legislative debates regarding immigration reform which have included proposals to criminalize the mere status of undocumented immigrants This article addresses both of these developments in the context of lawyers' ethical obligations and analyzes several questions First, in light of ethical prohibitions on lawyers assisting in conduct that is criminal or fraudulent, are there any ethical limitations upon a lawyer's ability to represent undocumented workers in employment litigation? Second, once representing an undocumented worker, how do lawyers balance their duty of confidentiality against disclosure obligations? And, finally, despite this article's conclusion that the ethical rules do not mandate disclosure of a client's immigration status, this article explores the strategy of disclosure and whether the decision to disclose belongs to the lawyer or the client In light of the potentially catastrophic consequences of an improperly made disclosure, lawyers need to be mindful of the special ethical obligations that arise when representing undocumented workers in employment related civil litigation The article proposes a framework and analysis to guide lawyers through these difficult ethical quandaries

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1273190_code724771.pdf?abstractid=1273190&mirid=1&type=2

Ask, Don't Tell: Ethical Issues Surrounding Undocumented Workers' Status in Employment Litigation

The role of lawyers in social change movements is more critical than ever as communities mobilize around systemic racism, police killings, xenophobia, rising unemployment, and widening economic inequality. The immigrant rights movement is a critical part of these efforts to foment change. This Article leverages an in-depth case study – the rise and fall of the controversial immigration enforcement program known as Secure Communities - to explore how lawyers work as part of a community to challenge power and effectuate change. The dismantling of Secure Communities was widely credited to a relentless campaign to thwart the government’s then-expanding deportation strategy. The authors reviewed over 23,000 internal DHS documents, media accounts, court transcripts, and interviewed 30 administrative officials, congressional actors, organizers, clients, activists, and lawyers involved in the Secure Communities campaigns. This Article draws on extensive evidence to identify an innovative approach to movement lawyering that involved coordinated efforts of movement actors on the micro level (achieving immediate goals), the meso level (effecting broader policy change), and the macro level (organizing communities around narrative identities). The Article concludes that efforts at change were optimized when lawyers, organizers, and activists together built a nimble, adaptive, and modular strategy to enhance concerted power from the ground up. Within this new construct, lawyers can develop new ways of working with communities that synergistic-ally exploit the advantages of various social change strategies at any given time, producing strengthened relationships and lasting investments in organized resistance.

Christine N. Cimini

Papers

Welfare Entitlements in the Era of Devolution

Principles of Non-Arbitrariness: Lawlessness in the Administration of Welfare

Ask Don't Tell: Ethical Issues Surrounding Undocumented Workers' Status in Employment Litigation

Ask, Don't Tell: Ethical Issues Surrounding Undocumented Workers' Status in Employment Litigation

An Innovative Approach to Movement Lawyering: The Immigrant Rights Case Study