democratic experimentalism, antipoverty law
Democratic experimentalism, the procedural component of the “new governance” movement, has won widespread acceptance in calling for decentralization, deliberation, deregulation, and experimentation. Democratic experimentalists claim that this approach offers pragmatic solutions to social problems. Although the democratic experimentalist movement formally began only a decade ago, antipoverty law has reflected its major principles since the 1960s. This experiment has gone badly, weakening antipoverty programs. Key elements of this participatory approach to antipoverty law – decentralization, privatization, and the substitution of ad hoc problemsolving for individual rights – all contributed to the calamity that low-income people suffered during and after Hurricane Katrina. Those same features prevented the country from acting on the widely shared concern about poverty in Katrina’s wake. Indeed, almost all progress in antipoverty law has come from centralized, nonparticipatory, and non-experimentalist policymaking. Democratic experimentalism assumes consensus on the nature of problems and the propriety of government action, reliable metrics for measuring success, the luxury of time, the lack of situations requiring centralized policymaking, and deliberation that is costless in most respects. It also requires that one side risk political capital to establish an experimentalist system. These assumptions have not been fulfilled in antipoverty law. Little suggests that they will be met in other fields either. Further progress in antipoverty law must come from centralized policymaking based on substantive consensus, among many, though not all, liberals and conservatives. This consensus will follow many substantive components of the new governance, including reliance on market incentives. Democratic experimentalism should learn from debates about deliberative democratic theory that has wrestled with its key weaknesses.
Social Welfare Law
Digital Commons Citation
157 University of Pennsylvania Law Review 541 (2009).