UCLA Law Review Volume 59, Issue 3


Essays in Honor of Joel F. Handler

For more than five decades, Joel Handler’s remarkable influence, range, and productivity have made him one of the world’s leading scholars of social welfare policy and administration, government bureaucracy, law and social change, and sociolegal theory. The excellence of his research has been recognized through such honors as his election to the American Academy of Arts and Sciences and the Law and Society Association’s Harry J. Kalven, Jr. Prize.

Professor Handler has authored seventeen monographs. Among the best known are The “Deserving Poor”: A Study in Welfare Administration (with Ellen Jane Hollingsworth) (1971), Social Movements and the Legal System: A Theory of Law Reform and Social Change (1978), The Conditions of Discretion: Autonomy, Community, Bureaucracy (1986), The Moral Construction of Poverty: Welfare Reform in America (with Yeheskel Hasenfeld) (1991), and Social Citizenship and Workfare in the United States and Western Europe: The Paradox of Inclusion (2004).

Professor Handler also has been a leader in service to academic and wider communities. His provocative 1993 presidential address to the Law and Society Association, “Postmodernism, Protest, and the New Social Movements,” remains essential reading. At UCLA, Professor Handler helped organize what is now the School of Public Affairs and directed the law school’s LL.M. program. He has participated in numerous blue-ribbon commissions and received the ACLU Foundation of Southern California’s Distinguished Professors Award for Civil Liberties Education.

Before coming to UCLA in 1985, Professor Handler had spent more than twenty years at the University of Wisconsin, where he was the George A. Wiley and Vilas Research Professor of Law and an important figure in the Institute for Poverty Research.

On the occasion of Professor Handler’s retirement, UCLA School of Law on March 11, 2011, hosted Poverty and the Bureaucratic State: A Symposium in Honor of Joel Handler. Seventeen distinguished scholars, ranging from Professor Handler’s generation of law and society pioneers to those still early in their careers, gathered to comment on and discuss with the audience Professor Handler’s many contributions and the ongoing vitality of the research traditions he has influenced. Two of those presentations form the basis for the essays published in this issue.

The Pursuit of Legal Rights—and Beyond

Just over thirty years ago, in a seminal trilogy of books, Joel Handler and his collaborators made three foundational contributions to the study of public interest lawyers. The first was theoretical, defining public interest law as a positive externality producing legal activity; the second was organizational, conceptualizing public interest law as an industry with multiple sectors that provided legal services; and the third was practical, examining the conditions under which legal rights activities were likely to succeed or fail. Looking back, Handler’s work may be read to support two distinct, and seemingly oppositional, claims: first (optimistically), that public interest lawyers are essential to robust participatory democracy and progressive social change (and thus society should support the field’s expansion), and second (pessimistically), that those same lawyers are nonetheless (at best) doomed to fail and (at worst) destined to be co-opted by the very political system they seek to transform. I call this the Paradox of Public Interest Law. In this Essay, I seek to evaluate the Paradox in light of the dramatically different political, economic, and intellectual context within which the public interest law movement now operates. I trace the arc of the movement’s change, emphasizing the role of ideological, organizational, and tactical complexity in driving new understandings of the meaning and practice of public interest law: from a coherent definition to a set of competing theories; from a nonprofit-centered view of the industry to one that incorporates a greater role for private sector delivery; and from an emphasis on the pursuit of legal rights in court as the central social change tactic to a broader focus on multiple advocacy strategies coordinated across multiple political domains. Evaluating these changes, I suggest that Handler’s optimistic hope for more public interest lawyers has been realized, while some of his pessimism has also been validated—but not entirely for the reasons that he imagined. In the end, Handler’s legacy teaches that the pursuit of legal rights—despite the risks—is still worth the fight.

Poverty Unmodified?: Critical Reflections on the Deserving/Undeserving Distinction

According to a familiar and influential analysis, antipoverty programs are structured by distinctions between the deserving and undeserving poor. Through techniques like behavioral conditions on benefit eligibility, these moral distinctions divide the poor and interfere with providing assistance to all those in need. This analytical framework animates much critical scholarship on social welfare policy and guides most welfare rights litigation about benefit eligibility requirements.

This Essay challenges this “deservingness analytic” by questioning its separation of deservingness from need, its imagination of the poor as a preexisting population whose need can be conceptualized and determined apart from the moralistic concerns of deservingness. This supposed divide between deservingness and need is breached from both sides: Seemingly moralistic concerns with personal behavior often can be recast as assessments of economic need, and conventional techniques of measuring economic need inevitably implicate moralistic questions about personal behavior. Both phenomena become apparent once we unpack the conventional idea that the extent of “available” resources necessarily affects whether any needs are unmet.

Dismantling the barrier between deservingness and need facilitates new critical perspectives on both concepts. The implicit moral content of need assessments becomes visible and contestable, not for moralism alone but for moral error. I sketch such an argument with regard to the ubiquitous exclusion of childcare from the needs considered by means-tested benefits. Because behavioral conditions and need assessments are linked, new accounts of need also produce new accounts of conditions. For instance, broadening needs to incorporate childcare leads to broadening what should qualify as “work” under a work requirement, the quintessential behavioral eligibility condition.

The President’s Unconstitutional Treatymaking

The President of the United States frequently signs international agreements but postpones ratification pending Senate consent. Under international law, a state that signs a treaty subject to later ratification must avoid acts that would defeat the treaty’s object and purpose until the nation clearly communicates its intent not to join. As a result, the President in signing assumes interim treaty obligations before the treatymaking process is complete. Despite the pervasiveness of this practice, scholars have neglected the question of its constitutionality. As this Article demonstrates, the practice is unconstitutional. Neither the text, structure, nor history of the Constitution supports the practice. Nor can the practice be justified under the President’s authority to enter sole executive agreements or as a longstanding practice in which Congress has acquiesced. The result, ironically, is that the President often acts unconstitutionally when employing the treatymaking process outlined in Article II of the Constitution. Yet the President need not avoid the Article II process to cure this constitutional defect. The President avoids constitutional violation by consenting to international agreements through means other than signature subject to ratification.

Freedom of Contract in an Augmented Reality: The Case of Consumer Contracts

This Article argues that freedom of contract will take on different meaning in a world in which new technology makes information about places, goods, people, firms, and contract terms available to contracting parties anywhere, at any time. In particular, our increasingly “augmented reality” calls into question leading justifications for distrusting consumer contracts and strengthens traditional understandings of freedom of contract. This is largely a descriptive and predictive argument: This Article aims to introduce contract law to these technologies and consider their most likely effects. It certainly has normative implications, however. Given that the vast majority of consumer contracting occurs in physical space, the introduction of ubiquitous digital information into these transactions has profound consequences for contract law.

Balancing Judicial Misvaluation and Patent Hold-Up: Some Principles for Considering Injunctive Relief After eBay

It is increasingly common for patent infringers to sink substantial resources into a product’s development, manufacture, and marketing before a patentee alleges infringement. Infringers may sign contracts, hire employees, and purchase specialized facilities and equipment—all before realizing that their product might infringe someone else’s patent. If a patent holder successfully proves infringement, the court must remedy the infringement by awarding the patentee either forward-looking damages or an injunction. Often, neither presents a particularly palatable option.

To award the patentee damages, the court must assign a value to the patentee’s invention. Judicial valuation of technology is simultaneously expensive and prone to significant error. The patent system is designed to reward those who innovate in ways the market endorses; when courts, rather than markets, dictate the value of an invention, they distort the economic incentives the patent system relies on to promote innovation.

But if the court issues an injunction instead, the infringer may suffer catastrophic losses on its sunk investments if the injunction is actually enforced. Knowing this, the patentee could wield the injunction to threaten those investments and demand payment for their continued safety. This type of strategic behavior, known as “patent hold-up,” allows patentees to capture payments not tied to the merits of their invention. Handing patentees this windfall distorts their incentives and encourages other parties involved in innovation to behave in undesirable ways.

This Comment explores how judicial misvaluation and patent hold-up distort incentives in ways that cause harm to research and innovation. It then sketches guidelines for estimating the magnitude of these distortions in specific cases and urges courts to weigh these distortions when considering injunctive relief. When neither damages nor an injunction presents a palatable solution to infringement, a court that understands the adverse consequences of misvaluation and hold-up will be able to choose the lesser of two evils.

Learning in Lockdown: School Police, Race, and the Limits of Law

Nationally, K–12 schools are increasingly relying on police officers and criminalized security measures like metal detectors and random searches in an attempt to make schools safer. In New York City, officers patrolling prison-like schools have acutely harmful effects, leading the New York Civil Liberties Union (NYCLU) to file a class action lawsuit in 2010 alleging the systemic violations of students’ Fourth Amendment rights. The reality of the harm, though, is far deeper than the law is presently capable of recognizing. In New York City, the vast majority of students harmed by school police practices attend highly racially segregated schools, including the named plaintiffs in the NYCLU lawsuit, all of whom attend schools comprised of at least 98 percent students of color. In addition to the racial disparity in the numbers of children exposed to harmful school police practices, the nature of the harm is disproportionately severe and uniquely far-reaching for nonwhite students. In this Comment, I explore the many layers of this harm through the lenses of the school-to-prison pipeline, psychological effects, citizenship, and the economic system. I then examine the ways in which federal antidiscrimination law fails to recognize such harm as discrimination, foreclosing lawsuits like the NYCLU’s from discussing race and confining them to tell obscured and incomplete stories. Ultimately, the law’s blindness to the reality of the harm compels lawsuits that only scratch the surface while limiting the voices of their class members. Though such lawsuits are essential for immediate, if partial, relief, significant reform for students harmed by school police officers will only come when antidiscrimination law recognizes the full racial nature of the harm.