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 FinemanI. The Fallacy and Foibles of Vulnerability as Particular II. Vulnerability Theory A. Reasoning From the Body B. Embedded—The Necessity of Social (and Legal) ArrangementsIII. Theoretical Implications of “Reasoning From the Body” IV. Conclusion PART ILegal Structures: The Constitution and the Mechanisms of Justice 1 Restructuring the Constitution for Human Resilience Martha T. McCluskeyIntroduction 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 Pilliar1. 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 IIRole of Social Movements in Vulnerability Theory 3 Toward a Responsive Landscape: The Role of Social Movements in Vulnerability Theory Kathryn AbramsIntroduction 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 Supportand Strengthen Individual and Collective Interests of Labor Risa L. LieberwitzIntroduction 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 IIIOrganizing the Economic Infrastructure 5 The Corporation, Vulnerability, and Resilience Lua Kamál YuilleIntroduction 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 LawHila 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 IVThe Public Nature of “Private” Property 7 Housing Trusts and Resilient Cities: Hierarchy, Resources, and Resilience Marc L. RoarkVulnerability 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 HuI. 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. ConclusionPART VThe Ultimate “Private” Space—The Construction of the Family 9 The Elder Catch: Engineering the Future of CaregivingJessica Dixon WeaverI. 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 CahnPart I: The Pandemic Part II: Secure Versus Precarious Family Regimes Part III: Vulnerability Theory PART VIDimensions of Public and Private in Health Care 11 A Vulnerability Approach to the “Right to Health Care”: Addressing Epistemic Vulnerability Matthew B. LawrenceIntroduction 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. SatzIntroduction 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 VIIVulnerability and Sovereignty 13 Using Vulnerability Theory to Reconceive the Relationships Between Native Nations, the United States, and State Governments Nazune Menka and Laura SpitzIntroduction 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

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