New Article: “Mobilization and Poverty Law: Searching for Participatory Democracy Amongst the Ashes of the War on Poverty”

New Article: Wendy A. Bach, Mobilization and Poverty Law: Searching for Participatory Democracy Amongst the Ashes of the War on Poverty, SSRN Mar. 2012.  Abstract below:

In 1964, at the height of the Civil Rights Movement, the federal government launched Community Action, a program that was to be designed and implemented with the maximum feasible participation of the poor. Today in governance theory, we are told once again that participation by affected communities in the mechanisms of governance have the ability to deepen democracy – to yield better policy and to engage new voices in the mechanisms of democracy. Enclosed for your review is Mobilization and Poverty Law: Searching for Participatory Democracy Amongst the Ashes of The War on Poverty, an article that turns to history to explore a question central to both governance theory and community lawyering: Do the participatory democracy mechanisms of new governance theory have the ability, or can they be wielded by advocates and poor communities, to render poverty more responsive to community needs? To answer this question, Mobilization and Poverty Law provides a detailed chronicle of the creation and implementation of Community Action and maximum feasible participation and highlights the extraordinary story of its implementation in Durham, North Carolina. The article offers a definition against which to measure whether participation was “robust” and concludes that three factors were crucial in realizing robust participation: 1. the existence of the statutory participatory mandate; 2. the flexibility wielded by administrators in implementing the mandate; and 3. the choice by the agency to fund autonomous, community-controlled groups as a mechanism to realize robust participation. The article ends with two primary conclusions, one directed at new governance and the second directed at those invested in community lawyering. For new governance, the history suggests that participatory structures, as currently constituted, are likely to lead to little more than tokenism. For advocates committed to support the efforts of communities to build and wield political power, however, the article offers a more hopeful suggestion. Embracing what Scott Cummings has termed “constrained legalism,” the article suggests that advocates might take a page from history and, like our predecessors, seek to create, out of the tokenistic nods to participatory governance in current policy, programs and structures that might yield both robust participation and poverty policy that, in the eyes of poor communities, actually meets their needs.

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