Flourishing Rights

Wendy A. Bach*

Failure to Flourish: How Law Undermines Family Relationships. By Clare Huntington. Oxford and New York: Oxford University Press. 2014. Pp. xix, 320. $45.

There is something audacious at the heart of Clare Huntington’s Failure to Flourish.[1] She insists that the state exists to ensure that families flourish. Not just that they survive, or not starve, or be able, somehow, to make ends meet—but that they flourish. She demands this not just for some families but, importantly, for all families. This simple, bold, and profoundly countercultural demand allows Huntington to make a tremendously convincing case that the state can begin to do precisely that. Failure to Flourish is a brave, rigorously produced, carefully researched, and politically astute book. Huntington seeks to persuade a wide swath of the American political landscape, and at every turn she chooses her words carefully to accomplish that end. This is an ambitious effort, and we would all be much better off if it succeeds.

In one of the most ambitious features of the book, Huntington attempts to transcend class, race, and gender boundaries. Although she is tremendously nuanced in dealing with the complexities of this endeavor, Huntington ultimately seeks universality. As a scholar dedicated to issues of poverty, I have no doubt that any restructuring of the relationship between poor families and the state will fare better if it is tightly anchored to universal solutions. The history of U.S. social-welfare policy teaches all too well that, when legal structures are targeted at the poor, structural racism, classism, and intersectional manifestations of gender bias raise their ugly heads. So we need something that is hard to get—we need universal solutions that take into account the differences in how legal institutions function across race, class, and gender. Ultimately, I applaud this book as a major contribution to the discussion of how the law must treat and support families and children, but I differ with Huntington in a few instances where she does not adequately account for the ways that legal institutions function in poor communities in general and poor communities of color in particular.

This Review proceeds as follows. Part I provides an overview of the book, outlining its main arguments. Part II turns to the question of poverty and describes central features of the current relationship between poor communities and the state as hyperregulatory, which means that the mechanisms of social support “are targeted by race, class, gender, and place to exert punitive social control over poor, African-American women, their families, and their communities.”[2] Part III then suggests that, rather than reject rights in child-welfare proceedings and beyond, Huntington’s project might be more beneficial for those in poverty if we embrace a robust conception of rights. This Part acknowledges that, for those in poverty, our current constitutional jurisprudence confers neither any significant protection against rights violations nor a right to support. Nevertheless, Part III argues that a framework emphasizing rights allows us to see, in the interstitial cracks of our statutory schema and in daily fights on the ground for help and dignity, some glimmers of this more robust conceptualization of rights. Finally, this Part highlights the many ways in which Huntington’s project challenges race, gender, and class privilege. In light of these challenges, this Review argues that, in addition to asserting vigorously rights that exist, we need to push forward in the project of theorizing a more robust conception of rights. Building on the work of Dorothy Roberts and Martha Fineman, Part III concludes by describing such a rights theory.

*      Associate Professor of Law, University of Tennessee College of Law.

[1].     Clare Huntington is a Professor of Law, Fordham University School of Law.

[2].     Wendy A. Bach, The Hyperregulatory State: Women, Race, Poverty and Support, 25 Yale J.L. & Feminism 319, 322 (2014); see also Kaaryn S. Gustafson, Cheating Welfare: Public Assistance and the Criminalization of Poverty 1 (2011).

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