Where Legal Intervention Fails

By Kim-Linh Vo '28

---

Introduction

For centuries, laws and legal systems have been a default tool for social reform in the United States and across the world. At its core, this legislative approach functions by regulating individual actions to drive collective change. For example, many laws exist to fix issues within societies or maintain a safe, efficient environment. Mandatory seat belt laws helped to dramatically reduce the number of annual deaths in car accidents. (1) Indoor smoking bans similarly reduced second-hand smoke exposure, asthma rates, and cardiovascular incidents. (2)

However, the law is not well-equipped to solve every problem society faces; in fact, there are many issues that the law cannot address in their entirety. Law is a fundamentally limited instrument for addressing many structural societal problems because it primarily operates through regulating individual behaviors rather than driving systemic change, a limitation made painfully clear by the failings of the American welfare system across nearly a century of ineffective legislative intervention.

Evaluating Law as a Policy Instrument

Legal systems are not the sole instrument available for shifting the actions of a collective society. Behavior can also be shaped by social norms, market incentives, and the physical or institutional environment. (3)

Consider the problem of reducing deaths from vehicle accidents. One legal response is to require seatbelt use and impose penalties for noncompliance, but policymakers can pursue the same goal through other means. Public awareness campaigns can shift social norms by making reckless driving less socially acceptable. (4) Insurance companies can use market incentives by charging higher premiums to high-risk drivers and rewarding safer behavior. (5) Environmental or architectural changes, including speed bumps, roundabouts, and reliable public transportation, can reduce accidents by changing the conditions in which people travel. (6)

These alternatives demonstrate that law is only one tool available to policymakers attempting to encourage societal change. The real consideration is not whether law can influence behavior, but when it can be the most effective way to address a particular social problem.

An understanding of what the law does is required to best answer this query. While there is no one definition for the law, it can be thought of as a set of rules that control behavior, often by spelling out consequences for noncompliance. (7) Laws are enforced through a controlling authority (ex. state or federal governments), so in theory, laws work to alter decisions by changing the incentives associated with particular actions. (8)

Accordingly, for the purpose of evaluating law as a tool for social reform, the efficacy of legal intervention should not be measured by whether a law is enacted or enforced, but instead will be evaluated based on whether it achieves the social objective it was intended to address. A law is successful when it produces meaningful improvements in society and when it performs at least as effectively as plausible alternatives for solving the same problem.

American Welfare as a Case Study

Great Depression Welfare Legislation

America’s ongoing fight to reduce poverty is a prevalent example of a social issue for which legal intervention alone is not well-equipped to handle. Unlike problems with reckless driving, smoking, or racial segregation, the cause of poverty is not simply due to a portion of society engaging in harmful behavior. A mix of behavior, macroeconomic, harmful policy, culture, and institutional conditions is what results in about 19 million people living in poverty (less than $20 per day) in the United States as of 2025. (9)

Even so, Congress has been implementing policies to attempt to reduce poverty since the Social Security Act of 1935, which established financial cushions for elderly workers/retirees and the millions of Americans left unemployed in the wake of the Great Depression. (10)

The redistributive effects of early welfare legislation are difficult to measure in isolation, and some analyses suggest that the cumulative structure of mid-century policy may have done little to close - and in some cases may have widened - the wealth gap. (11) However, importantly, welfare benefits were recognized as a legally protected right in Goldberg v. Kelly, where the U.S. Supreme Court affirmed procedural due process rights required a fair hearing before the termination of welfare benefits. (12)

PRWORA & Modern Welfare Law

In 1996, Congress would circumvent the status of welfare as a legally protected right by passing the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which majorly restructured the American welfare system to decrease federal aid given to the unemployed. (13)

PRWORA gave authority over welfare to the states, along with fixed budgets per year to sustain aid programs. Meanwhile, the previously indefinite federal aid was dismantled, and many immigrants (both legal and illegal) were determined to be ineligible for benefits like food stamps. (14)

To encourage self-sufficiency, PRWORA required adults in the program to have a job or participate in education within two years. (15) In turn, the act exemplifies the issue with legal intervention: addressing systemic issues like poverty as a strictly behavioral issue that people can simply work their way out of. While the policy to push people to better their financial situations was functional in principle, the effects of legal restructuring told a different story.

The Effects of PRWORA

In the years that followed, PRWORA’s policies presented nuanced outcomes. From 1996 to just before the 2008 financial crisis, the number of people living on less than $20 per day fell from 27.5 million to 25.6 million. (16) Many states did follow through on setting up their own welfare programs, so many viewed the act as a success. (17)

Despite this apparent success, there is compelling evidence for claims that PRWORA was more harmful to many people. For example, even though overall poverty rates decreased, the number of people in extreme poverty (less than $2 per day) increased. (18) For children, child neglect cases rose across the board, especially in marginalized communities, and foster care homes reached an all-time high of over 500,000 children. (19)

From a legal standpoint, PRWORA took welfare benefits from being an enforceable legal right to a benefit at the discretion of the states, making aid for lower incomes much less reliable. Even the courts could not reinstate welfare aid as a legally protected right. In Saenz v. Roe, the U.S. Supreme Court struck down California’s limit of welfare benefits to new residents on the grounds that it was a violation of the right to travel. (20) Even with the favorable ruling, the Supreme Court could only fix California’s unjust implementation, not restore the federal statutory entitlement welfare benefits that had pre-PRWORA. (21)

Moreover, the impacts of PRWORA in isolation are contested, as the economic growth following its signing coincided with the largest period of economic expansion since World War II. (22) Overall, the gap between PRWORA's legal mechanism and its intended social outcome raises a deeper question about the limits of law as an instrument for structural change.

Why the Law Failed Welfare

Examining whether or not American welfare law has produced meaningful improvements and outperformed other plausible alternatives answers questions about the limits of law on structural change. Due to its limited observable benefits in decreasing the national poverty rate and its adverse effects on children and extreme poverty, we can conclude that it fails on both accounts.

The biggest issue with PRWORA was not that it was a poorly-written law, but rather that poverty is structurally incompatible with what law does mechanically. Law provides incentives to change behavior, but it does not address the underlying social issues like the labor market, housing costs, healthcare access, or institutional conditions that perpetuate poverty. (23)

The legal system is a strong system that upholds American justice, but that does not mean it does not have its faults. Legal protection is often locked behind a paywall of attorney fees, procedural complexity, and a familiarity with the legal system that the vast majority of Americans do not have. (24) On the other hand, government agencies and corporations navigate legal systems more effectively than impoverished individuals who may only encounter the legal system once or twice in their lives. (25)

PRWORA created a legal framework that the lower-income individuals had to navigate largely alone and largely without recourse when states failed them. (26) Even when it did make it to the courts, judicial intervention was limited in scope, as demonstrated by Saenz v. Roe - where the Supreme Court could correct one state's overreach but could not restore the federal entitlement Congress had eliminated. (27)

Legal intervention is most effective when it targets discrete, identifiable behaviors. It is far less equipped to address problems rooted in systemic conditions that no single behavior, or set of behaviors, can fully explain. American welfare law illustrates this limitation clearly: across nearly a century of legislative intervention, law reshaped behavior without addressing the structural conditions that produce poverty.

This observation is not an attack on law as a system, as it is and will always remain vitally important to American society. Rather, it is an emphasis on the importance of deliberate institutional thinking. Before reaching for legislation, policymakers and legal practitioners should ask if the law is actually capable of solving this kind of problem, or are there better tools available?

Endnotes

1. Charles Kahane, Ph.D, “Lives Saved by Vehicle Safety Technologies and Associated Federal Motor Vehicle Safety Standards, 1960 to 2012 – Passenger Cars and LTVs.” Washington, D.C.: National Highway Transportation Safety Administration, January 2015.

2. Center for Disease Control and Prevention. “Smokefree Policies Improve Health.” CDC Archive, September 2, 2022. archive.cdc.gov/www_cdc_gov/tobacco/secondhand-smoke/protection/improve-health.htm.

3. Lawrence Lessig, Code and Other Laws of Cyberspace. New York: Basic Books, 1999.

4. Ibid.

5. Ibid.

6. Ibid.

7. Cornell Law School, “Law,” LII / Legal Information Institute, July 2023, www.law.cornell.edu/wex/law.

8. Ibid.

9. David Brady, “Theories of the Causes of Poverty,” Annual Review of Sociology 45 (2019): 155–75, doi.org/10.2307/48547638; Joe Hasell et al., “Poverty,” Our World in Data 2, no. 1 (2022), ourworldindata.org/poverty.

10. Social Security Act of 1935, Pub. L. No. 74-271, 49 Stat. 620 (1935).

11. Jill S. Quadagno, “Welfare Capitalism and the Social Security Act of 1935.” American Sociological Review 49, no. 5 (1984): 632–47. doi.org/10.2307/2095421.

12. Goldberg v. Kelly, 397 U.S. 254 (1970).

13. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996).

14. Ibid.

15. Ibid.

16. Joe Hasell et al., “Poverty,”

17. Amanda Sheely, “Devolution and Welfare Reform: Re-Evaluating ‘Success.’” Social Work 57, no. 4 (2012): 321–31. www.jstor.org/stable/23719447.

18. H. Luke Shaefer and Kathryn Edin, “The Rise of Extreme Poverty in the United States,” Pathways, 2014, 28–32., inequality.stanford.edu/sites/default/files/media/_media/pdf/pathways/summer_2014/Pathways_Summer_2014_ShaeferEdin.pdf.

19. Harriette Pipes McAdoo, Black Families, 4th ed. (Sage Publications, 2006), 334.

20. Saenz v. Roe, 526 U.S. 489 (1999).

21. Ibid.

22. Hanming Fang and Michael P. Keane, “Assessing the Impact of Welfare Reform on Single Mothers,” Brookings Papers on Economic Activity 2004, no. 1 (2004): 1–116, doi.org/10.1353/eca.2004.0015.

23. Cornell Law School, “Law,”

24. Marc Galanter, “Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change.” Law & Society Review 9, no. 1 (1974): 95–160. doi.org/10.2307/3053023.

25. Ibid.

26. Harriette Pipes McAdoo, Black Families.

27. Saenz v. Roe, 526 U.S. 489 (1999).