Vulnerability Theory and the Role of Government

In a political climate in which the role of government is actively being questioned, Martha Fineman's "vulnerability theory" is rapidly gaining momentum as a justification for expansive social welfare laws. Despite the growing body of literature applying vulnerability theory to a broad range of legal problems, scholars have yet to critically explore the theory's limitations. This article fills that void by analyzing the theory's utility and scope. It shows how examining vulnerability theory through the lens of old-age policy reveals the theory's limited prescriptive value and its tendency-as currently articulated-to promote unduly paternalistic policies. It then describes how vulnerability theory could be refined to provide greater respect for individual liberty and to enhance its value as a tool for defining the appropriate role of government. Finally, it argues that, although Fineman's theory of vulnerability does not indicate how to allocate resources among vulnerable individuals, vulnerability may nevertheless be a useful construct around which to design social policy. t David M. Levy Professor of Law, Syracuse University College of Law; J.D., Harvard Law School; A.B., Princeton University. The author thanks Jamie Abrams, Rakesh Anand, Ann Bartow, Keith Bybee, Angela Campbell, Evan Criddle, David Driesen, Rashmi Dyal-Chand, Cora True-Frost, Samantha Godwin, Lauryn Gouldin, Margaret Hall, Jeffrey Milder, Linda McClain, Mary Helen McNeal, Robin P. Malloy, Alexandra Natapoff, Mariela Olivares, Dave Owen, and Sarah Schindler for their helpful feedback on earlier drafts of this article, and Jill Cramer, Marissa Nossick, and Edward Thater for their research assistance. Previous versions of this article were presented as part of the University of California Los Angeles School of Law faculty colloquium series, the Loyola Law School faculty colloquium series, the Northeastern School of Law faculty colloquium series, the Gender, Law, & Policy Colloquium at Boston University, the American Association of Law Schools 2013 Annual Conference, and the Law and Society Association 2013 Annual Conference; the author also extends thanks to those who provided feedback as part of these events. Finally, the author also thanks Martha Fineman for meeting with the author to discuss vulnerability theory and many of the arguments raised herein. Copyright © 2014 by the Yale Journal of Law and Feminism Yale Journal of Law and Feminism I. INTRO DUCTION .................................................................................... 2 II. FINEMAN'S THEORY OF VULNERABILITY ............................................ 5 1II. THE INSTRUMENTAL VALUE OF VULNERABILITY THEORY ................. 9 IV. THE LIMITATIONS OF VULNERABILITY THEORY .................................... 11 A . Lim ited Prescriptive V alue ............................................................ 11 B . U ndue Paternalism ..................................................................... 14 V. A PROPOSAL TO REFINE VULNERABILITY THEORY ........................... 21 VI. TOWARD VULNERABILITY-BASED POLICY ......................................... 23 V II. C ONCLUSION ....................................................................................... 26