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2010 January - February

Assessing the Ad Hoc Nature of Financial Obligations Arising in the Illinois Criminal Justice System

By Marie Claire Tran-Leung

Involvement in the criminal justice system today often results in not only punishment for a particular offense but also the imposition of an array of financial fines, fees, and penalties that increasingly bear little rational relationship to the offense itself. These financial obligations do, however, directly affect how former offenders leaving the corrections system can successfully reintegrate into society since the financial burdens weigh most heavily on low-income defendants. As cash-strapped legislatures may be tempted to increase revenues by increasing these financial obligations, advocates should know how to oppose those fiscal policies that punish offenders long after they have served their time.

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Recovering Sargent Shriver’s Vision for Poverty Law

The Illinois FamilyCare Campaign and the Insight Approach to Conflict Resolution and Collaboration

By Jamie Price & Kenneth R. Melchin

Sargent Shriver hoped that legal services for the poor would entail more than “lawyer-made remedies.” He saw legal services as a way to bring about “workable justice.” The FamilyCare campaign of United Power for Action and Justice and the Sargent Shriver National Center on Poverty Law exemplifies Shriver’s vision of attorneys collaborating with a community organization to bring about change through legislation, not the courts. The insight approach facilitates more such collaborations. 

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Going Public

The State-Action Requirement of Due Process in Foreclosure Litigation

By John Pollock

Demonstrating “state action” is a threshold requirement in arguing for the appointment of counsel in foreclosure-related judicial proceedings under the Fourteenth Amendment’s due process clause. In states where lenders must file an action to foreclose, the state judicial process arguably constitutes state action. In nonjudicial-foreclosure states, the argument for state action is less clear. State constitutions may have less stringent state-action requirements than the federal constitution or none at all. The elements needed to show state action, which can be argued under federal or state law, continue to evolve.

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Lassiter Notwithstanding

The Right to Counsel in Foreclosure Actions

By John Pollock

Representation by counsel is especially important in foreclosure actions due to their complexity. Despite the presumption against a right to counsel where liberty is not at stake, as articulated by the U.S. Supreme Court in Lassiter v. Department of Social Services, advocates can make a strong argument that the national epidemic of foreclosure actions passes the Lassiter test. The factors that the U.S. Supreme Court set forth in Matthews v. Eldridge—the private interest at stake, the state’s interest, and the risk of erroneous deprivation of rights—should require assignment of counsel in many foreclosure cases.

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Social Security Administration Retreats from “Unknowing Flight” Doctrine and Will Pay Hundreds of Millions in Back Benefits

By Gerald A. McIntyre, Kevin Prindiville & Anna Rich

The Social Security Administration’s interpretation of the federal statutory “fugitive felon” provision deprived hundreds of thousands of older adults and people with disabilities of benefits for which they were eligible. Recent settlement of a nationwide class action in Martinez v. Astrue will restore these benefits and pay more than $500 million in retroactive benefits to a portion of the class. Outreach by advocates will be critical to ensure that the terms of the settlement are fully realized and clients receive the benefits promised.

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Improving Remote Communication Between Public Benefits Agencies and Deaf and Hard-of-Hearing Individuals

By Cary LaCheen

The ability of public benefit applicants and recipients to communicate with public benefits agencies through other than face-to-face communication is critical. Advocates should be aware of potential communication barriers, legal requirements, and best practices for effective remote communication and should take on communication-access issues in their advocacy efforts.

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Framing in Race-Conscious, Antipoverty Advocacy

A Science-Based Guide to Delivering Your Most Persuasive Message

By Bill Kennedy, Colin Bailey & Emily Fisher

Advances in the science of cognition show that successfully advocating a position or issue cannot be based on logical analysis and strong facts alone. Today’s legal advocates, particularly those working on race equity matters, must understand how to frame their arguments in a manner that recognizes biases, emotions, and unconscious constructs in their audience’s mind. How do frames arise and influence perception, and how can frames be used to promote race equity in the varied contexts encountered by legal advocates?

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How the "Improvement Standard" Improperly Denies Coverage to Medicare Patients with Chronic Conditions

By Gill Deford, Margaret Murphy & Judith Stein

Advocates working on behalf of Medicare beneficiaries should be aware of the so-called improvement standard and how it denies those suffering from chronic conditions the Medicare coverage to which they are otherwise entitled. The standard is found solely in the Centers for Medicare and Medicaid Services manual and has no basis in Medicare statutes or regulations, yet it is routinely applied by Medicare contractors. Litigation has proven to be effective when dealing with this issue, and advocates can benefit from understanding the legal strategies involved. 

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