A Response to David Landau by Mark Tushnet

[Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School, responds to David Landau, The Reality of Social Rights Enforcement. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

David Landau’s article is an important contribution to a growing literature on the judicial role in enforcing social and economic rights. He joins others in noting that debate has ended over whether constitutions should include such rights and whether, if included, those rights should be judicially enforceable. (As does Landau, I put aside the U.S. case in this comment.) Not “whether,” but “how” is the question now on the table among serious scholars and judges.

Landau’s article presents the “how” question in a new light. Drawing together numerous strands in the literature, he helpfully identifies four remedial forms – individual actions primarily seeking individual-level affirmative relief, negative injunctions, weak-form review, and structural injunctions – and assesses their likely effects on the distribution of the material goods that social and economic rights are designed to secure. Proponents of such rights seek them primarily to ensure that the least advantaged in society live in material conditions consistent with basic human dignity.

As Landau observes, effective implementation of social and economic rights for the least advantaged faces formidable obstacles. Many of the world’s poorest nations have severely limited internal economic resources. Political obstacles are substantial even when resources are available, or could be made available through tax increases. Those already advantaged typically have a favored position in national politics, allowing them to block redistributive initiatives (whether from the legislature or from the courts). The least advantaged may be quite numerous, but they face resource constraints in mobilizing politically or in litigation. The prospects for achieving substantial improvements in the material conditions of the least advantaged through political or judicial action are inevitably small. One might think that judicial resources should be husbanded for use in the most favorable conditions for enforcing social and economic rights.

Yet, Landau persuasively argues, individual actions are likely to provide social and economic rights primarily for those in the middle classes, not for the least advantaged. The reason is that those in the middle classes are more likely than the least advantaged to have the ability to mobilize the legal system in an individual action. Negative injunctions have a limited impact as well. They can protect against the erosion of existing conditions. Negative injunctions can sometimes freeze the status quo to benefit the least advantaged, as in cases where the homeless and internally displaced persons have taken over unoccupied property as their homes. But, again structurally, the status quo is almost by definition unfavorable to the least advantaged.

That leaves weak-form review and structural injunctions as candidates for remedial forms to enforce social and economic rights for the least advantaged. Drawing on a study of Colombia jurisprudence (broadly understood) in cases involving internally displaced populations, Landau argues that structural injunctions have been more successful there than weak-form relief has been in South Africa.

Landau’s article advances our understanding of the remedial issues he discusses. But, I believe that there are some conceptual matters that require additional exploration. (Landau argues that the Colombian displaced persons litigation has been reasonably successful, and for purposes of this comment I accept that characterization, though with qualifications I note below.)

The conceptual difficulties with assessments like Landau’s are temporal and causal. One temporal difficulty in assessing remedial outcomes is clear: We need some metric to determine how long we should wait before evaluating a remedy’s success, and we need some metric to measure success. Landau uses “improvement in material conditions” as his metric. But, improvement comes in degrees, and we need some standard for determining when an improvement is “enough” to count as a success. Landau treats the improvements in conditions of displaced persons along some dimensions – health and education – as “enough” even though improvements along other dimensions appear to have been small. The Grootboom case, which Landau (with others) characterizes as a failure of weak-form review, produced some acceleration in the provision of housing for those in desperate need – the remedy’s target – even though Mrs. Grootboom and those she represented in the litigation never obtained replacement housing. Why was the acceleration not “enough”?

I begin my comments on some causal aspects of Landau’s argument with an observation about terminology. I find the distinction between weak-form and structural relief thinner than Landau seems to. I take the difference to be that the latter are substantially more detailed and prescriptive than the former. I believe that the U.S. experience indicates that structural injunctions typically begin as weak-form injunctions with little detail, and Landau’s account of the Colombian displaced persons litigation suggest that the same might be true there. If so, the contrast he draws between the two remedial forms may reflect temporal rather than analytical differences.

With the preceding observations in hand, I can restate, in summary form, the case for weak-form remedies in cases involving social and economic rights. For present purposes, the case begins by noting that individual actions generate bureaucratic resistance, structural injunctions political resistance. Weak-form remedies try to draft – or, to use a term Landau does, cajole – the bureaucracies and political actors into supporting policies that they would not have adopted on their own.

Bureaucracies resist individual actions because the litigation injects substantial irrationality into bureaucratic functioning. The right-to-medication cases are exemplary. Health-care bureaucrats have to allocate limited resources for medications. Everywhere they do so by developing lists of medications for which the health-care system will pay. Where things are going reasonably well, the lists are based on reasonably professional evaluations of costs and benefits. Of course things may not always be going reasonably well. The bureaucracy may be too slow moving, for example, updating its lists infrequently or responding too slowly to developments in medical practice. The remedy for those problems ought to be a structural injunction directed at the bureaucracy’s operating procedures, rather than individual actions directed at its decisions about particular medications.

Structural injunctions, though, generate political resistance. The case for weak-form remedies keeps these difficulties in mind. With a bit of overstatement, it could be said that weak-form remedies are designed to turn bureaucratic and political resistance around, to draft the bureaucracies and the politicians into supporting a court-devised policy. Landau’s example of Acciòn Social suggests how politicians can be drafted into the courts’ service as well. A politician can create a bureaucracy to do what the court requires, or assign the task to an existing agency, and then claim credit for whatever successes accrue. More abstractly, dialogic remedies give politicians some “buy-in” on the policies they are called upon to implement.

In addition, the dialogue in weak-form injunctions begins with a tentative decision to implement a specific policy, followed by a period in which the successes and failures of that policy can be observed, followed in turn by the next stage of judicial re-evaluation and transformation of the initial policy. Learning matters in areas of complex social policy. Weak-form injunctions enable learning by the courts, while embedding the courts’ general policies within the implementing bureaucracies. Here too Landau’s Colombian case study seems to me consistent with the case for weak-form remedies rather than a challenge to that case.

My comments may seem merely terminological, but there might be implications beyond terminology. Landau’s argument may have an audience among judges, who might take his argument as the basis for concluding that the judges ought to skip the weak-form stage and move directly to the structural injunction. Doing so, though, might lose some of the buy-in and learning advantages of weak-form remedies I have described.

As I have noted, Landau says that the Colombian structural injunctions cajoled policy-makers into action. “Cajole” is a word in a family of words about conversation and, yes, dialogue. As I read it, Landau’s article is an elaboration rather than a critique of the case for weak-form remedies. However read, though, it is an important contribution to scholarship on the judicial enforcement of social and economic rights.