[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. (more…)
[ David Landau, Assistant Professor of Law, Florida State University College of Law, describes his recently published article, The Reality of Social Rights Enforcement. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]
Despite the lack of socio-economic rights in the U.S. Constitution and the absence of political will to enforce them, the vast majority of constitutions around the world now include these rights, and courts are enforcing them in increasingly aggressive and creative ways. Scholars have produced a large and theoretically rich literature on the topic. Virtually all of this literature assumes that social rights enforcement is about the advancement of impoverished, marginalized groups. Moreover, the consensus recommendation of that literature, according to scholars like Cass Sunstein and Mark Tushnet, is that courts can enforce socio-economic rights but should do so in a weak-form or dialogical manner, whereby they point out violations of rights but leave the remedies to the political branches. These scholars argue that by behaving this way, courts can avoid severe strains on their democratic legitimacy and capacity. Based on an in-depth case study of Colombia, which draws on my extensive fieldwork within that country, and on evidence from other countries including Brazil, Argentina, Hungary, South Africa, and India, I argue that both the assumption and the consensus recommendation are wrong. In fact, most social rights enforcement has benefited middle- or upper-class groups, rather than the poor. Courts are far more likely to protect pension rights for civil servants or housing subsidies for the middle class than they are to transform the lives of marginalized groups. Moreover, the choice of remedy used by the court has a huge effect on whether impoverished groups feel any impact from the intervention. Super-strong remedies like structural injunctions are the most likely ways to transform bureaucratic practice and to positively impact the lives of poorer citizens. The solution to the socio-economic rights problem is to make remedies stronger, not weaker.
The Harvard International Law Journal is pleased to announce its third online symposium with Opinio Juris. The symposium will begin tomorrow, Monday, January 23 and will run until Thursday, January 26. It features the following line-up:
On Monday, Mark Tushnet will respond to David Landau‘s article, The Reality of Social Rights Enforcement.
On Tuesday, Darryl Robinson and Carsten Stahn will respond to Kevin Jon Heller’s article, A Sentence-Based Theory of Complementarity.
On Wednesday, Carlos Vazquez will respond to David L. Sloss‘ article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties.
On Thursday, Scott Kennedy will respond to Mark Wu‘s article, Antidumping in Asia’s Emerging Giants.
Each of the authors will offer introductory comments on his work and many will provide direct responses to the questions and comments of the contributors. We are looking forward to the conversations that result and would like to thank each of the authors and responders for participating in this symposium!