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Article Title

Beyond Minimalism and Usurpation: Designing Judicial Review to Control the Mis-enforcement of Socioeconomic Rights

Publication Title

Washington University Global Studies Law Review

Abstract

Two opposing arguments–judicial restraint and judicial activism–have polarized the constitutional law debate on the judicial enforcement of socio-economic rights in developing countries. The former argues that judicial under-enforcement would be preferable to judicial over- enforcement of rights, so that courts should adopt weak remedies when implementing policies and legislation. The latter argues the contrary, prescribing strong review as an efficient mechanism of enforcement. Drawing on empirical research on the right to health care-related litigation in Brazil, this work presents evidence that constitutional law has fallen into a false dichotomy. Neither of these two arguments offers a complete account of the core of the case of the judicial implementation of socio-economic rights: the mis-enforcement of rights, a scenario in which the protection of a target group causes unintended distributive and aggregate effects that increase overall inequality. As the empirical findings demonstrate, under the Brazilian institutional arrangements, with characteristics shared by other developing countries, mis-enforcement may arise from both under- and over-enforcement of rights. For this reason, the level of review alone is an insufficient criterion to build a universal formula of judicial decision-making in socio-economic rights- related litigation. Besides, two overlooked structural factors may be the root of the mis-enforcement issue: a litigation system focused on individualized lawsuits, as well as a formalist rights-based legal reasoning adopted by courts, which disregards institutional arrangements and costs of compliance with rulings. In order to reorient the debate, this paper argues that judicial enforcement of socio-economic rights is legitimate as long as it commits to 1) enriching the political process, mainly by pushing issues back to political players with correct incentives of action and institutional adherence, and 2) fixing minor counter-majoritarian issues related to the distribution of limited public resources, mainly by guaranteeing basic needs to the most disadvantaged groups. Instead of adopting a universal formula of judicial review, this dual purpose requires courts dealing with socio-economic rights implementation to enhance their actual institutional capacities in order to build case-by-case remedies that 1) take into account issues more likely to arise in this kind of litigation, such as types of needs and recipients, and distributive and aggregate impacts of rulings; as well as 2) promote political engagement, institutional accountability, and democratic representativeness.

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