[Editor’s Note: In this first installment of I•CONnect’s Article Review Series, Brian Ray reviews David Landau’s article on “The Reality of Social Rights Enforcement.” Professor Landau then responds to Professor Ray’s review.]
A Review of Landau on Social Rights Enforcement
—Brian Ray, Associate Professor, Cleveland-Marshall College of Law
David Landau’s recent article The Reality of Social Rights Enforcement provides some important correctives to what he calls the consensus recommendation that courts should enforce social rights provisions through weak-form or dialogic review. Using an in-depth analysis of Colombian social-rights cases, Landau argues that this consensus is based on the literature’s mistaken preoccupation with issues of democratic legitimacy and court capacity. In Landau’s view, the real tradeoffs involve a more complicated interaction among the effectiveness of the remedy (defined as creating systematic change), the political cost to the court (which incorporates the legitimacy and capacity concerns) and the socioeconomic class of the plaintiffs who benefit from the decision. He calls on social-rights scholarship to shift attention towards this more complicated relationship—in particular to who benefits and whether those benefits have any system-wide effect on the delivery of social services.
Landau’s pragmatic approach highlights important blind spots in the literature’s emphasis on legitimacy and capacity.
The Colombian cases show that courts can and do enforce social rights in very direct ways without debilitating effects. But they also illustrate that individualized enforcement runs the risk of re-directing resources towards higher income groups and fails to meaningfully improve programs for the poor. Landau concludes that we should use the Colombian example to move beyond worrying about whether courts can (or should) strongly enforce social rights and instead figure out how to avoid the potential perverse effects of direct remedies.
One part of his solution is to encourage courts to issue stronger orders in more complex cases including strong structural injunctions ordering broad-based bureaucratic reform. This approach has high political costs but promises to be much more effective because it is aimed at bureaucratic structures and directly improving access to social services by the poor.
I agree with Landau that there is a real need for proponents of weak-form and dialogue-based enforcement approaches (and I include myself in this category) to refocus on the more practical questions of what interventions by courts are likely to have systematic effects that actually improve access by poor people. As Landau—in an exchange with Mark Tushnet at Opinio Juris—more recently described his core argument: we “need to know a lot more about how to prod bureaucracies into changing their social policies for the better” and to figure out “ways in which courts can achieve more systematic change.” That’s a spot-on assessment. But I’m not sure that structural injunctions in complex cases are the most promising approach or that some versions of weak-form approaches can’t accomplish this.
Landau’s analysis accords with a rich social science literature that show courts are able to issue these kinds of intrusive, rights-protective orders only under a fairly specific—and relatively rare—set of conditions. Landau cites this literature and acknowledges that the lesson from these cases is that structural injunctions “must be used sparingly and carefully” and that they are “time-consuming, demand a tremendous amount of legal and political skill from the judiciary and only appear to work well in certain political contexts.” I would go further and argue that the lesson is the conditions necessary for a court to intervene in this way are likely to be few and far between and largely outside of a court’s control. If we are going to focus on the relative effectiveness of judicial enforcement approaches—and Landau is absolutely correct that we should—that measure should take into account the capacity of courts to use those approaches across cases. Expanded in that way, structural injunctions—and probably any strong intervention in the kind of complex mass actions Landau focuses on—fare less well because they will be the exception rather than the rule in social-rights cases.
Taking a longer view of effectiveness also casts a more positive light on at least one of the weak-form examples that Landau dismisses as having had little effect. Landau cites the South African housing-rights case Grootboom where the Constitutional Court limited its remedy to a declaration requiring unspecified changes to government housing policy to accommodate people in emergency situations facing imminent eviction as an example of the ineffectiveness of weak-form review. But Grootboom laid the groundwork for a string of decisions where South African courts have intervened to prevent eviction of poor people—decisions that have prompted substantial changes in government policy and bureaucratic practice at the national, regional and local levels.
Landau’s frustration with weak-form remedies is grounded in a concern that governments will often be unresponsive to softer remedies that leave considerable discretion and impose no time-frame for change. Grootboom’s progeny demonstrate that courts can prompt responses in range of ways short of assuming control of a government program. The basic principle in Grootboom has been extended to require the City of Johannesburg to stop evicting people from inner city buildings slated for demolition until it had alternative accommodations—a decision that prompted the City to revise its inner-city regeneration plan to incorporate the housing needs of displaced poor people. More recently, the Court applied that decision to require the City to expand that same program to provide housing for poor people who are evicted from private land and also to impose a limited obligation on private landowners to delay eviction until public housing is available. Collectively these decisions have had important systematic effects targeted at poor people that give structural injunctions their edge in Landau’s scheme.
The relative success of Grootboom unfortunately has not been replicated as well with other social rights in the South African constitution. And many commentators view the disappointing water-rights decision Mazibuko—where the Constitutional Court overturned lower-court rulings upholding challenges to the installation of pre-paid water meters in certain areas—as a signaling a move towards the unduly restricted role that Landau seeks to dislodge. But there are some promising signs on the horizon. As Chris McConnachie points out two recent lower court rulings enforcing the unqualified right to basic education show real promise in that area. Both decisions are examples of the more creative and aggressive court interventions Landau calls for but are relatively limited in scope and still contain dimensions of a weak-form approach. As Landau persuasively argues in his conclusion, the important question will be whether and how these decisions affect “bureaucrats, politicians and civil society groups—does it strengthen civil society improve bureaucratic performance?” Whether the answer counsels even greater court intrusion into democratic institutions, as Landau further suggests, or possibly less intrusive but still innovative approaches is, I think, still open. In either case, Landau’s work succeeds in moving that conversation in the right direction.
A Reply to Brian Ray
—David Landau, Assistant Professor, Florida State University College of Law
I would like to thank Brian Ray for a thoughtful reply to my piece. Ray and I agree that the core issue is how you get systematic effects out of these decisions; this generally involves convincing or forcing the bureaucracy to make sweeping changes. And there now seems to be little debate that individualized remedies targeted at a single petitioner, at least in their current form, tend to do little to further this goal: bureaucrats will ignore the broader lessons of these opinions and will tend to focus on compliance with individual court orders. This is an important point to get through to judges and scholars, since most enforcement around the world still seems to take this form. Most courts feel most comfortable issuing these kinds of traditional, one-plaintiff remedies for violations, rather than issuing the more creative but more demanding remedies discussed by Ray and myself.
So the remaining debate, as Mark Tushnet has noted, is between structural injunctions and what he has called weak-form review. These are ideal types, but in practice complex remedies rest on a continuum between the two extreme ends. We might say a remedy is complex rather than individualized where it is targeted at large swaths of people rather than individuals or small groups. There seems to be fairly broad agreement that complex remedies are better than individual ones in this area. We might say a remedy is harder rather than softer depending on the extent to which the Court is dictating policy to the other branches.
Ray raises two important points with respect to this second choice. The first is that structural injunctions often tend not to work very well, take a lot of resources, and sometimes get courts in big trouble politically. These points are all true; the long history of structural injunctions in the U.S. bears them out. But there are enough examples of them having some positive effect in U.S. and comparative contexts (most importantly India) for me to think that they show at least some significant promise.
Ray is also right that weak-form remedies, like harder structural remedies, leave lots of room for experimentation. The remedy that Ray has focused on in a series of papers, which he has called “engagement,” is one interesting possibility. The post-Grootboom development of the South African Court has accomplished more than Grootboom itself, although it may be important not to overestimate these accomplishments. The non-eviction orders themselves resemble what I call “negative injunctions” – these help poor people somewhat by maintaining their status quo, but just maintaining the status quo doesn’t do much for people who have almost nothing. Related mechanisms, like incentivizing private landowners to push for construction of public housing by denying their ability to evict squatters until land has been completed, are more promising and have arguably had some payoff.
The state of knowledge in the field therefore suggests that the choice of remedy for large-scale social rights violations is a choice between various bad options. No complex remedy is going to work quickly or particularly well. Beyond that, we know very little. Most jurisprudential development around the world has focused on defining the social rights themselves, rather than in providing innovative remedies for their violation. That is a real tragedy. I suspect that the answers to the challenges raised by scholars like Tushnet and Ray to my piece are highly context-specific, depending on political configuration, the shape and competence of the bureaucracy, the nature of civil society, etc. These vary by issue, and even more significantly by country. But we cannot hope to make progress in the enforcement of social rights until we convince more judges to be more creative.