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More Litigation = More Inequality? Evaluating the Distributive Impact of Social and Economic Rights Litigation

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Abstract:

The literature on judicial interventions on behalf of social and economic rights has gone through a series of phases. Academics began with a relatively theoretical and abstract discussion of whether constitutions ought to include and courts ought to enforce the more substantive, possibly more expensive, social and economic rights. Regardless of academic qualms, constitutions in fact did include them, and courts in fact did begin to enforce them. Then there came a series of studies seeking to understand the conditions under which courts were more or less likely to be the mechanisms of choice for social groups interested in these rights, and thus in the middle of enforcement efforts. Although there is to be sure much still to be said on all these topics, a new generation of studies is emerging that focuses on the impact and effect of all this constitutionalization and judicialization of fundamental aspects of public policy. This paper falls squarely in this category. We use as a starting point the results of a five-country study that identified either all or a broad sample of cases demanding the enforcement of the right to health and the right to education in Brazil, India, Indonesia and Nigeria. Taking these cases as the sample, we identify the populations affected by the judicialization of the rights to health and education, and evaluate whether the litigation had a positive or negative redistributive effect. We develop a conceptual map and theoretical expectations for predicting when litigation is likely to have a positive redistributive or a regressive effect, and we apply that to the results of our empirical investigation.
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Name: The Law and Society Association
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http://www.lawandsociety.org


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URL: http://citation.allacademic.com/meta/p496102_index.html
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MLA Citation:

Brinks, Daniel. and Gauri, Varun. "More Litigation = More Inequality? Evaluating the Distributive Impact of Social and Economic Rights Litigation" Paper presented at the annual meeting of the The Law and Society Association, Westin St. Francis Hotel, San Francisco, CA, May 30, 2011 <Not Available>. 2014-11-25 <http://citation.allacademic.com/meta/p496102_index.html>

APA Citation:

Brinks, D. M. and Gauri, V. , 2011-05-30 "More Litigation = More Inequality? Evaluating the Distributive Impact of Social and Economic Rights Litigation" Paper presented at the annual meeting of the The Law and Society Association, Westin St. Francis Hotel, San Francisco, CA <Not Available>. 2014-11-25 from http://citation.allacademic.com/meta/p496102_index.html

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: The literature on judicial interventions on behalf of social and economic rights has gone through a series of phases. Academics began with a relatively theoretical and abstract discussion of whether constitutions ought to include and courts ought to enforce the more substantive, possibly more expensive, social and economic rights. Regardless of academic qualms, constitutions in fact did include them, and courts in fact did begin to enforce them. Then there came a series of studies seeking to understand the conditions under which courts were more or less likely to be the mechanisms of choice for social groups interested in these rights, and thus in the middle of enforcement efforts. Although there is to be sure much still to be said on all these topics, a new generation of studies is emerging that focuses on the impact and effect of all this constitutionalization and judicialization of fundamental aspects of public policy. This paper falls squarely in this category. We use as a starting point the results of a five-country study that identified either all or a broad sample of cases demanding the enforcement of the right to health and the right to education in Brazil, India, Indonesia and Nigeria. Taking these cases as the sample, we identify the populations affected by the judicialization of the rights to health and education, and evaluate whether the litigation had a positive or negative redistributive effect. We develop a conceptual map and theoretical expectations for predicting when litigation is likely to have a positive redistributive or a regressive effect, and we apply that to the results of our empirical investigation.


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