The Law’s Majestic Equality? The Distributive Impact of Judicializing Social and Economic Rights

Abstract

While many find cause for optimism about the use of law and rights for progressive ends, the academic literature has long been skeptical that courts favor the poor. We show that, with the move toward a robust “new constitutionalism” of social and economic rights, the assumptions underlying the skepticism do not always hold. Our theories must account for variation in the elite bias of law and litigation. In particular, we need to pay closer attention to the broad, collective effects of legal mobilization, rather than focusing narrowly on the litigants and the direct benefits they receive. We support the claim by showing that litigation pursued in legal contexts that create the expectation of collective effects is more likely to avoid the potential anti-poor bias of courts. On the other hand, policy areas dominated by individual litigation and individualized effects are more likely to experience regressive outcomes. Using data on social and economic rights cases in four countries, we estimate the potential pro-poor impact of litigation by examining whether the poor are over- or under-represented among the beneficiaries of litigation. We find that the impact of courts is positive and very much pro-poor in India and South Africa, and slightly negative in Indonesia and Brazil. Overall, we challenge the tendency in the literature to focus on the direct effects of litigation, find that the results of litigation are more positive for the poor than the conventional wisdom would lead us to expect, and offer an explanation that accounts for part of the variation while raising a number of questions for future research.

The Costa Rican Supreme Court’s Compliance Monitoring System

“…Yet again, this supposes that amparo relief is sought more or less by any litigant who perceives there to be a problem. If instead, only a small group of people use the amparo route, then there may be important distributional consequences associated with solving a bureaucratic failure through the constitutional review system (Brinks and Gauri 2014). Another possibility is that the time an individual spends in the queue is systematically related to some personal or group feature.…”

Judicialization 2.0: Understanding right-to-health litigation in real time

“…The failure to fulfill the right to health in the case of Zika continues even after transmission has declined, as the health system is unable to provide appropriate and adequate care to babies affected by the Zika syndrome. responses -litigation -can also be seen as a collective movement to press for local and systemic change (Brinks & Gauri, 2014;Gauri & Brinks, 2012).…”

Realizing Social Rights: The Material Impacts of Constitutional Entrenchment

“…Based on a cross-national analysis of 144 countries from 1970-2010, he finds that, although relatively small, once democracy, inequality, urbanization, and political violence are accounted for, the constitutionalization of the right to health is associated with a statistically significant improvement in under-5 mortality as well as an number of service delivery and expenditure indicators. Small-n studies have also suggested that a more nuanced understanding of the process is necessary to uncover the pro-poor redistributive impacts of social and economic rights Gauri, 2014).…”