Octavio Luiz Motta Ferraz

89 Texas L. Rev. 1643

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In this Article, Professor Ferraz examines social rights litigation in Brazil.  He argues that, although many social rights activists have praised the assertive nature of Brazilian courts in right-to-health litigation, such decisions may have pernicious consequences.  Ferraz argues that Brazilian courts have incorrectly interpreted the constitutional right to health in absolutist terms, providing a “maximum health attention.” As a result of this decision, given limited governmental resources, such resources unreasonably favor the litigant minority to the non-litigant majority.  Because this minority is constructed mostly of the more privileged members of the country, it strengthens inequalities.  Moreover, Ferraz argues that mere enhanced access to courts for the poor will not solve the issue.  He asserts that the “inegalitarian ethos” which pervades Brazilian society will make it impossible for Brazilian courts to assertively enforce right-to-health claims in a way that actually attempts to remedy inequality.  Instead, he advocates for more effort to change such ethos and less faith placed in social rights litigation.