Daniel M Brinks & William Forbath

89 Texas L. Rev. 1943

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Professors Brinks and Forbath reflect on the symposium contributors’ analysis of social rights jurisprudence and related constitutionalism.  They identify pressing, unanswered questions concerning separation of powers and justiciability of disputes involving social and economic rights (SER).  Threshold questions, such as whether a particular dispute can be litigated, seem to be taken for granted as SER decisions become more wide-ranging in application.

Then, Brinks and Forbath offer suggestions to SER litigants who seek to extend the benefits of public services and public goods to the disaffected.  They suggest that litigants be aware of the context of their claims, including courts’ ability to affect change.  In conclusion, they ask whether SER litigation offers a net benefit to disaffected groups, in light of the symposium contributors’ observations, considering the effects of such matters to date, but this analysis would require more understanding of who the current “losers” are in SER litigation.