Courts and Social Change: Lessons from the Struggle to Universalize Access to HIV/AIDS Treatment in Argentina

Paola Bergallo

89 Texas L. Rev. 1611

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In this Article, Professor Bergallo examines recent adjudication of so-called “second-generation rights,” must notably the right to health.  Specifically, she examines right-to-health litigation relating to HIV/AIDS treatment in Argentina.  Bergallo first analyzes the initial difficulties that Argentina faced in implementing effective HIV/AIDS treatment before tackling the early litigation meant to correct the deficiencies.  Bergallo argues that these early cases, most notably the landmarkBenghalensis decision, resulted in reform at individual, policy, and societal levels.  In contrast, the post-Benghalensis landscape has not resulted in similarly sweeping changes, as courts have preferred to render decisions based on individual inadequacy, not systemic failure.  Because of this case-by-case curative decision-making, Bergallo argues that the current inequities that are pervasive in the Argentine health system may have been exacerbated.

Property in the Post-post-revolution: Notes on the Crisis of the Constitutional Idea of Property in Contemporary Mexico

Antonio Azuela

89 Texas L. Rev. 1915

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Professor Azuela responds to a critical lack of contemporary constitutional scholarship concerning property rights in Mexico.  He argues that current problems affecting property rights in Mexico stem from a variety of social and political issues, including eminent domain and the tragedy of the commons.  Given this variety, theoretical models are often lacking, so Professor Azuela proposes a research agenda that will address weaknesses, account for the constitutional and social-science dynamics of the debate.

Harming the Poor Through Social Rights Litigation: Lessons from Brazil

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.

Commentary: Social and Economic Rights in Latin America: Constitutional Courts and the Prospects for Pro-poor Interventions

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.

Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America

Cisar Rodriguez-Garavito

89 Texas L. Rev. 1669

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During the last two decades, Latin American courts, activists, and scholars have developed legal theories, strategies, and doctrines aimed at fulfilling the promise of socioeconomic rights in contexts marked by deprivation and inequality. For example, in 2004, the Colombian Constitutional Court (CCC) aggregated the constitutional complaints (tutelas) of 1,150 displaced families and handed down its most ambitious ruling in its two decades of existence: Judgment T-025, in which the court declared that the humanitarian emergency caused by forced displacement constituted an “unconstitutional state of affairs,” and the court ordered a series of structural measures that has spawned a remedial process that continues today.

Professor Rodríguez-Garavito analyzes the CCC’s decisions in such “structural cases,” positing that that this judicial activism, although particularly visible in the CCC’s jurisprudence, is part of an emerging trend in Latin America and other regions of the global south, including India and South Africa. However, notwithstanding the proliferation of activist rulings and the resultant increase in literature on the justiciability of such activism, Rodríguez-Garavito claims that the exclusive emphasis on the production phase of judgments has created an analytical and practical blind spot with regard to the implementation stage.

Rodríguez-Garavito considers this blind spot and attempts to answer the question of the fate of activist decisions by laying out an analytical framework for understanding the effects of such decisions, and accounting for the different levels of impact of activist rulings. Rodríguez-Garavito empirically grounds this analysis in a larger comparative study of the impact of the CCC’s rulings in other structural cases and proposes a twofold argument. First, to capture the full range of effects of court decisions, impact studies need to enlarge the conventional theoretical and methodological field of vision. Second, with regard to court-controlled factors that may enhance a given ruling’s overall impact, it is likely to be higher when courts engage in “dialogic activism” through detailed institutional mechanisms.

Commentary: Comparative Constitutional Law and Property: Responses to Alviar and Azuela

Karen Engle

89 Texas L. Rev. 1957

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Professor Engle comments on Alviar’s analysis of property regimes in Colombia and Azuela’s analysis of the same in Mexico.  She begins by noting the difficulties with identifying a locus of comparative analysis and potential distortions arising from the selection of symposium authors.  Next, Engle argues that while both Alviar and Azuela identify an impulse toward redistribution, regimes in Colombia and Mexico also protect private property rights, and she explicates the tension between these impulses.  This tension has largely inhibited widespread redistribution of property.  According to Engle, this tension is also between a communal and individual conception of rights.  Next, Professor Engle also identifies a tension between these articles as to whether these land issues are beyond the law or part of the law itself.  In conclusion, Professor Engle recognizes that these articles offer helpful insight for attending to distributional issues and degradation in the region.

Transcript: Social and Economic Rights and the Colombian Constitutional Court

Manuel Jose Cepeda-Espinoza

89 Texas L. Rev. 1699

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In this transcript, a former justice of the Colombian Constitutional Court reflects on the court’s jurisprudence and offers a typology to categorize its decision making.  He observes that Colombia is characterized by judicial independence, a tendency to decide cases on the structural level, and an active tutela system.  Former Justice Cepeda-Espinoza also reflects on political constraints on judges, including the active economic “techno-bureaucracy.”

In the end, he suggests that the court’s decisions are best analyzed along a continuum which considers the level of systemic applicability of the court’s decision, how rights are protected, and how judges relate to public policies, among other considerations.

Commentary: Courts in Latin America and the Constraints of the Civil Law Tradition

Victor Ferreres Comella

89 Texas L. Rev. 1967

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Professor Victor Ferreres Comella identifies a theme from the Constitutional Review panelists, namely “Courts in Latin America and the constraints of the civil law tradition.”  He views the panel’s identification of the structural limitations on courts as on point but wonders how best to account for the limited respect for precedent in Latin America, as against the constitutional values of certainty and equality.  Abstract review guards against the weak nature of precedent, but there has not been a systematic study to date of this review mechanism in practice.  Also unanswered is how judges approach abstract review and whether they treat matters differently depending on their scope.  Systematic analysis is also lacking with respect to the judicial practice of reconstructing problematic statutes.  Consideration of these issues, according to Professor Victor Ferreres Comella, would advance the academic conversation.

Latin American Presidentialism in Comparative and Historical Perspective

Jose Antonio Cheibub, Zachary Elkins & Tom Ginsburg

89 Texas L. Rev. 1707

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In this Article, Professors Cheibub, Elkins, and Ginsburg argue that the century or region in which a constitution was written is a better predictor of institutional similarity than its classification as presidential, parliamentary, or semi-presidential.

The authors examine the origins of various Latin American constitutions, comparing them with the constitutions from which they drew influence.  They conclude that Latin American constitutions have departed from their influencing documents and, instead, have more in common with one another.  Beyond this, the authors argue that Latin American constitutions contain a number of unique mechanisms conducive to increases in executive authority—a source of abuse.  Specifically, Latin American constitutions are more likely to allow for broader emergency powers of the president, more discretion in determining whether emergency conditions exist, and an expanded role in lawmaking from non-Latin American presidential constitutions.

Commentary: Constitutional Structure in Latin America

Jonathan Hartlyn

89 Texas L. Rev. 1977

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Professor Hartlyn identifies a research agenda in response to symposium contributions about constitutional structures in Latin America.  He wonders what the proper analytical focus is for understanding presidentialism in the region.  He sees value in a comparative case study which examines the structure and function of presidential powers, including budgetary authority.  Professor Negretto’s article fills some of the gap with its systematic empirical analysis of convergence of executive functions across several dimensions.  Hartlyn concludes that regional politics in Latin America is as much about the rules as political conflict associated with them.