On Citation and Dialogue: Thoughts on Inga Markovits, Justice in Lifritz

Leora Auslander

90 Texas L. Rev. 163

PDF Document

Professor Auslander reviews Inga Markovits’s book, Justice in Lüritz: Experiencing Socialist Law in East Germany. As the title indicates, the book sets out to account for the workings of the law under socialist governance in the German Democratic Republic.  Auslander focuses her review on two features of the book that make it unique and significant. The first is a lack of direct references to primary sources. While maybe to the chagrin of traditional historians, Auslander notes that adherence to strict citation practice is not appropriate for the type of study that Markovits engages in; rather, since the purpose of Justice in Lüritz is to convey how people experienced the legal system, the appropriate analogy is to sociology and anthropology—two fields where direct citations to primary sources are often unavailable. Further, had Markovits limited herself to sources that could have been “properly documented,” Auslander argues our understanding of East German law would have been greatly diminished.

The second feature that Auslander notes is the book’s apparent indifference to other scholarly works. Rather than set out to prove another scholar wrong, or even contribute to the scholarly debate, the book emerges very powerfully as the product of individual curiosity and determination. Auslander believes that by taking this approach, Markovits not only avoided potential pitfalls that often emerge in academic writing but also enabled her book to speak to a broader audience. While Auslander does regret some of the implications of this approach, she concludes that Justice in Lüritz succeeds in providing an extraordinarily vivid and complex picture of how people experienced socialist law in East Germany.

Constitutional Emergencies in Argentina: The Romans (not the Judges) Have the Solution

Carlos Rosenkrantz

89 Texas L. Rev. 1557

PDF Document

In constitutional emergencies, protecting the aspirations of the constitution may require either decisions that restrict personal constitutional rights or temporary suspensions of constitutional procedures in favor of more expedient alternatives.  Some contemporary authors address the central issue of creating institutional mechanisms to provide such expediency without irreversibly risking arbitrariness or power concentration by relying on judges to resist any attempts by the executive to restrict individual rights or normal procedures of lawmaking.

Rosenkrantz disagrees with this view, arguing that the challenges of constitutional emergencies should be resolved by designing institutions that (1) provide adequate incentives for the executive to refrain from capricious use of emergency powers and to use emergency powers only when strictly necessary for the common good and (2) protect the value of law qua law for society.  Rosenkrantz grounds his argument in the Argentinean judicial record, showing that Argentinean judges have been unable to restrain the executive’s use of emergency powers adequately or consistently. Rosenkrantz explains this record by highlighting certain attributes of the judiciary that make it difficult for judges to police the executive, and presents his own view of the value of law qua law in order to propose an institutional mechanism that does not make law subservient to power in times of constitutional emergency.

The Mexican Supreme Court‘s (Sexual) Revolution?

Alejandro Madrazo & Estefania Vela

89 Texas L. Rev. 1863

PDF Document

In this Article, Professor Madrazo and Ms. Vela explore recent cases decided by the Mexican Supreme Court involving sexual and reproductive rights to better understand the development of the court as a constitutional arbiter following constitutional reforms enacted in 1994, which began the Ninth Era of the Supreme Court.  Prior to the reforms, the court decided cases, but laws held unconstitutional were simply inapplicable to successful challengers.  Following the reforms, the court was able to strike down unconstitutional laws for the first time.  Although initially limited to conflicts between political classes, the court has taken on an increasing number of cases concerning citizens directly.

Madrazo and Vela first discuss the background of, and decisions issued in, seven important cases regarding sexual and reproductive freedoms.  These cases, involving both the acción de inconstitucionalidad and amparo challenges, were selected by the authors because of what they said, and for what they did not say, about the rights involved.

Following this discussion of cases, Madrazo and Vela provide a more detailed analysis of the rights involved—sexual and reproductive liberty.  While both have a common origin, this Article illustrates the different developmental paths that the supreme court has taken with each.  Madrazo and Vela explain how sexual liberty has developed as a three-pronged right “from a comparatively feeble mooring in the text of the constitution,” while discussion of reproductive liberty has been largely avoided.

Finally, the authors attempt to compare and understand the “two very different attitudes taken by the court to address similar and interrelated matters regarding similar and interrelated rights.”  The “creative and activist court” that deals with the right to sexual liberty is juxtaposed with the “evasive, minimalist court” that is seen in dealing with reproductive liberty.  Madrazo and Vela suggest that this may be a result of the complex transition being undertaken by the court as it moves from being a court of law to being a constitutional tribunal.

The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges

Rodrigo Uprimny

89 Texas L. Rev. 1587

PDF Document

The intensity of Latin American constitutional change since the mid-1980s spawned literature discussing changes in specific countries, certain aspects of Latin American constitutionalism, and the relationship between Latin American reforms and international institutions.  Yet, little has been written about the common features of constitutional development in the region.  Professor Uprimny attempts to fill this gap by pointing out the common trends and significant differences among recent Latin American constitutional changes, in order to characterize such reforms and to establish the main challenges to the construction of strong democracies in the region.

Uprimny begins his systematic analysis by presenting the changes to the traditionally dogmatic aspects of constitutionalism, such as Latin American unity, religious tendencies, multicultural values, individual and fundamental rights, international human rights, and the role of the state.  Uprimny then characterizes the basic features of such constitutional developments, and considers whether they result in diverse constitutional tendencies rather than national nuances.  The Article concludes with a reflection on the potential significance of such constitutional changes and the challenges they post to democracy and constitutional thinking.

The Unending Quest for Land: The Tale of Broken Constitutional Promises

Helena Alviar García

89 Texas L. Rev. 1895

PDF Document

Professor Alviar García examines land distribution in Colombia, arguing that changes in legal theory, interactions among legal regimes, and economic-development ideas account for land concentration despite the constitutional and legal provisions that weigh against this concentration.  She concludes that new forms of property, including environmentally-protected areas, collective property for indigenous groups, and informal possession, have met resistance from rigid, 19th century understandings of property.  Administrative and judicial hurdles and biases toward industrial development have inhibited broader distribution of land in Colombia.

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

Paola Bergallo

89 Texas L. Rev. 1611

PDF Document

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

PDF Document

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

PDF Document

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

PDF Document

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

PDF Document

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.