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.

A Matter of the Few: Dynamics of Constitutional Change in Chile, 1990-2010

Claudio A. Fuentes

89 Texas L. Rev. 1741

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Professor Fuentes, “explores the political dynamics responsible for transforming the rules of constitutional reform” in light of the recent democratic transformation of Chile.  He concludes that forward-looking decision-making, as one factor of many, can compel constitutional amendments that current literature about constitutional reform does not predict.

Existing literature insufficiently explains the politics of constitutional transformation in Latin America.  While other authors have pointed to the dominant influence of the executive branch as an explanation for differing results in Latin America, that is insufficient.  While executive dominance is certainly relevant given revolutions in Chile, the gradual decline in the democratic influence of the executive stands weighs against the prevailing wisdom that concerns about the long-term legitimacy of the political system would encourage prompt, thorough constitutional reforms.  Instead, democratic parties that supported the executive traded away individual constitutional protections of executive authority to preserve legitimacy and maintain an enduring transformation.

On the other hand, the Chilean case suggests strong support for inclusion as a causal mechanism of constitutional change.  As power was transferred to democratic elites from the executive, discontent with the extent of the transformation deepened.  New, more intense reform proposals in Chile’s decision-making suggest Chilean civil society continues to challenge its exclusion from the process and lays the foundation for further inquiry.

Reverse Erie and Texas Rule 202: The Federal Implications of Texas Pre-suit Discovery

Jeffrey Liang

89 Texas L. Rev. 1491

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Under current federal pleading standards for civil actions, Mr. Liang writes that “plaintiffs face a catch-22: they need information to reach discovery, but they need discovery to access information.”  He argues that Texas Rule of Civil Procedure 202 (Rule 202) may offer a solution.  Rule 202 allows plaintiffs to conduct pre-suit depositions in order to investigate potential claims.  Subsequently, the plaintiff could file suit in federal or state court, better positioned to meet pleading standards.

Only Texas grants broad pre-suit discovery for the investigation of potential claims, notes Liang.  This encourages forum shopping, which undermines the uniformity of federal pleading standards. But plaintiffs face two hurdles when using Rule 202 to investigate potential federal claims.  On the one hand, they must keep proceedings out of federal court, where such a proceeding will likely be dismissed.  On the other, they must prevent preemption in state court.

In discussing Rule 202 and its federal implications, Liang first provides an overview of its scope and role in Texas courts.  He discusses the goals of Rule 202, the mechanics of Rule 202 proceedings, and the role of pre-suit depositions in the federal system.  Next, Liang examines the obstacles presented by federal courts and the removability of Rule 202 proceedings.

He then assesses whether Rule 202 will be preempted in state court.  Even though generally not removable, a Rule 202 proceeding might be preempted through the Reverse Erie Doctrine.  This is a federal common law doctrine that applies when state courts adjudicate federal claims, and determines whether federal or state procedure applies in such instances.  Liang argues that this Doctrine will generally not preempt Rule 202, but preemption may result when Rule 202 petitions explicitly rely on federal claims to justify the burdens of pre-suit depositions.  Even though it is a state procedure, Rule 202 can have an outcome-determinative effect on cases in federal court.  Rule 202, concludes Liang, offers plaintiffs a powerful tool, and it presents courts with interesting questions of federalism, jurisdiction, and preemption.

Amicus Briefs and the Sherman Act: Why Antitrust Needs a New Deal

Rebecca Haw

89 Texas L. Rev. 1247

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Currently, the courts sort out the details of what practices and pricing schemes amount to unreasonably anticompetitive behavior, and the Supreme Court has the final word on the Sherman Act’s meaning.  Yet, the Sherman Act is so vague and broad that developing specific rules under it is more like constitutional interpretation than statutory interpretation.  However, Sherman Act interpretation is different from typical common law questions.  It requires economic evidence, which the Court cannot gather on its own, and technical economic savvy, which the Court similarly lacks.  Instead, the Court looks to amicus briefs for assistance, which have considerable influence over its opinions.  So, by relying heavily on arguments from nonparties, the Court acts more like an administrative agency soliciting third-party input.

In this Article, Haw argues that instead of requiring the Court to approximate agency decision-making in this way, an antitrust agency should be created and given the authority to make Sherman Act rules.  Such an agency would have the advantage of economic expertise and would be accountable according to judicial review.

Haw first summarizes the history of amicus participation and the justifications for it in technical areas of the law.  She then shows that in relying on amici, the Court acts similar to an agency.  Next, she details the similarities and important differences between the Court and a proper rulemaking agency.

In light of this contrast, Haw argues that the Court’s hybrid solution loses some of the benefits of Article III’s cases and controversies requirement, while failing to fully realize the benefits of APA rulemaking.  She then provides a recent pair of examples of the Court’s rulemaking in antitrust cases.  In these, the Court made mistakes partially attributable to reliance on amicus briefs for economics.

With this background, Haw proposes that an agency should instead be endowed with norm-creation authority over antitrust policy.  Where amicus briefs fail, she argues, administrative procedures are more likely to succeed.