Law's Majestic Equality-PoP Final

Articles
The Law’s Majestic Equality?

The Distributive Impact of Judicializing
Social and Economic Rights
Daniel M. Brinks and Varun Gauri
While many find cause for optimism about the use of law and rights for progressive ends, the academic literature has long been
skeptical that courts favor the poor. We show that, with the move toward a robust “new constitutionalism” of social and economic
rights, the assumptions underlying the skepticism do not always hold. Our theories must account for variation in the elite bias of law and
litigation. In particular, we need to pay closer attention to the broad, collective effects of legal mobilization, rather than focusing narrowly
on the litigants and the direct benefits they receive. We support the claim by showing that litigation pursued in legal contexts that create
the expectation of collective effects is more likely to avoid the potential anti-poor bias of courts. On the other hand, policy areas
dominated by individual litigation and individualized effects are more likely to experience regressive outcomes. Using data on social and
economic rights cases in four countries, we estimate the potential pro-poor impact of litigation by examining whether the poor are over-
or under-represented among the beneficiaries of litigation. We find that the impact of courts is positive and very much pro-poor in India
and South Africa, and slightly negative in Indonesia and Brazil. Overall, we challenge the tendency in the literature to focus on the direct
effects of litigation, find that the results of litigation are more positive for the poor than the conventional wisdom would lead us to expect,
and offer an explanation that accounts for part of the variation while raising a number of questions for future research.
A
s constitutions increasingly set out to protect social
Supplementary materials provided by the authors are and economic rights, it may be time to revisit Anatole
listed alongside a permanent link that precedes the France’s famous critique of the law: “Another source
references section. of pride, to be a citizen! For the poor it consists in . . .
laboring under the majestic equality of the laws, which
Daniel M. Brinks is Associate Professor of Political Science prohibit the rich and the poor alike from sleeping under
at the University of Texas at Austin, specializing in bridges, begging in the streets and stealing bread.” 1
Comparative Politics and Public Law (DBrinks@law. At the end of the nineteenth century it might have been
utexas.edu). His current project explores constitutional and easy to conclude that formal equality before the law
judicial transformations in Latin America since the 1970s. was just another way to protect and entrench privilege
Varun Gauri is Senior Economist with the Development while denying substantive justice. As Judge Richard
Research Group of the World Bank. His current research Posner famously said in reference to the United States
examines compliance with human rights court orders in Constitution, citizenship rights then were largely
developing countries. ([email protected]). The “a charter of negative rather than positive liberties.” 2
authors would like to thank Yanran Chen, Nara Pavão, As recently as the 1970s, Morton Horwitz could say
and Víctor Hernandez Huerta for providing excellent that the rule of law “creates formal equality . . . but it
research assistance on the distribution of beneficiaries. They promotes substantive inequality . . . . By promoting
are also grateful for the extensive, detailed, and insightful procedural justice it enables the shrewd, the calculating, and
feedback provided by the editor and the anonymous the wealthy to manipulate its forms to their advantage.”3
reviewers, who went far beyond the norm in helping us As a result of the law’s proceduralism, its lack of sub-
strengthen the piece, to Dan Brinks’ colleagues at the stantive notions of social justice and equality, and its
University of Texas, who provided valuable feedback and to perceived bias in favor of the already powerful, Horwitz
Varun Gauri’s colleagues at the World Bank. The project could legitimately question how it was possible that
enjoyed the support of the Nordic Trust Fund and the “a Man of the Left” could see the rule of law as an unqual-
Research Support Budget at the World Bank. The findings ified human good. In this view, the quest for substantive
and opinions expressed in this piece are those of the authors social justice will rarely run through constitutions or the law.
alone and do not necessarily reflect the views of the At the beginning of the twenty-first century, however,
World Bank. there have been changes in global constitutionalism that
doi:10.1017/S1537592714000887
© American Political Science Association 2014 June 2014 | Vol. 12/No. 2 375
Articles | The Law’s Majestic Equality?
seem explicitly designed to benefit the disadvantaged. The New Social Rights
These changes have led to an explosion of litigation and Constitutionalism
the judicialization of the politics of social provision that It may be true, as Posner argued, that “the men who
appear, on their face, to seek to expand the supply of wrote the [US] Bill of Rights were not concerned that
goods that are important to the poor, such as health care, government might do too little for the people but that
education, and social provision more generally. At this it might do too much to them,” but the vast majority of
point, then, it seems important to examine whether and new constitutions are moving from a purely negative
to what extent this change in the apparent nature of conception of rights to a more positive one. Social and
constitutionalism can actually deliver on its promise; and economic rights have been creeping into constitutions for
whether and to what extent the increasing involvement decades. David Law and Mila Versteeg present data
of courts in social policies actually improves matters for showing a dramatic increase in the number of civil
the poor. For simplicity, we call litigation that dispro- and political rights, as well as social and economic rights
portionately benefits the poor “progressive,” while if the expressly protected in constitutional texts, since the
poor are underrepresented among beneficiaries, we call 1960s.5 The trend begins with a set of post-colonial con-
the litigation “regressive.” We use here the results of stitutions, but the sharpest increase—especially in the
a multi-country survey of social and economic rights
protection of social and economic rights—comes after the
(SER) litigation to explore the extent to which the poor benefit
collapse of the Soviet Union in 1990. The new constitu-
from this activity. Our analysis suggests that the literature so far
tionalism is sufficiently preoccupied with rights, over
has been far too focused on the direct, individual effects of
and against questions of structure and procedure, that it
litigation to adequately gauge its impact on the overall
can be described as rights constitutionalism and, for
distribution of the gains. If we better theorize the impact of
much of the developing world in particular, social rights
judicial interventions on SER, expanding our vision beyond
constitutionalism.6
the immediate direct effects of those interventions, we may
David Bilchitz, for example, contrasts the Western
well find that the SER judicialization that has become a feature
“tradition of focusing on civil and political rights, and the
of twenty-first century constitutionalism is less biased toward
the middle class than many have suggested. ideal of ‘liberty,’” with the new constitutions of the Global
We outline a conceptual, methodological and theoret- South. For the latter, he writes, “matters of economic
ical approach designed to better understand the politics of distributive justice . . . are central.”7 The new constitutions
the new social rights constitutionalism. We first describe are, in effect, seeking to push beyond a model of law and
the contours of the new constitutionalism and the legal constitutions that protects mainly the freedom to be
mobilization it has triggered and outline the theoretical secure in one’s person and property—should one happen
reasons to be skeptical or optimistic about the distributive to own any. They typically include a more robust set of
effects of legal mobilization, as well as the gaps in the obligations on the government to create the conditions
empirical research on these effects. In the main theoretical for substantive equality, a dignified existence, and the
section that follows we lay out in some detail the effective exercise of democratic citizenship. In places as
distinction between individual and collective effects that disparate as the post-Soviet countries, South Africa,
animates much of our empirical discussion, and explain Brazil, and Colombia, constitutions at least purport to
why the expectation of collective effects changes the set up entitlements for the poor that go far beyond the
litigant calculus in a way that should lead to more pro- mere freedom to pursue one’s interests unhindered.
poor outcomes. The subsequent empirical section relies Under these new constitutions, citizenship now means
primarily on a tabulation of the beneficiaries of SE rights that “the rich and the poor alike” can claim guarantees of
mobilization in Brazil, India, Indonesia, and South adequate food, health care, education, a minimum standard
Africa, a summary discussion of Nigeria, and on narrative of living, and a decent place to live, turning France’s
descriptions of the motivations and goals of the main mordant, iconic statement on its head.
actors involved in that mobilization.4 We then summa- Nor have these rights remained mere parchment
rize the findings and implications, before turning to promises. Progressive activists around the world have
a conclusion that raises questions for further research and seized on the judicial enforcement of social and
develops the theoretical, normative, and practical impli- economic rights as a powerful new tool in the politics
cations of social rights constitutionalism, as practiced of social provision, a change that is reflected in the
today. Our main goal here is to lay bare some of the explosion of academic interest in the “judicialization
assumptions on which most distributive critiques of SE of politics.” 8 Samuel Moyn has argued, not necessarily
rights litigation are based, suggest when they might or with approval, that human rights have become “The Last
might not hold, and outline the beginnings of a research Utopia”—one of the few remaining political ideals that
agenda on the progressive potential of litigation and promise a more just society.9 When the Thatcher and
enforceable social and economic rights. Reagan revolutions and the Washington Consensus brought
376 Perspectives on Politics

welfare states under attack in much of the world, when the housing for the homeless demonstrates how vast the
utopian aspirations of the Second World ended with the expectations now are.
fall of the Berlin Wall, when neoliberal orthodoxy Given the importance of rights constitutionalism to
governed the ideological landscape, the language of rights the distribution of state resources, welfare state politics,
enshrined in constitutions and treaties seemed to offer and the aspirations of the left in many countries, it is all
some leverage for protecting and extending social pro- the more urgent to return to a slightly modified version
vision to the poor, especially through litigation.10 Social of the question Horwitz posed forty years ago: Is the
rights constitutionalism, and its judicialization, expanded constitutionalization and judicialization of SE rights an
the political opportunity structure for the left, which unalloyed human good? Or does it remain the case that
otherwise found itself frozen out of the debate about the the law “enables the shrewd, the calculating and the
proper role of the state in moderating the effects of the wealthy to manipulate its forms to their own advantage,”
market and providing material goods. thus promoting substantive inequality in the end?20 It is
Twenty or thirty years into this process, judicial inter- true, of course, that constitutional aspirations may be
ventions on behalf of SE rights cannot be dismissed as pursued through many means that have nothing to do
tangential to the politics of welfare. In one Brazilian state with courts and law, and there is perhaps less controversy
alone, Rio Grande do Sul, right to health cases grew from about the value of these approaches, although it is possible
1,126 in 2002 to 17,025 in 2009; that same year the that the language of rights constrains the politics of
highest non-constitutional court in Brazil heard nearly provision in different ways that are worth exploring
six thousand such cases,11 resulting in large percentages empirically.21 Here, however, we limit our view to the
of state medication budgets being allocated by courts.12 effects of judicial interventions, which play a large role
The Indonesian Constitutional Court issued a series of in many strategies to make SER effective.
opinions from 2004–2006 that doubled budget alloca- The literature has presented many reasons to be
tions to the education sector—redirecting about five skeptical of the law as an instrument for the weak against
percent of the entire national budget.13 In 2004 the South the powerful. Economic, social, and procedural barriers
African Constitutional Court required a recalcitrant prevent the great majority of poor people from making
Mbeki government to launch a major program to prevent claims in courts;22 accumulated experience gives the rich
the transmission of HIV from mothers to infants, likely and the powerful advantages in the courtroom;23 patterns
averting tens of thousands of HIV infections.14 In India, of judicial recruitment and retention, which reflect prevail-
the courts have issued numerous consequential rulings on ing configurations of political power, incline the attitudes
the constitutional rights to health care, education, housing, and calculations of judges toward the status quo;24 and
the environment, nutrition, and labor.15 Even in Russia without the active support of elected officials, opponents
people turn to the courts by the hundreds of thousands in can easily limit and undermine the implementation of any
efforts to secure pensions.16 The phenomenon is wide- rulings that might challenge that status quo.25 As Ran
spread, deeply affecting health care, education, and even Hirschl has argued, the constitutionalization of rights may
that most fundamental of classical liberal rights, the right to even be an attempt by outgoing elites to protect their
property, in many countries around the world.17 interests by limiting the ability of majorities to enact more
Of course, we should not be surprised to find that redistributive legislation.26 For all these reasons, and in
courts have not managed anywhere to create a new utopia spite of Brown v. Board of Education and other famous
for the poor. Even what is probably the most celebrated cases that appear to suggest the contrary, it has long
court in the world in this respect, the South African seemed unreasonable to expect that the courts will con-
Constitutional Court, has come under fire recently for sistently produce outcomes that significantly favor the
failing “to take seriously and to operationalize within its underprivileged.27
judgments the issue of structural poverty.”18 South African Perhaps the dominant account that places rights at the
courts have also been less than successful in dealing with center of improving the material conditions of the less
problems of land redistribution or sexual violence. Even in advantaged is T.H. Marshall’s classic story of the evolu-
dealing with SER, courts have sometimes turned them tion of civil, political, and ultimately social citizenship.28
from positive entitlements into purely negative rights. Similarly, the western liberal left has often made civil
Perhaps the most striking example of this is Victoria (City) liberties a central plank in its platform, at least in part
v. Adams,19 in which the courts of British Columbia to ensure equal access to politics, the ability to associate,
determined, under the right to housing, that the city and to demand outcomes more favorable to previously
government could not prevent homeless people from excluded groups. In this account, however, classic liberal
putting up temporary shelters on public property, given rights merely create the conditions for an extra-legal,
the absence of adequate public shelter elsewhere. But the extra-constitutional politics of social citizenship. In the
very fact that courts can be criticized for failing to address liberal model, judges are neutral umpires, protecting the
structural poverty adequately or improve the lack of playing field on which the politics are worked out, and
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rights are (in theory) relatively neutral as well, agnostic about part the expected reach of the effect of the cases that
the ultimate distributional outcomes the political struggle dominate a particular litigation environment that deter-
might produce. The realization of social and economic mines whether the aggregate effects ultimately favor the
rights is then a consequence of liberal rights plus mass social- poor or the better off. When potential litigants expect that
democratic politics. In social rights constitutionalism, cases seeking social and economic rights can and will have
however, the politics of social and economic demands are effects beyond the litigants themselves, it is more likely that
prior to and embedded in the constitutional structure. This litigation will be funded by third parties, and undertaken
almost inevitably, although with the important intermedi- as a mechanism to extend greater benefits to the poor, even
ation of legal mobilization, shifts some of the responsibility benefits that are very low cost, such as vaccines, or very
for working out the substantive details of social provision, diffuse, such as clean air. When litigation is expected to have
and some of the work of monitoring compliance, to judges. purely individual effects, it will target higher-end goods, be
Research on the real-world effects of judicially enforced carried out by better-off litigants, and have greater potential
social rights constitutionalism is remarkably thin. The to further skew the distribution of state goods toward the
literature often includes cautionary notes about its better off.
possibly negative effects, but little empirical evidence. Widening the lens is also crucial because many cri-
Researchers are beginning to focus on questions of tiques of litigation, while they have a nicely contextual
compliance,29 but compliance and impact, though related, and political vision of how courts work, often rest on
are not the same. César Rodríguez Garavito’s interesting a thin notion of what law is and how it works. Horwitz’s
work addresses impact,30 but he focuses primarily on concern about the proceduralism and formal equality of the
whether there has been impact, as does Gerald Rosenberg’s rule of law rests on a nineteenth-century vision of the
classic work,31 not on who benefits from impact. Recent content of the law. While it may fit the US Constitution,36
research exploring this question has focused on health it is at odds with the more robust ideas of substantive justice
rights litigation, mostly claims for particular medications or embodied in twenty-first century constitutionalism—at
treatment, and mostly in Brazil,32 questioning whether health least the constitutionalism emerging in middle-income
rights litigation skews policy in favor of the better-off.33 countries.37 And the structural critiques of public interest
Even in Colombia, David Landau argues, the dominant litigation—elite biases in access, courtroom advantage, judi-
models of SE rights enforcement “have a very pronounced cial preferences and compliance—depend partly on a vision
tilt towards higher income groups; they are unlikely to do of the law as a command and control mechanism, triggered
much for poorer citizens.”34 by well-resourced litigants and operated by judges. In this
Thus far, the research on who wins and who loses has view, the effects of litigation are mostly reduced to whether
taken the most direct approach, identifying the actual judicially ordered relief reached the litigants in question—
remedies directly required by the courts, or conducting whether the cases had direct (individual) effects.
a survey of people receiving benefits by court order in an Since at least the 1970s, however, scholars have argued
effort to ascertain the socio-economic profile of the class that law is more than a set of “operative controls” that
of people who litigate successfully and capture the direct people either follow or fail to follow.38 Law and litigation
effects of litigation in the individual case.35 Clearly, this as social practices and political resources, scholars have
is where it is easiest to measure the effects of litigation, just argued, have wide ranging, systemic effects that extend far
as it is easiest to observe the socio-economic characteristics beyond the cases and litigants themselves.39 Indeed,
of actual litigants. But, as we will see, it seems likely that scholars like Michael McCann would argue, the “indirect
the area under the proverbial street lamp is precisely where effects and uses of litigation may be the most important of
effects are likely to be both most regressive and least important all for political struggles by most social movements.”40
in the overall public policy context—least important simply More recently, Mariana Mota Prado has argued that, when
because the number of people and resources affected by considering the effects of SER litigation, we need to be
collective effects dwarfs that of individual effects, and most much more sensitive to collective effects than we have been
regressive because opportunity costs will ensure that, when so far.41 These insights suggest that SER cases can be
cases benefit both litigants and non-litigants, the litigants arrayed on a continuum based on the expected reach of
are likely to be among the most privileged of all potential their effects—from those with effects limited to one or two
beneficiaries. As always, but especially here, the choice of individual litigants to those with virtually universal effects.
research design is highly likely to determine the findings. Many taxonomies of effects have been offered, and dif-
ferent classifications are often useful for different research
Understanding the Individual and goals. We adopt here a very simple framework, classifying
Collective Effects of Judicialization cases as either individual or collective depending on
In what follows, we argue that focusing narrowly on the whether they are expected to produce purely individual
direct, individual effects of cases biases the findings in or more collective effects. At one end of the spectrum are
favor of a more regressive conclusion. Indeed, it is in large cases with expected effects that are essentially limited to

individual litigants. These cases, which we refer to as We have mentioned already the striking negative-rights
individual cases, seek to capture individual goods, whether approach to housing rights taken in Victoria (City)
private or from a common pool, for the litigants and no v. Adams. In that case, the courts of British Columbia
one else—a particular plaintiff sues for access to a particular essentially sanctioned the right to sleep in a cardboard
course of medication or for payment for a particular box (if you have one) in a public park (if there is one); but
personal service, and for no other reason. On the opposite they created no affirmative duties upon the state to ensure
end of the spectrum are cases that are expected to produce that anyone has anything like adequate shelter. In an
collective effects—that is, effects for a group that may not equally striking example of systemic collective effects,
even be represented in the courtroom. however, public authorities responded to this narrow
Cases produce collective effects through two channels. decision in part by creating more public shelters for the
First, cases can have collective effects directly, when homeless, even though the courts did not order them to
litigants sue for, and court orders directly require, the do so, simply to keep their parks free of squatters. What is
provision of inherently collective goods: the creation of interesting about that case for our purposes is not whether it
common pool or club goods, as when a lawsuit seeks the can be categorized as positive or negative, but whether it was
creation a new AIDS program; and occasionally the expected to produce wide effects, either through an order for
safeguarding of public goods, as when a lawsuit seeks a collective good or systemically, and who it ultimately
the protection of clean air or water, in order to protect benefited, whether the poor or the better off.
health. We refer to these as direct collective effects. Second, Because they depend on extant characteristics of the
cases might produce collective effects when judicial inter- legal and political context, collective effects may be more
ventions in a policy area modify the incentive structure and or less predictable by groups seeking to produce social
bargaining power of key actors in that field, even if they do change. Sometimes SER litigants will request, and judges
not directly order the creation of collective goods. This is will directly order, the provision of collective goods—e.g.,
what we refer to as systemic collective effects. Examples of the production of an “orphan” vaccine by the government,
systemic collective effects are the transformations in labor as in the Viceconte case in Argentina.42 Whether litigants
rights negotiations produced by changes in the law, as in can bring these cases depends on whether the legal system
McCann’s work; decisions taken in anticipation of litiga- in question allows for them, and whether the judges are
tion, such as using safer playground equipment or training willing to issue orders that are often perceived as treading
police to avoid violence, in Epp’s work; and the decision by on legislative territory. Civil law systems often contemplate
Brazilian public health bureaucrats to extend court-ordered the possibility of abstract constitutional challenges in
remedies to all similarly-situated persons in order to avoid which the decisions by their very terms have universal
the costs of litigation or simply to equalize provision, in our application—each case either strikes or upholds the law in
own work. question, affecting rights for all persons regulated by the
It is likely true that virtually all cases brought for an statute. The Indian Public Interest Litigation is a sort of
individual, private purpose have some collective effects. public interest class action that was created by judicial
Our argument, however, hinges on the intent of the fiat;43 the Ação Civil Pública, a similar device contemplated
parties, and so we classify cases that do not explicitly seek in Brazil’s 1988 constitution, empowers either the public
collective goods as collective only when they are undertaken prosecutors or certain public interest organizations to file
specifically for their expected systemic effects, as in the actions asserting collective or diffuse interests. In all these
classic model of landmark public interest litigation. The cases the directly affected individuals never have to appear
South African health cases fall in this category, as would before a court.
Brown v. Board of Education, Victoria (City) v. Adams, At other times features of the legal system in question
and many other cases that are brought in order to set an automatically assign systemic effects. Systems with a strong
important precedent, even though by their terms they are norm of following judicial precedent (what is known as
only brought on behalf of particular plaintiffs. In other stare decisis), for instance, implicitly make every case a
words, nominally individual cases are brought as collective collective one, creating a rule that is legally binding on all
cases when they are pursued in order to, and expected to, similarly situated people. Thus many social movements
generate systemic effects. have as their primary goal not a victory in the individual case
We should note here that SER are often characterized but the creation of precedent to produce broad systemic
as positive rights, and SER litigation is typically imagined change. The conventional wisdom is that common law
to aim at securing collective or individual goods at gov- systems have the edge in this regard, although the extent to
ernment expense. In fact, SER cases can often be much which a given system actually responds to precedent is really
more akin to traditional negative-rights cases (and civil an empirical question, and largely driven by a politics of
and political cases much more like positive-rights cases) enforcement and compliance, as the vast literature on law
than this model would suggest, and for that reason and social change has emphasized. Because some civil law
we avoid relying on the positive/negative distinction. countries have a de facto system of precedent, the extent to
June 2014 | Vol. 12/No. 2 379

which activists feel they can rely on precedent to change the movements may very well litigate for individually small
law will vary. The CELS in Argentina, for example, focuses benefits on behalf of the poor, if they can engage in
on strategic litigation precisely because they expect impor- “impact litigation” rather than litigating on behalf of each
tant cases to set precedents and change the law. In Brazil, needy person, one at a time.
in contrast, activists expect very little rule change from Schematically, in the absence of (expected) collective
the courts. effects, citizen i will litigate only if the expected individual
In the latter environments, systemic effects arise from benefits exceed the expected individual costs of litigation,
individual cases much more unpredictably. There is still or E(bi) – E(ci) . 0. This means that, first, because of the
the potential for systemic collective effects in Brazil, where high opportunity costs of litigation for the poor, the rich
public health officials will sometimes extend the same will be more likely to litigate unless E(ci) 0. But more
treatment to non-litigants that they were compelled to importantly, if E(ci) .. 0, the expected benefits to the
extend to litigants, even though everyone agrees judicial litigant must be very high. That rules out not only litigation
decisions are binding only on the immediate parties to the for low cost inputs and interventions, but also litigation
case. Thus, even in Brazil, AIDS activists brought cases for public goods or against “public bads” (e.g., dirty
with the goal, ultimately, of changing treatment for all water, bad air) whose harms are often only demonstrable
HIV positive people. But the road to generalizing the effect at the population level, and in a probabilistic sense.
was not as clear as it would have been in places with norms Adding collective benefits from positive-rights litigation
of stare decisis, like the United States or South Africa. for collective goods radically changes the equation,
As a result, the evidence suggests that later generations justifying even relatively costly litigation for relatively
of health-rights plaintiffs in Brazil are primarily motivated low cost individual benefits that can be multiplied by the
by the individual effects they can capture for themselves.44 entire population of similarly situated claimants.
Collective systemic effects in Brazil, however real, are less This suggests that an emphasis on litigation with col-
predictable in advance of the litigation and are typically not lective effects is likely to have a larger impact on the share
a part of the litigant calculus leading to a lawsuit. of poor beneficiaries than lowering barriers to courts: even
The progressive potential of SE rights litigation hinges when c is very low, it is still high enough (in the form of
on the strategic calculus of potential litigants, who must opportunity costs) that, although poor people will litigate,
decide whether it is worth litigating for a particular policy they will do so for relatively expensive goods and services.
good. The argument draws on the notion of opportunity We agree with the claim that lowering barriers to access
structure frameworks for analyzing when and where will make it somewhat easier for the poor to litigate; and
social movements concentrate their efforts, a notion that one can find instances in which the poor litigate en masse.46
has been explicitly applied to litigation by Siri Gloppen, But even in those instances, they are litigating for relatively
Bruce Wilson, and others, as well as in our own work.45 high-value benefits. In contrast, the beneficiaries of collec-
When benefits are limited to litigants, individuals must tive SE rights litigation can be poor even when access is
generally raise the resources to litigate, and the individual costly; and the benefits sought can be individually inex-
benefit being demanded must generally exceed the full pensive, so long as decisions have broad collective effects.
cost of litigation, so litigation will tend to focus on higher- The expectation of broad collective effects should change
end goods and services, and benefits are more likely to skew the composition of SE rights litigation so that it is more
toward the better off. Moreover, if systemic effects are likely to involve less-expensive goods and services that can
unlikely or unpredictable, social movements will not focus be provided to many more people, as well as more public,
their efforts on litigation, and thus groups seeking to non-excludable goods.
improve the lot of the underprivileged are unlikely to This analysis of collective effects should have a bearing,
seize on courts as the venue. On the other hand, if benefits then, on who benefits from litigation. But this may be
are expected to generalize beyond actual litigants, then contingent on the politics of legal mobilization in a given
those who cannot afford to (and do not) litigate can still jurisdiction. If only the privileged litigate, and if they
benefit, and the aggregate benefit of even very low-cost litigate primarily for the sorts of things only the privileged
interventions can justify relatively expensive (in practice, care about—for club goods, in other words, in clubs that
often third party-funded) litigation. For example, Treatment exclude the poor, like better public university education in
Action Campaign, a South African NGO, mounted an poor and unequal countries, or hospitals colonized by the
expensive and complicated litigation and activism campaign upper classes because of their geographic location—then
to require the government to offer pregnant women a $5.00 the effects, though collective, are likely also to be regressive.
dose of Nevirapine, to prevent mother-to-child transmission The question, therefore, is whether the ripples caused by the
of HIV. For any single individual, or even for a charitable collective effects simply magnify the initial bias or whether
enterprise, it would be irrational to engage with the the collective effects of litigation can ameliorate that initial
machinery of courts to secure something of such low cost. bias. The answer to this is not obvious, and we do not
But, as in this case, public interest NGOs and other social purport to offer a full answer here, but our findings at

minimum caution against a facile equation of unequal politics and comparative legal analyses must become more
access to justice with unequal benefits from formal rights. open to each other. While this is rapidly changing, it is
Furthermore, we do not mean to suggest by this argu- still true that beyond the relatively few people who focus
ment that we could magically create a politics of pro- on judicial behavior, the comparative politics literature
gressive, twenty-first century social rights constitutionalism takes too little account of legal processes, and has a rela-
simply by formally assigning to judicial decisions collective tively unsophisticated understanding of how those pro-
effects. The literature has amply established that any cesses actually operate. This literature could benefit from
successful project seeking to realize the promises embedded the insights of scholars of law and politics, both in the
in social and economic rights depends upon a robust set of United States and elsewhere. By the same token, much of
political, organizational and financial resources. That is the the literature on law, even that which is grounded in the
basic conclusion of our prior research, and nothing here socio-legal literature, is too innocent of the vast compar-
contradicts that conclusion.47 Social mobilization capacity ative politics literature, which provides a more nuanced
determines the success of what we have previously understanding of the political and institutional context in
identified as the four stages of the legalization of policy— which legal institutions operate, and could benefit from
from the initial mobilization and filing of cases, to gaining a more sophisticated reading of that literature.
the support of the courts, to matters of compliance and,
ultimately, the close engagement with the implementation The Distribution of the Benefits of
process that distinguishes transformative projects from ones Rights Litigation in Five Countries
that turn out to be a mirage. Both the magnitude and the The immediate problem confronting comparative research
distribution of the actual benefits from any such strategy on the differential effects of policy-oriented legal mobiliza-
will, of course, depend on the conformation of the political tion is the absolute lack of comparable, cross-country data
structures that undergird the entire enterprise. The possi- on the benefits of legal strategies, let alone on the distri-
bility of collective effects interacts with the politics of legal bution of those benefits. In order to address this and other
mobilization by creating stronger incentives both to litigate questions related to SE rights litigation, we carried out
precedent-setting and collective-goods cases and to use detailed studies of the judicial enforcement of SE rights
court orders in political mobilization and implementa- in Brazil, India, Indonesia, Nigeria, and South Africa.51
tion monitoring. We used local teams from each of these countries, under our
If our claim is true, it has a clear and somewhat coun- supervision, to carry out a systematic cross-national survey
terintuitive policy implication. In the more cautionary, of SE rights litigation, including descriptions of the cases
juriskeptical academic literature, judges are often urged filed in each country, the effect of those cases on public
to be wary of interventions on behalf of positive rights, policies, and estimates of the numbers of people benefiting
and especially of ordering broad public policy-like effects. from constitutional health and education rights cases.
The fear is that they will lose legitimacy by violating For this article, we took that data as the starting point
the separation of powers,48 and simply make matters and carried out additional studies of the beneficiaries,
worse by exceeding the bounds of their competence and using secondary sources and interviews. The results of
capabilities.49 But if they heed this advice, they may well this second-stage investigation (including Nigeria, only
be encouraging a more regressive form of judicialization. summarily discussed here) are detailed in an on-line
An analysis of the collective effects of their rulings may appendix that lays out the data, our calculations, and
complicate the analysis considerably. If we find that our assumptions.52
systemic effects are positive—say because the added judicial We were occasionally forced by the lack of data to rely
scrutiny of executive decision-making encourages the gov- on rather strong assumptions about the effects of the
ernment to address felt needs that have somehow escaped litigation. But where our data are weaker—as in the effects
the political process—or that collective judgments can create of the Indian or Indonesian cases on education—we
the conditions for better policy-making around a particular made dramatically conservative assumptions, using a
issue,50 we might encourage justices to think in a more small fraction of the potentially affected schoolchildren.
policy-conscious way, rather than narrowing their vision to In the Indonesian case in particular, we assumed that
the litigants standing before them in the courtroom. To the the effects of more spending on education, and thus the
extent their legitimacy is tied to a consequentalist analysis benefits of either higher quality or lower cost public
of the effects of litigation rather than to traditional notions education, were distributed across all existing users of
of separation of powers, a more conscious attention to public education, rather than focused on the poor by
collective effects might enhance rather than detract from bringing new children into the system. Ultimately, we
their legitimacy. are in every case very confident of the policy domains in
The broader point, which we will not develop in any which the benefits can be found, and in selective cases
detail but which becomes self-evident in light of our dis- somewhat less confident of the socio-economic composition
cussion, is that we believe the literatures in comparative of the beneficiaries in each policy domain. In the latter we
June 2014 | Vol. 12/No. 2 381

have made conservative assumptions, to ensure we do litigation relative to their share of the population—in
not overstate the potential benefit to the poor. In any other words, whether more or less than 40 percent of the
event, the analysis highlights the policy areas affected, beneficiaries fall below the fortieth income percentile.
and the reader ultimately can judge whether the nature Finally, in calculating the distribution of benefits, we
of these policy areas justifies concluding that litigation is discount cases with partial or no implementation, and we
an elite-centric enterprise. account for the likelihood that the poor will not receive even
The country teams followed comparable but not iden- the collective benefits of litigation by including only the
tical strategies. In Indonesia they identified all cases relating population that has access to the mechanisms that dispense
to the rights to health care and education. In the absence the goods in question—schools, hospitals, blood banks, etc.
of systematic compilations of decisions, they used archival For each subset of cases, we examine whether the
research in the various courts, and interviewed the decisions’ effects are expected to be narrow and tied to the
principal legal NGOs. In India and South Africa the initial litigants, or whether the impact is the product of
teams used electronic searches to identify all reported broader, more collective decisions. In general, South Africa
cases from appellate courts on up. In Brazil, where the and India are the two countries that experienced the most
number of cases was vastly higher, they searched electronic collective litigation. In both of these countries high court
databases for appellate and higher courts in a cross-section decisions strongly guide both lower courts and public
of subnational units including states at both ends of officials. Indian courts, moreover, rely heavily on Public
the socio-economic spectrum and extrapolated from this Interest Litigation, a legal device that encourages individuals
sample to produce nationally-comparable numbers. and NGOs to speak on behalf of otherwise unrepresented
Sampling differences are not likely to affect the conclu- interests, encourage fundamental rights litigation, and are
sions we reach here. In the first place, our conclusions do not shy about addressing regulatory issues, which are col-
not depend on having identified every last beneficiary in lective by definition. These countries should have the most
each country. We do not aggregate and average across pro-poor outcomes, with litigation targeting lower-cost
countries, so our conclusions are not affected so long as goods and policy areas that serve more people. At the oppo-
we have identified representative beneficiaries in each site end of the spectrum, cases in Brazil are largely pursued
country. We do aggregate across policy areas within for their individualized benefits, and are expected by
countries, but here we applied the same sampling litigants to have purely individual effects in the short term,
techniques, and we adjusted for population size where and thus should focus on more expensive goods and be less
necessary to arrive at comparable figures. pro-poor. To look at within-country variation we also
These countries will not necessarily give us a representa- examine Brazilian education cases, which rely more on the
tive sample of SE rights litigation across the world—there Ação Civil Pública, a legal device used to challenge broad
are no post-Soviet cases, no advanced industrial democra- public policies, and which should, therefore, have a higher
cies, no cases at the bottom of the global income spectrum. share of disadvantaged beneficiaries.
But they can fairly be called representative of the We have two additional cases on which to draw,
middle-income cases (Brazil and South Africa are upper Nigeria and Indonesia, but in neither of these cases has
middle-income and Indonesia and India are lower middle- litigation had a very significant impact across policy areas.
income economies) where social rights constitutionalism The reasons for their limited impact are fully discussed in
has been most important and thus where we focus our our other work.53 Here we focus more narrowly on the
attention. More importantly, these countries, for different distribution of whatever impact there is, so Nigeria is
reasons, offer both cross-national and within-country discussed only in the tables and the online Appendix, while
variation in the extent to which litigants should expect the discussion of Indonesia focuses on the one set of cases
their cases to have collective effects. In India, a common that had a discernible impact.
law country, and in South Africa, which blends common
and civil law traditions, cases have broad precedential Brazil
effects, simply by virtue of that tradition. Meanwhile, in By far the most common form of litigation in Brazil
the civil law countries (Brazil and Indonesia), individual consists of individual actions in which litigants sue for
cases are expected to have individual effects, but there is the medical services and medications. Our survey identified
possibility of filing cases with primarily and self-consciously about eight thousand cases in four states (Rio de Janeiro,
collective effects. The Ação Civil Pública, in Brazil, and the Rio Grande do Sul, Bahia, and Goias); of these, over 94
abstract constitutional challenge, in Indonesia, for instance, percent were individual actions for health-related goods
both figure among the cases in our sample. and services. Some 66 percent of these were demands
We estimate the regressive or progressive impact of for state-funded medications. Essentially all the cases are
litigation by examining whether the poor, defined in nearly individual demands to capture individual goods from a
all cases as those in the bottom two income quintiles, are common pool. All the research on Brazil makes it clear
over- or under-represented among the beneficiaries of that these cases are undertaken for their individual effects,

and that judges disfavor health rights cases that are meant public health system, about 36 percent of whom are
to have collective effects. While even this individual liti- underprivileged. Either way, this type of litigation, driven
gation has systemic effects, the evidence suggests that these by individual incentives, produces more regressive outcomes
effects are mostly unexpected and unintended by the than the collective litigation we see in other countries.
litigants. Still, our and other research shows that after Prado has recently argued that certain systemic effects of the
a number of cases for a particular remedy, the states stop Brazilian litigation may make this pattern less regressive
opposing the claims and begin supplying the medication than we think;57 more detailed analysis would be needed to
through the public health system.54 This was true, for reach a final conclusion on this question, but for now we
instance, for HIV/AIDS treatments. may accept our findings as something like an upper-bound
Thus, in Brazil, the litigation landscape is dominated estimate of its regressive effects.
by individual litigation. The largely litigant-unintended Overall, the distribution of beneficiaries in Brazil skews
collective effects, when they occur, produce club upward slightly, relative to the population. This confirms
goods—goods that, while not universally enjoyed, are our expectation that litigation undertaken for individual
shared by the entire benefitted class and (typically) are not benefits is regressive, though perhaps not by a great
meaningfully depleted by any individual user. The key margin—and it suggests that whether judges and litigants
question in gauging the progressive effects of this litigation intend it or not, litigation is likely to have systemic effects.
is who belongs to the club. If the litigation targets club Health-rights litigation in Brazil is hardly a phenomenon
goods that are enjoyed predominantly by the better off, limited to or dominated by “elites,” however you may
then its collective effects essentially re-focus the state on define them, but the distribution of benefits of litigation is
“rich people’s problems”—and the greater these effects, less pro-poor than the distribution through the general
the more regressive the impact of litigation on the distri- public health system (which serves a population that is
bution of health care in Brazil. To estimate the socio- about 43 percent poor)58 by about seven percentage
economic composition of the members of the club, we points. If the individual litigation model continues to
assumed that the beneficiaries roughly reflected the dis- dominate and to grow, distributing ever more resources
tribution of these diseases as diagnosed. By identifying who through litigation, the distribution of goods through the
is treated for the diseases that are the subject of litigation, public health system may shift more and more toward the
we can evaluate the extent to which health rights litigation better off. Moreover, others have found, again as expected,
is in fact simply drawing the state’s attention to “rich that this litigation tends to focus on high-cost medications,
people’s illnesses.” Table 1 summarizes the results of our so that even in the categories in which the poor are sig-
investigation for Brazil’s health cases.55 nificantly over-represented, such as osteoporosis, litigation
Note that our analysis allows us to set the outside targets very expensive treatments.59
bounds of the outcome of interest when litigation is The picture was quite different in the less voluminous
pursued as an individual enterprise: if all the effects are right-to-education litigation. In education, our earlier survey
direct individual effects, benefits are limited to the litigant finds that all of the impact is due to cases that affect the
population, which others have identified through litigant regulatory structure around education. These cases are
surveys, and placed at about 40 percent underprivileged;56 intended as collective cases, and the benefits by definition
if collective effects fully generalize to those similarly situated, extend to all those who use the service in question. They
then the beneficiaries include all Brazilians who share an are not, by and large, positive-rights cases in the sense
illness with the litigants and are treated through the that they do not require the state to provide more
Table 1
Distributive Impact of Health Rights Litigation, Brazil
Litigation Stream Percent underprivileged N underprivileged Total N
HIV/AIDS 32 209,057 660,000
Hepatitis 30 45,000 150,000
Diabetes 14 96,180 687,000
Cancer 26 19,000 72,200
Hypertension 19 138,624 729,600
Osteoporosis 50 1,213,150 2,426,300
OTC goods 43 1,174 2,731
Terms of private insurance 32 12,765 40,522
Total 36 1,734,950 4,768,353
June 2014 | Vol. 12/No. 2 383

services, although some of the cases do fit this category. The overall results for South Africa, in keeping with
In this policy area, then, we identified the effects of cases our expectations, were more pro-poor than those in
relating to private schools (for example, allowing legislative Brazil: more than eighty percent of all those benefited
limits on tuition increases) and public schools (mostly, by these decisions fit even a fairly narrow definition of
easing procedural restrictions on hiring new teachers), “underprivileged,” compared to the slightly negative effect
estimated the number of beneficiaries in each, and applied of litigation in Brazil. If we assume that the South African
the known demographics of public and private school “underprivileged” come from the bottom forty income
students to these findings. According to the Brazilian percentiles (in fact, they were probably even less “privileged”
statistical service60 about 80 percent of public school than that), then South African SE litigation was twice
students, and 27 percent of private school students were as pro-poor as the Brazilian model. We summarize our
“underprivileged.”61 Our survey found about 40,000 calculations in table 2.
beneficiaries in public schools and only 400 in private Note that the findings for South Africa are significantly
ones. Applying the demographics of education to this driven by the fact that HIV/AIDS, the object of most of
ratio, at least 78 percent of the beneficiaries of education the significant cases, has a much higher prevalence among
litigation came from the lower two income quintiles, so poor South Africans. Still, the results support our basic
that the poor were overrepresented in Brazil’s more claim—in collective litigation-friendly South Africa, it
collective right-to-education litigation by about 2 to 1. makes sense to litigate even the relatively low-cost single
dose needed to prevent mother-to-child transmission of
South Africa HIV.
South Africa’s post-apartheid constitution of 1996 explicitly
includes rights to housing, health care, food and water, India
education, and social security. Our review of cases at the Starting in the early 1980s, India’s Supreme Court began
level of the High Court and above found twenty-four cases to enforce economic and social rights. But perhaps as
dealing with health and education rights. In contrast to important was a significant opening to collective cases that
Brazil, and as expected in a common law jurisdiction, South occurred in the same era: the Indian courts established
Africa showed not only a markedly smaller number of cases, Public Interest Litigation, in which applicants need not
but also a set of cases primarily targeting collective effects on demonstrate that they themselves have suffered harm in
public policy, rather than individual impact on litigants. order to address a public policy issue; the courts lowered
This means that, even more than for Brazil, the demo- the standard for a petition, so that even letters to the courts
graphics of the actual SE rights litigants in South Africa are could qualify; and the Supreme Court began to examine
of trivial importance, compared to the demographics of the social concerns on its own initiative. Ninety-nine percent
relevant policy area beneficiaries—we are less interested in of all the beneficiaries we identified in India were the result
the few named plaintiffs in the Treatment Action Campaign of cases like these, with broad collective goals.
case, for example, than in the demographics of the Our review found 209 cases involving the right
thousands of women and children who benefited from to health and 173 involving the right to education.
the resulting distribution of medications to prevent The Indian courts heard cases involving low-cost goods
mother-to-child transmission of HIV. and services, such as the regulation of, and policies toward,
Table 2
Distributive Impact of Health and Education Rights Litigation, South Africa
Standard for Percent N
Case name Description “underprivileged” underprivileged underprivileged Total N
Van Biljon HIV1 prisoners Prisoner 100 57,600 57,600
TAC HIV1 pregnant women Household income* 69 37,950 55,000
Interim procurement Procurement of ARVs Household income* 69 29,325 42,500
Hazel Tau Generic ARVs Household income* 69 82,110 119,000
Total Health 76 206,985 274,100
Premier Mpumalanga Subsidies for poor children “Indigent” children 100 22,500 22,500
Watchenuka School-age asylum seekers Asylum seeker 100 50,625 50,625
Total Education 100 73,125 73,125
Total 81 280,110 347,225
*Household income less than $132 per month

primary education and basic health care. Many of these vehicles in Delhi to use cleaner fuels. This resulted in
are not classic cases of positive-rights provision, but look sharply lower rates of respirable suspended-particulate
more like negative-rights cases—and even these some- matter (RSPM) in the air around Delhi. Our calculations
times suffer from a lack of enforcement.62 Examples of show that the change saved an estimated 14,323 lives
poorly-implemented negative-rights decisions include in Delhi from 2002–2006 and significantly reduced
a ban on child labor, a ban on corporal punishment in morbidity among about 523,000 people. To estimate
schools, a ban on smoking in public places,63 injunctions disadvantaged beneficiaries, we assumed that the
to close polluting factories and set up green zones, and a distribution of illness episodes followed the distribution of
case permitting criminal prosecution of medically-negligent asthma in the general population. About 47 percent of
health care providers. Similarly, more positive-rights cases diagnosed asthma sufferers in India come from the lowest
sometimes suffer from low implementation, including rulings two income quintiles,65 so that the number of disadvan-
on hospital quality, extending the right to pre-primary taged beneficiaries was 259,196 people. This is likely an
education, and setting up schools for blind children.64 underestimate: rates of diagnosis, as in Brazil, are likely
We did, however, find substantial impact from several lower for the lower-income groups, and in this case the
streams of litigation in India. In some cases, the benefits decision’s benefits improve conditions for all asthma
of broad collective decisions trend away from the poor, sufferers—the undiagnosed perhaps even more than the
due to weaknesses in the distribution of India’s state diagnosed ones.
benefits. In contrast to South Africa, 77 percent of the We estimated the impact of the right-to-food litigation
beneficiaries of AIDS litigation were not from disadvan- to be the sum of impacts on school attendance and on
taged classes (table 3) because most of the benefits went to nutritional status. The free midday meals increased the
the few who already accessed (very unevenly distributed) incentive for parents to send children to school, partic-
hospital care. Similarly, although we estimated a large ularly girls; and studies indeed found that the program
number of beneficiaries from increasing patients’ right to increased first grade school enrollment, for girls alone, by
sue doctors for malpractice, these benefits went to those 10 percent per year. As a result, the program resulted in
who were utilizing formal sector private medicine, only 412,500 new girls in school each year from 2001–2006.
13 percent of whom came from the lowest two income All of these were likely disadvantaged, as the lowest-income
quintiles. Unequal access to basic services can skew even girls are the ones who are prevented from attending school
progressive patterns of litigation. due to a lack of food. We estimated that nearly ten million
The remaining two litigation streams that affect large students benefited from the program’s nutritional effects.
numbers of people were strongly pro-poor. The first Similar calculations for other cases are in table 3.
focused on air quality in Delhi and other urban centers; Overall, the share of disadvantaged beneficiaries in
the other on the provision of midday meals to students in India was about 84 percent, consistent with the
public schools. The former does not depend on the state expectations when the legal system permits abstract policy
for distribution, and the other is distributed through the review and cases focus on broad policy issues, such as
schools, where there is a broad base of participation. regulation. Note, however, that the lion’s share of the pro-
The Delhi clean air cases culminated in a 2001 order poor benefits in India stemmed from just one or two major
in which the Indian Supreme Court required commercial cases (confirming our intuition that the most progressive
Table 3
Distributive Impact of Health and Education Rights Litigation Streams, India
Litigation Stream Percent underprivileged N underprivileged Total N
Extend Consumer Protection Act to health care 13 219,216 1,648,240
Secure blood banks 23 14,260 62,000
Free ARVs for AIDS patients 34 3,400 10,000
Limit vehicular pollution 47 259,196 551,481
New hospital for Union Carbide victims 40 148,000 370,000
Midday meals in schools 100 9,841,667 9,841,667
Total Health 84 10,485,739 12,483,388
Extend teacher qualification 37 31,080 84,000
Expand access to tertiary education 11 2,200 20,000
Total Education 32 33,280 104,000
Total 84 10,519,019 12,587,388
June 2014 | Vol. 12/No. 2 385

cases are also those that have the greatest potential for broad at all. These middle class families are not, of course, rich
impact), and that shortcomings in India’s state capacity by global standards: approximately half of Indonesians
otherwise constrained the potential pro-poor impact of consumed less than US$2/day in 2007.66 Still, we estimated
collective litigation. that 36 percent of the public school students who benefited
were from the lowest two income quintiles. This may be
Indonesia an underestimate because adding money to the public
Our survey identified only one right-to-health or right-to- school budget might have lowered costs (Indonesian
education case with wide impact in Indonesia since the public school students pay considerable fees and other
beginning of the transition to democratic rule in 1999. costs) as well as raising quality, so that the litigation
By far the most consequential SER litigation stream in might have had the effect of drawing more lower-income
Indonesia, accounting for 95 percent of the identified families into the system.
beneficiaries, was a series of three cases involving judicial
review of government funding for K–12 education. In the Interpreting the Distributive Results
Judicial Review of the 2005 State Budget Law and two Figure 1 summarizes our findings, showing the percentage
subsequent challenges, the Constitutional Court ordered of underprivileged persons benefiting in each class of
compliance with a constitutional requirement that the litigation. With some exceptions, such as prisoners or
budget allocate 20 percent of its expenditures to education. refugees, the underprivileged category in each line repre-
These rulings contributed to an increase in education’s share sents the bottom 40 percent of the population in terms of
of the budget from 7 percent to nearly 12 percent in income. Any finding that more than 40 percent of the
the next few years (and eventually 20 percent, but only beneficiaries are underprivileged, therefore, is a finding
once the definition of the numerator changed). Our study that the poor are overrepresented among beneficiaries
estimated, very conservatively, that at least 750,000 students compared to the general population. With the exception
received significantly better schooling as a result of more of the Indonesia education cases, in all cases in which the
financing (out of some 50 million students enrolled in litigation is pursued for its collective effects, the underpriv-
primary and secondary education at the time). ileged are overrepresented—and in most cases by a margin
In Indonesia, the poorest are underrepresented in public of at least two to one. When the landscape is dominated by
education—middle class families commonly use public uncoordinated individual litigation, on the other hand, the
schools while many of the poorest families are not enrolled poor are less likely to be among the beneficiaries.
Figure 1
Percent underprivileged in each category

Several findings deserve highlighting. First, of course, Third, as shown here and in the Appendix, even our
the share of underprivileged beneficiaries in each class of own fairly narrow examination shows that nearly all cases
cases is generally higher when expected collective effects have some systemic effects, and estimates of the progressive
dominate individual effects. India and South Africa, where or regressive effect of SER litigation need to take this into
collective litigation dominates, are at the high end, Nigeria account. Among cases that direct the state to provide more
at the low end, and Brazil and Indonesia in between. resources, the difference between Brazil, on the one hand,
Overall, in cases with expected collective effects the poor and India, Indonesia, and South Africa, on the other, is
are overrepresented among the beneficiaries of SE litigation that the systemic collective effects in the former were
by a factor of around 4 to 1. In Indonesia, our estimate the product of individual cases that were intended by the
of how the poor benefit is highly conservative, so the litigants to have purely individual direct effects, so that
numbers might actually be better than we show here. Both the claims generally targeted higher-end goods for which
there and in India, the pro-poor impact of many collective demand was spread across all income strata. Only where
cases is muted by the limited reach of the welfare state to litigation was expressly undertaken for its collective effects
the poorest sectors of the population, not by any structural do we see a focus on low-end goods for which we might
elite bias in the law. In these cases, the use of existing state expect demand to concentrate among low-income popula-
mechanisms to distribute benefits—whether of litigation or tions, and which are inexpensive enough for the state to
any other form of mobilization—will continue to privilege provide on a massive scale.
those who are already in some relationship to the state. In summary, for all the seemingly commonsensical
Only a more structural approach aimed at developing reasons to expect litigation to be an elite game, the evi-
state capacity, which we have not observed in existing dence does not support a finding that only the better-off
SER litigation and which may well exceed the capacity of benefit—in fact, in many of the categories, the primary
courts, would avoid this outcome. Even absent litigation beneficiaries of the cases in our sample were the underpriv-
explicitly designed to expand state infrastructure, however, ileged. It is true then that litigation does not, with important
exceptions, target primary health care, where individual
legal mobilization could have a positive effect. Especially if
interventions tend to be relatively low cost; but it is not true
we accept the argument that improving education funding
that it does not target primary education. It is true that
or food distribution should extend its reach to lower socio-
many of the cases are brought by middle class people or
economic sectors, it appears that, when courts adopt a more
people who fit some definition of privilege (such as the
programmatic approach, a legal strategy can somewhat
white Afrikaans-speaking population of South Africa); but it
correct for the prior maldistribution of state services, rather
is not true that these cases dominate, either in number of
than merely reflecting or intensifying inequalities. cases or number of beneficiaries. This is strong evidence that
Second, even in the cases we did not expect to be pro- human rights litigation on behalf of social and economic
poor, the impact of litigation was not as elite-biased as we rights is not inherently anti-poor, and can actually address
might have predicted. In the Brazil health cases the poor the needs of marginalized groups.
were, in fact, almost proportionately represented—whether
that is a terrible outcome or a not so bad one depends on Conclusion: Future Research on Social
one’s prior expectations. Cross-country and cross-policy Rights Mobilization
area differences in the number of cases counsel against too There are a number of reasons why our analysis here
much aggregation, but on average the underprivileged are should be treated as a preliminary finding and an invi-
only underrepresented among the beneficiaries of individual tation to further research. The first is that, as is evident
litigation by about twelve percent (35 percent, relative to the from the preceding discussion, our data are rough and
distributionally neutral benchmark of 40 percent), while our conclusions could be tested or extended with more
they are overrepresented by over 200 percent in the areas in-depth comparative case studies. The more important
where we expected a more pro-poor effect (82 percent one, however, is that, as anticipated in the introduction,
compared to 40 percent). This is in part due to what we need to think beyond the “command and control”
we suggested earlier—systems that restrict benefits to the model of law’s operation.
litigants tend to favor a wealthier population, but they also There are very few studies of the effect of social rights
have effects that are not as widespread. The exception to the constitutionalism on the politics of social policy, beyond
“individual litigation equals low impact” equation is Brazil, the study of litigation, which strikes us as a very partial
where a combination of low barriers to litigation and a view. What effect does the constitutionalization of rights
favorable legal environment has produced a veritable to basic goods like health care, education and so on have
industry of individual litigation. Low barriers to access, on politics more broadly? We ourselves would expect this
when litigation is limited to individual cases, might lower to be positive. Surely the debate in the United States on a
the mean income of litigants and increase the impact of liti- federal health care program is deeply colored, to the det-
gation, but will continue to exclude the truly marginalized. riment of public health provision, by the lack of express
June 2014 | Vol. 12/No. 2 387

substantive commitments to aggregate welfare in the human capital.67 In this view, the social investment
United States Constitution. Most countries writing called for by social rights constitutionalism is an in-
constitutions today opt for a more robust vision of the vestment in democracy and an investment in develop-
central government’s role in providing for the wellbeing ment. The extent to which this is or could be true
of the population than simply making space for private depends greatly on the answer to the question we posed
enterprise or subnational units to act. The point of social here. Does social rights constitutionalism simply deepen
rights constitutionalism is not that putting the right to the existing maldistribution of resources and access to
health, or the right to a decent standard of living, in the state-provided benefits, thus deepening the challenges of
constitution will make it so. Rather the hope is that unequal and underdeveloped democracies, or does it
under some conditions a constitution writing process palliate that inequality somehow?
that includes these commitments may promote a robust This study is one of the first systematic and compar-
politics of rights provision, or that, under certain circum- ative efforts to assess the distributive impact of judici-
stances, the inclusion of these provisions in constitutions alizing social and economic rights. In our view, it
affects national identities and serves as a focal point for should not be the last. Untangling the impact of judicial
mobilization. Surely drafters expect these constitutions to involvement in these basic issues of social provision and
lead to societies that take better care of the least well off, for public policy is a more complex matter than the current
reasons that far exceed the possibility of litigating particular state of research—perhaps including this piece—has
issues of social provision. acknowledged. SE rights litigation has been used to
But it is entirely possible that the presence of far-reaching scrutinize the scientific claims made to justify the denial
promises in a constitutional text, in the presence of of antiretrovirals for treating HIV and AIDS in South
enduring inequalities and deprivation, might have Africa, and to require more rigorous reason-giving by
negative consequences for this and other outcomes. policymakers in a variety of contexts. It has been used to
The presence of formal, unfulfilled social and economic call attention to private health care administrators who
rights might detract from the legitimacy of the constitution, deny benefits that are actually mandated by law in
or shift the politics from the legislative arena to a possibly Colombia. It has been used to publicize and generate
less effective judicial arena. Couching these entitlements in debate about national legislators’ decisions on the level of
the language of rights might have an atomizing, individu- education funding in Indonesia. Litigation has required
alizing effect, to the detriment of possibly more-effective policy makers to at least consider the claims of populations
collective, class-based mobilization. Focusing on rights to with little or no political influence, such as migrants and
basic goods, instead of on the economic or political con- refugees in South Africa and Indonesia, or populations
ditions that make the provision of such goods possible, displaced by environmental disasters or conflict in Indo-
might result in the misallocation of government resources nesia and Colombia. The mere possibility of litigation
and energies. Adding a long list of rights that may never be around these issues could change the quality of decision
fully realized might cheapen rights overall, leading to a lack making around them, once decision makers understand
of regard for basic civil and political rights. We simply do that their decisions will be subject to review. Our own
not have good comparative studies of the overall, systemic conclusions are tentative, our vision partial, and more
effects of what has become a hugely important political research on this question is needed.
phenomenon. Scholars of courts and scholars of compar- Beyond the implications for academics and constitution-
ative politics need to engage in a broader conversation, makers, a better understanding of the distributive and
informed by the insights of both scholarly communities, systemic effects of judicial intervention has important
about the comparative politics, the causes, and the effects of practical implications for courts and litigants, and they
social rights constitutionalism. too are deeply interested in the answer. One of the
The middle-income countries experimenting most authors was approached by a justice from a provincial
deeply with social rights constitutionalism live in a world supreme court in Argentina. The justice remarked that
shaped both by the ideological dominance of constitu- his court was flooded with cases relying on the right to
tional democracy and by global markets that place health, and he wanted to know whether he and his
constraining pressures on the welfare state. In that colleagues should treat these cases like every other case,
context, many have settled on social rights constitution- simply applying the law to the facts to resolve the indi-
alism as a way to ensure that the distribution of basic vidual case, or whether they should take into account
entitlements is not purely determined by the market. the obvious policy implications, with an eye to the
This impulse dovetails with a long tradition suggesting distributive and systemic impact of their decisions. If it
that basic levels of material wellbeing are necessary for is true that litigation leads to more inequality, the
a successful, more participatory democracy. It is also equity-enhancing response would be either to deny the
congruent with more recent calls for a new model of cases altogether—as many have advocated—or to craft
developmental state, one that emphasizes the creation of the decisions as narrowly as possible, so as to minimally

distort public policy. But if our conclusions are correct, 14 Heywood 2009; Nattrass 2004.
the pragmatic answer is exactly the opposite—in social 15 Shankar and Mehta 2008; Khosla 2010; Gauri 2011.
and economic rights cases, judges ought to craft broadly 16 Trochev 2012; Popova 2012; Hendley 2012.
applicable, more public policy-like decisions, to the 17 Yamin and Gloppen 2011; Gauri and Brinks 2008a;
extent they can legally and practically do so. Langford 2009; Bonilla Maldonado 2013.
This raises obvious questions regarding the proper role 18 Dugard 2013, 321.
of judges in a democracy, and calls for a new take on the 19 The appellate and trial court opinions can be found
so-called “countermajoritarian difficulty” in light of the at 2009 BCCA 563 and 2008 BCSC 1363.
actual, empirical contours of twenty-first-century social 20 Horwitz 1976–77: 566.
rights constitutionalism. Is it enough to say, as the South 21 Indeed, this is part of Moyn 2010’s argument—the
African Constitutional Court has done, that any intrusion language of human rights, in his view, can have
into the legislative arena on behalf of social and economic a constraining and depoliticizing effect, regardless of
rights is one that the constitution itself invites, when it the means deployed to pursue their realization.
makes these substantive rights justiciable? Many of the 22 Cappelletti and Garth 1978–79.
contributions to this debate have centered on the South 23 Galanter 1974.
African Court’s decisions, and too many have been carried 24 Dahl 1957.
out without rigorous, comparative, empirical contribu- 25 Rosenberg 1991.
tions by social scientists. More comparative studies of the 26 Hirschl 2004.
origins and consequences of social rights constitutionalism 27 Although some have argued that courts with low
are needed to inform this debate. Our hope is that by barriers to access can and do work on behalf of some
demonstrating the complex politics of social and economic underprivileged groups. See Wilson 2009, 2007.
rights litigation we can help to promote a more consistent 28 Marshall 1950.
engagement between legal scholars and scholars of 29 See, e.g., Kapiszewski and Taylor 2012; Staton 2004;
comparative politics. Gauri, Staton, and Vargas Cullel 2013.
30 Rodríguez Garavito 2011.
Notes 31 Rosenberg 1991.
1 France 1922: 117–118; authors’ translation. 32 Ferraz 2011; Da Silva and Terrazas 2011; Biehl et al.
2 Jackson v. Joliet, 715 F.2d 1200 (7th Cir. 1983). While 2012.
Posner’s view is somewhat controversial, few would 33 Norheim and Gloppen 2011.
deny that this is the dominant view of the constitution 34 Landau 2012.
reflected in the Supreme Court’s decisions. 35 Biehl et al. 2012; Vieira and Zucchi 2007; Da Silva
3 Horwitz 1976–77. and Terrazas 2011.
4 The empirics are backed up by an Appendix that is 36 But see, for example, Forbath 2007, on the US
posted online. Find the link in the Supplementary Constitution’s potential for a more robust notion of
Materials listed below. social and economic rights.
5 Law and Versteeg 2011. 37 See especially the discussion in Brinks and Forbath
6 The term is meant to describe constitutions that 2014 and Bilchitz 2013.
attend centrally to what Roberto Gargarella in his 38 Galanter 1974, 127.
description of Latin American constitutions calls “the 39 Scheingold 1974; Rosenberg 1991; McCann 1994;
social question” by incorporating a series of rights to Rodríguez Garavito 2009.
basic social and economic goods, such as health care, 40 McCann 1994, 10.
education, housing, basic social provision, and even 41 Prado 2013.
a decent standard of living, sometimes at the expense 42 Viceconte, Mariela c. Estado Nacional (Ministerio
of addressing imbalances in the distribution of power; de Salud y Ministerio de Economía de la Nación)
Gargarella 2013. s/ Acción de Amparo, Federal Administrative Court
7 Bilchitz 2013, 47. of Appeals, Argentina, 1998-06-02.
8 Couso, Huneeus, and Sieder 2010; Hirschl 2008; 43 The PIL, as it is known, allows public-spirited people,
Sieder, Schjolden, and Angell 2005; Moustafa 2003; organizations, or institutions, often at the invitation of
Shapiro and Stone Sweet 2002; Guarnieri 2000; Stone the court, to file an action addressing important public
Sweet 1999; Tate and Vallinder 1995; Edelman 1994. policy issues.
9 Moyn 2010. 44 See also Prado 2013 for a discussion of this issue.
10 Brinks and Forbath 2014. 45 Gloppen 2009; Wilson 2009; Gauri and Brinks
11 Biehl et al. 2012. 2008b.
12 Prado 2013. 46 The massive waves of pension litigation in places as
13 Susanti 2008. disparate as Russia and Argentina, involving hundreds
June 2014 | Vol. 12/No. 2 389

of thousands of cases, clearly involve litigants who, by 60 Instituto Brasileiro de Geografia e Estatística
any measure, are poor. But the remedy they seek is an (http://www.ibge.gov.br).
important one relative to the cost of litigating—an 61 The cutoff here is actually a more conservative, for our
adequate pension payment sufficient to meet their argument, $50 per month in per capita family income,
needs over their remaining lifetime. rather than the $60 that marks the bottom 40 percent.
47 See not only our own book on this (Gauri and Brinks 62 In this article, we use the terms “negative rights” and
2008a), but also many other contributions, from the “positive rights” loosely. Most negative rights demands
US (Epp 1998, 2009), South Africa (Forbath 2011), entail negative and positive duties; and positive rights
to Latin America (Yamin and Gloppen 2011). demands entail negative and positive duties. See Gauri
48 On this point, see especially Tushnet 2009. and Brinks 2012.
49 The classic references here are Horowitz 1977, and 63 Smoking was made a punishable offense in a Supreme
Rosenberg 1991. Court case in 2001, but rules implementing the ban were
50 In fact, there is research suggesting that judicial not put in place until 2008, and enforcement is still spotty.
interventions, while not panaceas, can 64 These cases raise one important question that
significantly improve the material conditions of undoubtedly deserves additional research—to what
many people who are otherwise passed over by the extent do the socio-economic characteristics of the
representative branches. See Rodríguez Garavito target population influence compliance rates? We do
2009, 2011, or our own work in Gauri and not attempt to answer it here, but limit ourselves to
Brinks 2008a. noting that there are public good-type cases in both
51 See Gauri and Brinks 2008a. Here we limit discussion the compliance and the non-compliance camp (e.g.,
of Nigeria to some examples and aggregate data, clean water and non-smoking); and club good cases
essentially because there are only two cases worth that seem to favor the poor in both camps (child labor,
discussing, and they had limited effects. which should exclusively affect the poor, and right to
52 See the Appendix, which is posted online. Find the food, which predominantly affects the poor). This
link in the Supplementary Materials listed below. question is certainly worth exploring further, as our
53 Gauri and Brinks 2008a. initial investigation shows that litigant resources are
54 Hoffman and Bentes 2008; Prado 2013. crucial to compliance in large-scale collective cases
55 Less than one percent of the beneficiaries sued for (Brinks and Gauri 2008).
over-the-counter goods that could be used by anyone. 65 http://www.who.int/healthinfo/survey/
For these goods we simply assumed that a random whs_hspa_book.pdf.
distribution of SUS beneficiaries benefited, leading to 66 http://go.worldbank.org/BEQZ2K3MR0.
an estimate that 46.6 percent of them come from the 67 Trubek 2009; Trubek, Coutinho, and Schapiro 2013.
bottom two quintiles (and thus have per capita family
incomes below about $60 USD/mon); Ribeiro et al. Supplementary Materials
2006. • Data Appendix
56 We use the 40 percent number because the most
critical studies of the beneficiaries of medications http://dx.doi.org/10.1017/S1537592714000887
litigation in Brazil find that the litigant population
approximately reflects the overall income distribution; References
Da Silva and Terrazas 2011. Other studies question Biehl, João, Joseph Amon, Mariana Socal, and Adriana
these results, finding a much greater participation by Petryna. 2012. “Between the Court and the Clinic:
the poor than either they or we do; Biehl, et al. 2012. Lawsuits for Medicines and the Right to Health in
57 Prado 2013. Brazil.” Health and Human Rights 14(1): 1–17.
58 Ribeiro et al. 2006. Bilchitz, David. 2013. “Constitutionalism, the Global
59 Norheim and Gloppen 2011. Indeed, if our calcula- South, and Economic Justice." In Constitutionalism of
tion were done in dollars, rather than in numbers of the Global South: The Activist Tribunals of India, South
people benefited, we might have a more regressive Africa, and Colombia, ed. Daniel Bonilla Maldonado.
result. Vieira and Zucchi 2007, for instance, find that New York: Cambridge University Press.
75 percent of the dollars allocated through court Bonilla, Maldonado Daniel ed. 2013. Constitutionalism of
actions are attributable to cancer drugs. If we used this the Global South: The Activist Tribunals of India, South
figure, and assume a blended rate of 41 percent for the Africa, and Colombia. New York: Cambridge University
other 25 percent of dollars allocated, as explained in Press.
the Appendix, we would find that somewhere around Brinks, Daniel M., and William Forbath. 2014. “The Role
30 percent of the benefits, in dollar terms, accrue to of Courts and Constitutions in the New Politics of
the bottom two income quintiles. Welfare in Latin America.” In Law and Development of

Middle-Income Countries: Avoiding the Middle-Income Gargarella, Roberto. 2013. Latin American Constitution-
Trap, ed. Randall Peerenboom and Tom Ginsburg. alism, 1810–2010: The Engine Room of the Constitution.
New York: Cambridge University Press. New York: Oxford University Press.
Brinks, Daniel M. and Varun Gauri. 2008. “A New Policy Gauri, Varun. 2011. “Fundamental Rights and
Landscape: Legalizing Social and Economic Rights in Public Interest Litigation in India: Overreaching or
the Developing World.” In Courting Social Justice: Underachieving?” Indian Journal of Law and Economics
Judicial Enforcement of Social and Economic Rights in the 1(1): 71–93.
Developing World, ed. Varun Gauri and Daniel M. Gauri, Varun, and Daniel M. Brinks, eds. 2008a. Courting
Brinks. Cambridge: Cambridge University Press. Social Justice: Judicial Enforcement of Social and
Cappelletti, Mauro, and Bryant Garth, eds. 1978–79. Economic Rights in the Developing World. Cambridge:
Access to Justice. 4vols. Milan: A. Giuffrè. Cambridge University Press.
Couso, Javier, Alexandra Huneeus, and Rachel Sieder, eds. . 2008b. “Introduction: The Elements of Legaliza-
2010. Cultures of Legality: Judicialization and Political tion and the Triangular Shape of Social and Economic
Activism in Latin America. Cambridge and New York: Rights.” In Courting Social Justice: Judicial Enforcement
Cambridge University Press. of Social and Economic Rights in the Developing World,
Da Silva, V. A., and F. V. Terrazas. 2011. “Claiming the ed. Varun Gauri and Daniel M. Brinks. Cambridge:
Right to Health in Brazilian Courts: The Exclusion of Cambridge University Press.
the Already Excluded?” Law & Social Inquiry 36(4): . 2012. “Human Rights as Demands for
825–53. Communicative Action.” Journal of Political Philosophy
Dahl, Robert. 1957. “Decision-Making in a Democracy: 20(4): 407–431.
The Supreme Court as a National Policy-Maker.” Gauri, Varun, Jeffrey K. Staton, and Jorge Vargas
Journal of Public Law VI(2): 279–95. Cullel. 2013. “A Public Strategy for Compliance
Dugard, Jackie. 2013. “Courts and Structural Poverty in Monitoring,” World Bank Policy Research Working
South Africa.” In Constitutionalism of the Global South: Paper 6523.
The Activist Tribunals of India, South Africa, and Gloppen, Siri. 2009. “Litigation as a Strategy to Hold
Colombia, ed. Daniel Bonilla Maldonado. New York: Governments Accountable for Implementing the Right
Cambridge University Press. to Health.” Health and Human Rights 10(2): 21.
Edelman, Martin. 1994. “The Judicialization of Politics in Guarnieri, Carlo. 2000. “Judicialization: Borders
Israel.” International Political Science Review 15(2): between Political and Legal Culture.” In The New
177–86. Federalism: Structures and Infrastructures, American
Epp, Charles. 1998. The Rights Revolution: Lawyers, and European Perspectives, ed. Kjell Åke Modéer.
Activists, and Supreme Courts in Comparative Perspective. Stockholm: FRN.
Chicago: University of Chicago Press. Hendley, Kathryn. 2012. “Too Much of a Good Thing?
. 2009. Making Rights Real: Activists, Bureaucrats, Assessing Access to Civil Justice in Russia.” Legal Studies
and the Creation of the Legalistic State. Chicago: Research Paper Series, 1209, available from http://ssrn.
University of Chicago Press. com/abstract52149076.
Ferraz, Octavio Luiz Motta. 2011. “Harming the Poor Heywood, Mark. 2009. “South Africa’s Treatment Action
through Social Rights Litigation: Lessons from Brazil.” Campaign: Combining Law and Social Mobilization to
Texas Law Review 89: 1643–68. Realize the Right to Health.” Journal of Human Rights
Forbath, William. 2007. “Social Rights, Courts and Practice 1(1): 14.
Constitutional Democracy: Poverty and Welfare Rights Hirschl, Ran. 2004. Towards Juristocracy: The Origins and
in the United States.” In On the State of Democracy, ed. Consequences of the New Constitutionalism. Cambridge,
Julio Faundez. Oxford and New York: Routledge. MA: Harvard University Press.
Forbath, William, with assistance from Zachie Achmat and . 2008. “The Judicialization of Mega-Politics and
Mark Heywood. 2011. “Cultural Transformation, Deep the Rise of Political Courts.” Annual Review of Political
Institutional Reform, and ESR Practice: South Africa’s Science 11: 93–118.
Treatment Action Campaign.” In Stones of Hope: How Hoffman, Florian, and Fernando R. N. M. Bentes.
African Activists Reclaim Human Rights to Challenge 2008. “Accountability for Social and Economic
Global Poverty, ed. Lucie White and Jeremy Perelman. Rights in Brazil.” In Courting Social Justice:
Stanford, CA: Stanford University Press. Judicial Enforcement of Social and Economic Rights
France, Anatole. 1922. Le Lys Rouge [The Red Lily]. in the Developing World, ed. Varun Gauri and
nouv.éd, rev. et corr. ed. Paris: Calmann-Lévy. Daniel M. Brinks. New York: Cambridge University
Galanter, Marc. 1974. “Why the ‘Haves’ Come out Press.
Ahead: Speculations on the Limits of Legal Change.” Horowitz, Donald L. 1977. The Courts and Social Policy.
Law & Society Review 9(1): 95–160. Washington: Brookings Institution.
June 2014 | Vol. 12/No. 2 391

Horwitz, Morton J. 1976–77 “The Rule of Law: An http://www.escr-net.org/usr_doc/Rodriguez_-_

Unqualified Human Good?” Yale Law Journal 86(3): Colombia.pdf.
561–66. . 2011. “Beyond the Courtroom: The Impact of
Kapiszewski, Diana, and Matthew Taylor. 2012. “Com- Judicial Activism on Socioeconomic Rights in Latin
pliance: Conceptualizing, Measuring, and Explaining America.” Texas Law Review 89: 1669.
Adherence to Judicial Rulings.” Law & Social Inquiry Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts
38(4): 803. Bring About Social Change? Chicago: University of
Khosla, Madhav. 2010. “Making Social Rights Condi- Chicago Press.
tional: Lessons from India.” International Journal of Scheingold, Stuart A. 1974. The Politics of Rights: Lawyers,
Constitutional Law 8: 210. Public Policy and Political Change. Ann Arbor: Univer-
Landau, David. 2012. “The Reality of Social Rights sity of Michigan Press.
Enforcement.” Harvard International Law Journal Shankar, Shylashri, and Pratap Bhanu Mehta. 2008.
53(1): 189–247. “Courts and Socioeconomic Rights in India.” In
Langford, Malcolm. 2009. Social Rights Jurisprudence: Courting Social Justice: Judicial Enforcement of Social
Emerging Trends in Comparative and International Law. and Economic Rights in the Developing World, ed.
New York: Cambridge University Press. Varun Gauri and Daniel M. Brinks. New York:
Law, David, and Mila Versteeg. 2011. “The Evolution and Cambridge University Press.
Ideology of Global Constitutionalism.” California Law Shapiro, Martin, and Alec Stone Sweet. 2002. On Law,
Review 99(5): 1163–257. Politics and Judicialization. Oxford and New York:
Marshall, T. H. 1950. Citizenship and Social Class, and Oxford University Press.
Other Essays. Cambridge: Cambridge University Sieder, Rachel, Line Schjolden, and Alan Angell, eds.
Press. 2005. The Judicialization of Politics in Latin America.
McCann, Michael. 1994. Rights at Work: Pay Equity New York: Palgrave Macmillan.
Reform and the Politics of Legal Mobilization. Chicago: Staton, Jeffrey. 2004. “Judicial Policy Implementation in
University of Chicago Press. Mexico City and Mérida.” Comparative Politics 37(1):
Moustafa, Tamir. 2003. “Law Versus the State: The 41–60.
Judicialization of Politics in Egypt.” Law & Social Stone Sweet, Alec. 1999. “Judicialization and the Con-
Inquiry 28(4): 883–930. struction of Governance.” Comparative Political Studies
Moyn, Samuel. 2010. The Last Utopia: Human Rights in 32(2): 147–84.
History. Cambridge, MA: Belknap Press of Harvard Susanti, Bivitri. 2008. “The Implementation of the Rights
University Press. to Health Care and Education in Indonesia.” In
Nattrass, Nicoli. 2004. The Moral Economy of Aids in South Courting Social Justice: Judicial Enforcement of Social and
Africa. Cambridge: Cambridge University Press. Economic Rights in the Developing World, ed. Varun
Norheim, Ole Frithjof, and Siri Gloppen. 2011. Gauri and Daniel M. Brinks. New York: Cambridge
“Litigating for Medicines: How to Assess Impact on University Press.
Health Outcomes?” In Litigating Health Rights: Can Tate, C. Neal, and Torbjörn Vallinder. 1995. “The
Courts Bring More Justice to Health? ed. Alicia Ely Global Expansion of Judicial Power: The Judicialization
Yamin and Siri Gloppen. Cambridge, MA: Harvard of Politics.” In The Global Expansion of Judicial Power,
University Press. ed. Neal Tate and Torbjörn Vallinder. New York: New
Popova, Maria. 2012. “Post-Communist Courts: York University Press.
Independence, Accountability, Popular Trust.” Trochev, Alexei. 2012. “Suing Russia at Home.” Problems
Problems of Post-Communism 59(5): 3–5. of Post-Communism 59(5): 18–34.
Prado, Mariana M. 2013. “The Debatable Role of Courts Trubek, David M. 2009. “Developmental States and the
in Brazil’s Health Care System: Does Litigation Harm Legal Order: Towards a New Political Economy of
or Help?” Journal of Law, Medicine and Ethics 41(1f): Development and Law.” Discussion Paper No. 1075,
124–37. University of Wisconsin Law School.
Ribeiro, M. C. S. A., R. B. Barata, M. F. Almeida, and Trubek, David M., Diogo R. Coutinho, and Mario G.
Z. P. Silva. 2006. “Perfil Sociodemográfico e Padrão de Schapiro. 2013. “Toward a New Law and
Utilização de Serviços de Saúde para Usuários e Não- Development: New State Activism in Brazil and the
Usuários do SUS-PNAD 2003.” Ciência & Saúde Challenge for Legal Institutions.” World Bank Legal
Coletiva 11(4): 1011. Review 4: 281–314.
Rodríguez Garavito, César. 2009. “Assessing the Tushnet, Mark. 2009. Weak Courts, Strong Rights:
Impact and Promoting the Implementation of Judicial Review and Social Welfare Rights in
Structural Judgments: A Comparative Case Study Comparative Constitutional Law. Princeton, NJ:
of ESCR Rulings in Colombia.” Available from Princeton University Press.

Vieira, Fabio Sulpino, and Paola Zucchi. 2007. “Distor- . 2009. “Rights Revolutions in Unlikely Places:
tions to National Drug Policy Caused by Lawsuits in Colombia and Costa Rica.” Journal of Politics in Latin
Brazil.” Revista de Saúde Pública 41(2): 214–22. America 1(2): 59–85.
Wilson, Bruce M. 2007. “Claiming Individual Rights Yamin, Alicia Ely, and Siri Gloppen, eds. 2011.
through a Constitutional Court: The Example of Gays Litigating Health Rights: Can Courts Bring More
in Costa Rica.” International Journal of Constitutional Justice to Health? Cambridge, MA: Harvard
Law 5(2): 242–57. University Press.
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