A Response to David Landau

David Landau’s article, The Reality of Social Rights Enforcement,[1] is an important contribution to a growing literature on the judicial role in enforcing social and economic rights. He joins others in noting that debate has ended over whether constitutions should include such rights and whether, if included, those rights should be judicially enforceable.[2] Not “whether,” but “how” is the question now on the table among serious scholars and judges.

Landau’s article presents the “how” question in a new light. Drawing together numerous strands in the literature, he helpfully identifies four remedial forms—individual actions primarily seeking individual-level affirmative relief,[3] negative injunctions, weak-form review, and structural injunctions—and assesses their likely effects on the distribution of the material goods that social and economic rights are designed to secure.[4] Proponents of such rights seek them primarily to ensure that the least advantaged in society live in material conditions consistent with basic human dignity.

As Landau observes, effective implementation of social and economic rights for the least advantaged faces formidable obstacles.[5] Many of the world’s poorest nations have severely limited internal economic resources.[6] Political obstacles are substantial even when resources are available or could be made available through tax increases. Those already advantaged typically have a favored position in national politics, allowing them to block redistributive initiatives (whether from the legislature or from the courts). The least advantaged may be quite numerous, but they face resource constraints in mobilizing politically or in litigation. The prospects for achieving substantial improvements in the material conditions of the least advantaged through political or judicial action are inevitably small.[7]

One might think that judicial resources should be husbanded for use in the most favorable conditions for enforcing social and economic rights. Yet, as Landau persuasively argues, individual actions are likely to provide social and economic rights primarily for those in the middle classes, not for the least advantaged.[8] The reason is that those in the middle classes are more likely than the least advantaged to have the ability to mobilize the legal system in an individual action. They have the requisite knowledge and have access to legal assistance to bring these actions. In short, they have a better “support structure” for securing rights, to use political scientist Charles Epp’s term.[9] Landau acknowledges that nongovernmental organizations and similar agencies, some associated with the state itself, can provide education about legal rights and legal assistance to the least advantaged.[10]However, the resources devoted to such efforts are unlikely to overcome the structural advantages the middle classes have in individual actions.

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[1] David Landau, The Reality of Social Rights Enforcement, 53 Harv. Int’l L.J. 189 (2012).

[2] The United States is an exception for two perhaps related reasons. First, the U.S. Constitution is an old one, written before the political and ideological developments that fueled the inclusion of social and economic rights (and, now, cultural and environmental rights) in more recently written ones. Its text provides fewer resources for developing constitutional arguments for judicially enforceable social and economic rights. “Fewer,” though, does not mean “none,” and Cass Sunstein has suggested that only Richard Nixon’s narrow victory over Hubert Humphrey in 1968 prevented the Supreme Court from crafting a substantial jurisprudence of social and economic rights. Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever 149–72 (2004). Second, the general weakness of the social democratic tradition in the United States, which is both political and ideological, has meant that advocacy of judicially enforceable social and economic rights has been limited.

[3] I assume that individual damage actions would have characteristics similar to those Landau associated with individual-level affirmative relief.

[4] Landau, supra note 1, at 201.

[5] See generally Landau, supra note 1.

[6] For that reason, typical formulations of social and economic rights refer to their progressive realization within available resources.

[7] I note that fairly strict market-oriented policies might be the best ones to achieve the progressive realization of social and economic rights, at least on the level of political and economic theory. Advocates for social and economic rights usually reject that theoretical case. Notably, even that case might commend some judicial intervention in support of market-oriented policies—of the sort typically associated in the United States with Lochner v. New York, 198 U.S. 45 (1905).

[8] Landau, supra note 1, at 202–29.

[9] Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective ch. 3 (1998).

[10] See Landau, supra note 1, at 227.