From Equal Protection to the Right to Health: Social and Economic Rights, Public Law Litigation, and How an Old Framework Informs a New Generation of Advocacy

Article excerpt

Since the 1990s, rights to health, food, and shelter have been litigated in South Africa, India, and elsewhere. Human rights scholars and American legal commentators frequently treat social and economic rights litigation as if it were a distinct form of litigation. Academic debate then focuses on whether courts should confront social and economic rights litigation, evaluating how it might succeed where other litigation strategies have failed. This Note argues that social and economic rights cases are a subset of public law litigation, subject to the exactly the same limitations as public law claims. So categorized, scholars can use measures of success developed in public law theory to analyze social and economic rights litigation. Such measures are critical as the debate among human rights theorists moves from whether social and economic rights are judicially enforceable generally to how best to enforce them.

I. INTRODUCTION

On May 1, 2007, the City of Yonkers and minority inhabitants who challenged the city's education and housing policies reached a settlement, bringing a quiet close to twenty-seven years of heated litigation.1 The district court judge, nearing retirement in 2007, had been on the bench for one year when the case appeared on his docket.2 On July 25, 2007, the Supreme Court of India issued its twenty-second interim order in litigation challenging the government's failure to implement food programs designed to protect the country's most vulnerable populations, holding the chief secretaries of five states in contempt of court.3

Notwithstanding their apparent differences, this Note argues that these cases are subject to similar limitations and possibilities. Socioeconomic rights litigation,4 like the case brought in India, is not different in kind from United States v. Yonkers Board of Education,5 Brown v. Board of Education,6 or other attempts at social reform through legal channels. All are examples of structural reform litigation, which aims to unsettle entrenched institutional behavior for public benefit.7 Social and economic rights litigation is therefore subject to the same, but not additional, limitations as public law litigation generally.8

Elements of this argument have appeared elsewhere. Many commentators have noted that recent social and economic rights litigation call upon judges to perform familiar tasks, such as reasonableness review.9 Others have evaluated the implementation and enforcement of social and economic rights decisions.10 However, none have explicitly and categorically framed foreign socioeconomic rights litigation as structural reform litigation, linking public law theory and socioeconomic rights enforcement. So framed, scholars would be better able to evaluate the ability of social and economic rights litigation to achieve its goals. Public law theory provides measures of success in achieving structural change through litigation. Such measures are critical as the debate among human rights theorists moves from whether social and economic rights are judicially enforceable generally to how best to enforce them.11

Part II of this Note explains the distinction between social and economic rights and civil and political rights in human rights scholarship. It then introduces public law theory. In Part III, three case studies illustrate the shared characteristics of social and economic rights litigation in India and South Africa, and traditional structural reform litigation in the United States. The cases also demonstrate common challenges in structural reform litigation related to monitoring and accountability, litigation's effectiveness, and institutional and practical court capacity. Part IV discusses the measures of litigation "success" in public law theory - participation, flexibility, and transparency - and advocates that these measures should be applied to social and economic rights litigation. Part V concludes.

II. FRAMING SOCIAL AND ECONOMIC RIGHTS LITIGATION AS STRUCTURAL REFORM LITIGATION

By framing social and economic rights litigation as structural reform, this Note responds to the position that the enforcement of social and economic rights is categorically distinct from the enforcement of civil and political rights. …