Rights

for the rich, privation for the poor? The distributive impact of litigating social and economic rights
Daniel M. Brinks University of Texas at Austin Varun Gauri The World Bank

Draft: April 15, 2011

THIS IS A PRELIMINARY DRAFT.

Prepared for the conference Rights and Their Translation into Practice: Toward a Synthetic Approach, April 22- 24, 2011, The Rogers College of Law, University of Arizona The authors acknowledge Yanran Chen, Victor A Hernandez Huerta, and Nara Pavao for excellent research assistance. The views and findings expressed in this paper are those of the authors alone and do not represent the views of the World Bank or its Executive Directors.

PLEASE DO NOT CITE WITHOUT EXPRESS PERMISSION OF THE AUTHORS

Courts for the wealthy, alms for the poor? The distributive impact of litigating social and economic rights Many, and likely most, accounts of the use of law to achieve social change are skeptical. It is probably fair to say that conventional wisdom holds the following: economic, social, and procedural barriers prevent the great majority of poor people from making claims in courts; accumulated experience gives the rich and the powerful advantages in the courtroom; patterns of judicial recruitment and retention, which reflect prevailing configurations of political power, significantly affect the attitudes and calculations of judges; and a determined executive branch can easily limit and even undermine the implementation of pro-poor rulings. Despite this conventional wisdom among scholars, constitutional optimism about the use of law to achieve social change has never been higher. Most constitutions, especially the most recent ones, have incorporated a litany of social and economic (SE) rights; and many of these constitutions, or the courts that have interpreted them, have assumed that judicial scrutiny will play an important role in realization of these rights. By definition, these rights, if taken seriously, would use law to achieve broad redistributive consequences. A brief listing of examples will make the point. The Indonesian Constitutional Court issued a series of opinions from 2004-2006 enjoining the government to comply with minimum constitutional spending requirements for education, which contributed to a doubling of budget allocations toward that sector (Susanti 2008). In 2004 the South African Constitutional Court interpreted the constitutional right to health to require a recalcitrant 2

Mbeki government to launch a major program to prevent the vertical transmission of HIV from mothers to infants (Forbath 2010), an initiative that likely averted tens of thousands of HIV infections (Nattrass 2004). In a significant recent ruling, the Brazilian apex court affirmed, on the basis of the rights to life and health, widespread support among lower courts for claims for medications and health services, a litigation stream comprising tens of thousands of cases each year (STF 2009, Biehl 2010). In India, the courts have issued a large number of rulings on the constitutional rights to health care, education, housing, the environment, nutrition, and labor, many of which have had significant affects on social policies (Shankar and Mehta 2008, Fredman 2010, Khosla 2011). On several occasions, courts in Argentina have required the state to provide or avoid interruptions in the provision of essential medicines, including in the 1998 Vicente case, in which a court required the state to produce a treatment for hemorrhagic fever and held the Ministers of Health, Economy and Labor, and Public Services personally responsible for doing so (Bergallo 2005). In Costa Rica, the Constitutional Chamber of the Supreme Court has involved itself on social policy in a number of areas (Wilson 2005), including a decision to require the public health system to make ARV treatments for AIDS available, to which a newspaper report attributed an 80 percent reduction in AIDS mortality.1 Even in the United States, where the Supreme Court has firmly dismissed social and economic rights claims made on the basis of the federal constitution, rulings on the basis of state constitutions have spurred significant changes in financing for education and social assistance (Hershkoff 1999; Forbath 2007). A recent review analyzes more than two thousand social
1 Cantero, M. Antirretrovirales reducen mortalidad de ticos con sida [Antiretrovirals

reduce mortality of Costa Ricans with AIDS]. La Nacin, San Jos, Costa Rica, November 16, 2005. 3

and economic rights cases from twenty-nine national and international jurisdictions (Langford 2008). Overall, this brief summary shows that constitutional rights are increasingly supporting demands for social and economic goods and services, and that courts are taking an increasingly important role in deciding the extent to which the seemingly nonnegotiable interests embodied in constitutions should be considered and protected in policy making. The conventional wisdom has not dampened the hopes of activists and constitutional reformers. What should we make all this activity legal activity that aims to guarantee social and economic rights? Are all these constitutions and legal actions tilting at windmills, or should we revise our understanding of the conventional wisdom? This paper begins to provide answer to those questions. It is based on the initial results of a book that carried out detailed studies of SE rights enforcement in Brazil, India, Indonesia, Nigeria, and South Africa (Gauri and Brinks 2008). That book offered empirically grounded answers to many of the issues raised by judicial involvement in the policy- making process., including questions related to the extent of judicialization, (Tate and Vallinder 1995), the issues of implementation and the measurement of the the real world impact of the court rulings, and the circumstances that promote the legalization of social policy. For purposes of this paper, the most important question the book raised was whether giving courts a more prominent role in economic and social policy making on the basis of social and economic rights in fact benefited disadvantaged individuals and groups. That book included estimates of the numbers of people benefited from constitutional health and education rights cases in Brazil, India, Indonesia, Nigeria, and South Africa.

In this paper we extend the analysis of the book with detailed estimates of the share of benefits going to disadvantaged classes in each of those countries. Overall, we find that the impact of courts is modest, but positive and pro-poor in four of the five countries. We argue that this raises some questions regarding the conventional wisdom law and social change, at least as it relates to social and economic rights litigation. The next section of this paper briefly reviews the extant literature on the progressivity of social and economic rights litigation. The following presents a framework for thinking about the distributive impact of SE rights litigation and develops our hypotheses. Then we present our data from the five countries. The concluding section examines what this means for the conventional wisdom. Current evidence and the counterfactual To begin with, it is useful to distinguish general skepticism about law and social change from the more particular analysis we are making here concerning the distributive effects of social and economic rights litigation. The law as such constitutes a wide-ranging field, and it is not easy to confirm or disprove general theoretical predictions concerning the distributive consequences of legal institutions as diverse as human rights, criminal law and penal reform, bankruptcy proceedings, anti-corruption laws, and judicial review. Hirschl contends that courts and constitutions represent conservative elite interests, and that, in interpreting constitutional rights, they advance a predominantly neo-liberal conception of rights that reflects and promotes the ideological premises of the new global economic order social atomism, anti-unionism, formal equality, and minimal state policies (Hirschl 2000: 1063). Galanter (1974) famously argued that the haves always 5

come out ahead, because of their comparative advantage in the legal system. Stryker (2007) reviews the literature on law, inequality, and social change in capitalist democracies. Our concern is litigation regarding social and economic rights. Here, too, broad categorical statements about whether litigation strategies are regressive or progressive are likely wrong simply because there are so many different kinds of litigation strategies that seek so many different goals on behalf of such radically different groups that a uniform prediction is unlikely to be accurate. What we need is an account of what kinds of litigation are more or less problematic. The succeeding section presents our typology of SE rights litigation and the predicted consequences of these types of litigation. Here, we want to make the point that every assessment of the effects of law needs a counterfactual: in assessing the redistributive effect of litigation, perhaps the most important question is compared to what? One needs to compare the observed effects of legalizing social policy to the effects of using, instead of law, alternative means of distributing social and economic goods, such as states and markets as they are constructed and regulated in specific contexts. All studies on the effects of legalizing social and economic rights rely on a counterfactual; but the problem is that it is most often implicit rather than explicit. What if we know (as we do) that there is always a pronounced social gradient in the distribution of public services in every country, that the poor have lower utilization rates along almost every dimension of health care, from vaccinations to pre- and post-natal care, to hospitalizations and advanced surgery? What if litigation is only slightly less regressive than the existing distribution of health, education and other basic services? To conclude that litigation is regressive, we have to be able to say not only whether it is 6

more or less regressive than the status quo, but how it compares to what might have happened in the absence of litigation. For instance, Gloppen and Norheim (2011) find that the courts in Costa Rica have added to the public health regime a number of very expensive drugs with a limited payoff in quality adjusted life years. Is this progressive or regressive? If we assume a fixed health care budget, this would almost necessarily imply a reallocation from less expensive, broadly beneficial services to targeted, high-end services. But we need to know whether this implies a growth in the budget (as has been the case in Costa Rica) or a reallocation of existing funds.2 And even that does not end the matter. We would still want to know something about the system of public finance who is paying for this increase in the budget envelope? Are we robbing from housing for the poor, to pay for expensive medications that benefit the rich and (fewer) poor? We might also need to speculate on what and where the growth in the public health system might have been in the absence of this litigation perhaps new funds would have been dedicated to eradicating the main causes of infant mortality, in which case the litigation has a regressive effect, even if the actual decisions benefit the rich and the poor more or less equally. Or take the claim by Alfonso da Silva and Vargas Terrazas (2008) that the Brazilian courts are not an institutional voice for the poor, and that judicial decisions concerning the right to medications often do not benefit the less privileged. These are seemingly categorical, not comparative statements. But one must have a point of comparison to properly evaluate their conclusions. Assume (as is true in the case of Brazil) that the very 2 Health expenditures per capita in Costa Rica increased 70%, in constant international dollars, from 2003 to 2007. Over the same period, public health expenditures, as a share of the overall government expenditures, increased from 23% to 26%. World Development Indicators, 2011. 7

poor have inadequate access to primary and secondary health care while the middle class and the moderately wealthy have relatively good access to primary care but often cannot afford more expensive advanced care. 3 We then find, as these authors report, (a) litigation for health goods and services is widespread, and the judiciary is supportive of these claims; (b) that the mix of litigants in health care cases is representative of society; and (c) that the poor sue mostly for access to inexpensive primary care, while the relatively better off sue mostly for access to expensive secondary treatments. What should we conclude from this research? Should we agree with the authors that medications litigation is regressive because the better off get more (dollars) out of litigation than the poor? Surely we cannot say that the courts are not responding to the needs of the poor. Should we decide to do away with medications litigation because it shifts more public health money to the middle class? Or limit litigation to the poor? Or can we simply conclude that litigation provides a net benefit because the legal system is surprisingly accessible to all, and each class finds a way to make its demands heard within it? Do we know whether or not the poor are better or worse off under a system that includes the possibility of litigation, until we know whether the success of the middle class plaintiffs actually shrinks the amount of care (and money) available to the poor? Until we have defined and made explicit the appropriate counterfactual, we cannot decide whether we are better off with or without litigation. In other words, in order to assess the effect of litigation we need to know not only who wins, but who loses because someone else won. In other words, the problem is not only measuring health inequality accurately, which is Publica, 18: 77-87.
3 See Neri and Soares, 2002, Desigualdade social e saude no Brasil, Cadernos de Saude

feasible (though data intensive), but presenting evidence on what the inequality measure would be without litigation. 4 Finally with or without counterfactuals we have to base our conclusions on a deep understanding of how law, rights and litigation work in the overall context of building, operating, maintaining and updating a public health or educational system. It may well be that, as building a house requires different tools for different tasks, so building a just and equitable public goods system requires different tools for different tasks. Just as we should not criticize a hammer for doing no more than drive and pull nails, so, perhaps, we should not critique litigation because, in its direct effects, it has a fairly narrow function with particular consequences. Da Silva and Terrazas, for example, correctly insist that we can learn something by looking no further than the direct effects of litigation, but we have to be very careful of the general conclusions we draw from such a narrow look. While we may not wish to use litigation to design a public health system, we may be able to use it to draw attention to shortcomings of the system, to bring accountability to bear on the operators, and to empower individual users of the system in their relationships with health care providers, bureaucrats and others. And while we may want to know what the direct effects of litigation are, that may not tell us much about the overall effect of litigation. Indeed, we may be able to use it to redress inequalities in that system, even if it has regressive direct consequences. A brief example may be useful here. Take the following stylized facts, loosely based on a conversation with Jonathan Berger, a litigator then active with the Treatment Action
4 Health economists have developed health-sector specific counterparts to the Gini index

and the associated Concentration Index, as well as a measure of opportunity that combines mean and the distribution in a single measure. See Wagstaff (2002). 9

Campaign in South Africa. Say a group wishes to persuade the government to make antiretroviral treatment (ART) available to all HIV positive persons in the country, while the government is insisting on alternative traditional remedies. At time t-1, then, the public health system offers no one access to ART. At time t, after exhausting legislative and activist pressure tactics, this group decides to file a lawsuit. But the litigators and strategists decide that, especially with this kind of high profile, landmark litigation, one should carefully select the most sympathetic plaintiffs possible. They choose pregnant women and newborn babies to make the case for antiretrovirals, perhaps selecting a moderately well-off group that lives near the court and the NGOs offices, for convenience, rather than sex workers and intravenous drug users who live in remote rural areas. They press the claim and eventually win in the courts. Then they use the precedent established on behalf of these claimants to argue that, if ART is appropriate for this group, it should also be extended to other groups. Their lobbying is eventually successful, securing a full rollout of ART for anyone who is HIV positive, including sex workers, prison inmates, and intravenous drug users. If we just compare the direct beneficiaries of each method at t+1, then, we could conclude that litigation is regressive: the direct beneficiaries of litigation were relatively well off, urban pregnant women and babies, who have high social capital. The less favored claimants get ART because of lobbying efforts. But that obviously misses the bigger picture. Litigation was part of a broader strategy that ultimately resulted in broad availability. Simply comparing beneficiaries, we would miss the crucial role of litigation in opening up the door for the latter claimants.

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If we grant the premise, then, this example suggests that litigation, even if it is biased in favor of those who already have some level of political, economic and social power, could in theory still be one of several useful tools to craft a more just public health system. The appropriate comparison, in this case, is between the public health system without litigation (at t-1, above), and the public health system with litigation and the follow up strategies (at t+1). Measuring at time t or limiting the view to direct effects will lead to the wrong conclusion. The South African case is, in fact, similar though not identical to the hypothetical we just laid out. It is true that TAC and others used litigation, lobbying and community mobilization to gain access to ART for all HIV+ people in South Africa.5 Moreover, it is true that they consciously sued on behalf of attractive (or innocent) claimants pregnant women and newborn babies in the TAC case although they also sued and won on behalf of less attractive ones prison inmates in Van Biljon and Westville, for example. The end result of all their activity was surely, as we will see in more detail below, not only a more medically rational public health system, but also one that heavily benefited the poor. If we can credit litigation for breaking the initial resistance to the use of ART, then we could conclude that litigation is (partly, of course) responsible for this more equitable result even if it has moderately regressive direct effects. Even after we have done all this careful conceptual work, we may still not know what the net distributive effect actually is of an allocation regime that prominently features human rights-based claims and litigation. It will be nearly impossible to determine
5The demand to provide this dosage of nevirapine to pregnant women was actually a form

of anti-retroviral prevention, rather than anti-retroviral treatment, because it prevented the transmission of HIV to newborns without significantly lowering the viral load of the mothers. The victory in the case had the effect, however, of validating the use of anti- retrovirals more generally. 11

empirically if devoting more money to health or education, increasing the rights of patients or students, or regulating polluting industries under the threat of court sanctions produced a more egalitarian society than the alternative path a country might have taken. Take, for instance, the Indian courts health rights-based decision to compel public transport in Delhi to switch to liquid natural gas. It is clear that this decision produced a large-scale, broad- based health benefit for all the residents of Delhi, rich or poor. It may also be the case that it forced many poor people to leave the city or move because the cost of public transport went up, exacerbating income inequality, and imposed costs on auto-rickshaw drivers, who are not affluent (Rajamani 2007). To some extent, when we incorporate health rights into a constitution, we make a decision that we are prepared to accept these tradeoffs. And so it is perhaps unfair to criticize courts when they take us at our word. But the extent of the tradeoff is not clear until courts have decided exactly how far they are willing to go in protecting health rights, and it may be the case that litigating health rights will produce a far different tradeoff than simply including health rights in legislative decision making. Either way, the net system-wide effect of choosing one mechanism of rights enforcement over the other is likely beyond the reach of an empirical investigation at least for claims with substantial spillover effects. The point here is simply to advert to the (perhaps obvious) fact that determining the distributive effect of SE rights litigation is a difficult and complicated task, one that goes beyond simply counting who wins cases and how much it costs to comply with those rulings. The crucial point is to urge caution in how research results are framed, and what they are taking to mean for the broader enterprise of social and economic rights enforcement. We know very little about the actual effects of this, and we should not take 12

partial views of limited interventions as evidence of what the whole looks like. In what follows, we will make the case for breaking SE rights litigation down into discrete categories, present a framework for understanding the effects of SE rights litigation, develop different expectations about the effect of different kinds of cases, and propose what we hope is a reasonable balance between tracking down every last possible indirect effect of litigation an impossible task and taking an overly narrow view of its effects that, in effect, loads the dice against the positive distributive potential of SE rights litigation. Varieties of social and economic rights litigation To begin with, we want to present a typology of SE rights cases that is useful in exploring the question of the redistributive effect of litigation. The typology is taken from our previous work, is more fully developed there (Gauri and Brinks 2008), and is motivated by the vast diversity of cases we found in our fieldwork. Here are some of the kinds of cases that have been litigated under the rights to health and education: to receive medical treatment or medication at little or no cost, expand health programs for migrant workers, prosecute a criminally negligent provider, be informed regarding and have the power to withhold consent for a medical procedure, keep health records confidential, limit excessive pricing for medications, limit the length or extent of patent protection for medications receive reimbursement or financing for a specific procedure under terms of a private insurance contract, limit pollutants in the environment, require local or national government to spend more on education, challenge whether a school has sufficient infrastructure to increase enrollment, limit the fees that schools can charge at the beginning of the school year, challenge competency testing in a particular language on 13

grounds that it is discriminatory, require schools to have functioning water or electricity service, open a private school that includes a religious affiliation, disallow corporal punishment in an independent school, and require a public school to accommodate students with disabilities. Reviewing these cases, it is immediately clear that although social and economic rights litigated in courts have included claims for direct state provision of health care or education goods, courts have applied formal social and economic rights to a much wider set of actors, and in so doing have delineated duties and liberties for which a variety of specific actors, and not (or, in some cases, not only) the state, are legally accountable. In fact, as the country chapters in our previous volume demonstrate (Gauri and Brinks 2008), with the exception of Brazil, legal petitions requesting direct state provision form the minority of social and economic rights cases in every country. Broadly speaking, there are three kinds of actors involved in the production and distribution of social goods and services the state, providers, and clients. (Clients are sometimes better described as citizens or recipients.) As analytical terms, the entities the state and clients are relatively clear in this context, but the term providers needs clarification. Generally speaking, providers are those who render social goods and services to clients. In health care, this group includes physicians, nurses, pharmacists, and insurers, among others;6 in education, they include teachers, private school owners, university faculty, and textbook publishers. For other rights, the groups are perhaps less well-defined, but would include groups such as, in the case of housing rights, engineers as well as 6 In cases involving the right to health, we also include in this category the industries and other actors whose activities either support or reduce the availability of goods crucial for health, such as clean air and water. That is, potential polluters are also providers of goods crucial to the maintenance of health, and have been the target of litigation for this reason. 14

builders, landlords, and the government agency that supervises building and manages public housing. Usually, when courts apply formal rights, they modify the set of legally reviewable duties and liberties that extend from one actor toward another; in figurative terms, they work on the connection between two vertices on a triangle defined by the three key actors the state, providers, and clients. We designate the class of legally reviewable duties and liberties that extend between the state and providers regulation. Regulation here includes duties on the part of the state to license and set standards for independent schools and private health-care providers, liberties on the part of providers to offer particular medical treatments or import particular medications, the states duty to impose environmental standards on state-licensed or state-owned vehicles, the extent of the liberty of independent schools to set their fees or select students, and the criminal liability of medical practitioners and teachers who commit corporal punishment. The crucial characteristic of regulation is that it is an obligation of the provider that runs to and is enforced by the state. Similarly, we call the legally reviewable duties and liberties extending between the state and clients claims for provision or financing. For convenience, we shorten this to provision even though these cases can involve claims for state financing of private provision. These include duties to make public services more accessible to particular classes of individuals (children with disabilities, legally resident non-citizens, etc); duties to increase financing for education or health; and duties to provide particular medical treatments or medications. The crucial characteristic here is that there is a duty by the state to provide or pay for some good or service, which runs to and is enforceable by the client. 15

Finally, we designate the important class of duties and liberties extending between providers and clients, and which clients themselves must enforce, private obligations. These cases most often escape analysis in the literature because of the difficult-to-shake background notion that social and economic rights claims must involve the state. These cases modify the conditions under which independent and public schools can admit, expel, promote, administer tests to, and award degrees to students; the liberties and duties of schools regarding curriculum; the liberties of classes of students to attend particular schools (e.g., the right of students with disabilities to attend mainstream schools); the conditions under which patients can claim compensation for medical malpractice under tort or consumer law; requirements that medical providers treat certain classes of patients, such as rape victims or HIV positive people; and duties on the part of medical providers to protect medical confidentiality and obtain informed consent prior to treatment. This essentially private law relationship between providers and service recipients turns out to be a significant area of social and economic rights litigation, and one likely to grow as the provision of traditional state services is increasingly privatized. With this classification of the kinds of cases we might encounter in hand, we further need a classification of the possible effects of litigation. Earlier attempts to do this, with variously expansive conceptualizations of legal effects, can be found in Rosenberg (1991), McCann (1994), and Rodriguez Garavito (2009). Here, we first develop a broad conceptual map, mostly so we know what we are almost certainly missing, then we limit the actual empirical examination to the more observable areas of potential impact. Analytically, one can distinguish at least two kinds of direct effects and three kinds of indirect effects. The different kinds of effects raise quite different redistributive concerns 16

because of their looser or tighter connection to the initial litigants themselves and their resource endowments. The most obvious effect of a judicial decision, of course, is the direct effect of that decision on the litigants themselves. But there are also the direct effect of decisions on nonlitigants; the indirect effect of early decisions on subsequent legal activity (i.e., indirect effects that are internal to legal settings and depend on subsequent judicial decisions or on subsequent private decisions made under the shadow of the new understanding of the law); and the indirect legislative or regulatory impact of a decision beyond its immediate beneficiaries (i.e., indirect effects that are external to legal settings and result from political or bureaucratic/corporate decisions taken in light of or in anticipation of judicial rulings). Finally, judicial decisions might cause us to re-define particular problems, re-examine their importance, and re-prioritize our policies around them simply by producing changes in the discourse and social understandings around these issues, by redefining the problem as a human rights problem rather than some other kind of problem. It is also important to note, here, that the expected distributive effects of judicial enforcement of social and economic rights and the pathway through which they occur depend on the reach of judicial review. Analytically, the reach of cases depends on whether judicial review is abstract and precedent-setting, or concrete and localized. Of course, the strength of precedent that a given case establishes, whether in a common law or civil law jurisdiction, is a continuous variable, not a binary one; and in fact, judicial systems blend abstract and concrete review in a variety of ways. But we think that the analytic distinction can be useful for assessing the likely distributive effects of social and economic rights litigation. Abstract review, in which we include not only formal abstract constitutional 17

review in the style of the Indonesian Constitutional Court but also the variety of legal procedures that allow claimants to speak on behalf of a larger set of people, such as the Indian Public Interest Litigation, has the potential to broaden the reach of a given distinction, and extend the benefits to many individuals who are not parties to the given case. But there are concerns, on the part of some authors, that that there is something inherent in the language of rights that has a strong regressive bias. It may be because courts are better at negative than positive rights, or because positive rights are inherently less enforceable, or because the individualizing nature of human rights discourse somehow disadvantages the poor, or because the language of human rights somehow plays into a market-based economic model, but in this view something about the language and practice of human rights favors the better off (CITES). Here the concern is that the policy area that courts focus on will not benefit disadvantaged claimants. Concrete review raises equity concerns precisely because the beneficiaries are limited to those who are able to access courts. Here the concern is that the practice of litigation is resource intensive, requiring a fairly sophisticated knowledge of rights, access to lawyers, access to courts, the time and money to litigate and so on (CITES). With this distinction in mind, as well as our typology of social and economic rights litigation cases, we can proceed to the discussion of the expected distributive effects along our five dimensions of impact. Direct effects for litigants are most closely tied to those litigants resources, of course, and are most likely to produce both beneficiary and policy- area inequality. To the extent there is differential access to the legal system and there always is, although there are also many palliative measures that can be and are taken to redress this the direct benefits of litigation will be concentrated among those who already 18

have some contact with and access to the legal system. Legal systems can address this by reducing the cost of litigation and by providing public resources for litigation, but it is likely that we can never eliminate it completely. Abstract review has the potential to expand benefits if courts rule broadly, and if the middle classes who bring cases also share services with the disadvantaged. Note, however, that obligations and regulation cases potentially open up the benefits to non-litigants (since disadvantaged individuals, in fact or in potential, utilize services subject to the new forms of regulation and private obligation), but provision cases typically do not. Provision cases, however, also tend to affect much lower numbers of people. The aggregation of thousands of individual medications cases, as in Brazil, Colombia or Costa Rica, can ultimately have a significant impact, but in order to get thousands of cases we have to radically democratize access to the courts (cite to Wilson, others), and that will, by definition, begin to redress the potentially regressive impact of direct effects. The most classic of SE rights litigation, then, in which people sue demanding access to a particular service or good, get it and take it home, is the least likely to push the provision of public goods in a significantly progressive direction. As we just indicated, direct benefits for non-litigants do not depend on having the resources to litigate, but they do depend on sharing the same policy environment as the litigants. Often that means geographic proximity, a similar social class, or both. So, if a wealthy family sues to secure a ramp to their daughters elementary school or to improve services at a hospital, everyone who attends the school or uses the hospital enjoys the benefit of that litigation. But potential beneficiaries must share a school or a hospital with this wealthy family to benefit, and the wealthy seldom share schools with the poor. They 19

sometimes share hospitals with the poor, but they rarely share primary care physicians. Benefitting in this way requires a close identification with the specific issues involved in the original litigation, even if it does not depend on being able to litigate. Depending on the issue at stake, then, the connection between litigant privilege and beneficiary privilege is a little more dilute, but by the same token the numbers of people potentially affected and thus the resources potentially diverted by this litigation is somewhat greater. Again, regulations and obligations cases have the potential to expand benefits to more disadvantaged individuals. Of course, the direct effects of SE rights litigation on non- litigants might be negative if successful claims by litigants divert resources away from others. We will not further discuss this pathway, however, because it is not an effect that we are able to observe. Landmark cases often pave the way for other litigants, by virtue of their indirect internal effects. The South African Constitutional Court in Grootboom, for instance, ruled that all South Africans had a judicially enforceable right to decent housing, and thus that the state had an obligation to provide decent housing to members of a squatter community. This case opened to the door for the enforcement of social and economic rights more generally, even though it took more than a decade to secure decent housing for the winning plaintiffs, some of whom have since died. Moreover, it is frequently used as a defense in eviction proceedings, and arguably had an important effect on the development of emergency housing financing in South African localities (Langford 2011), even though, self- evidently, it failed to create a new South Africa in which everyone has decent housing. The connection between the beneficiaries of these internal indirect effects and the original issue and original litigants need not be all that close, depending on what principles are 20

extracted and applied. Still, future beneficiaries must at least have the same or similar access to the legal system that the original litigants had, in order to make use of the precedent they established. Here the number of people potentially affected goes up again, while the risk of beneficiary and policy area inequality goes down. The mechanism for allocating these benefits, however, is still the court system, so to the extent the intervention of courts is likely to produce beneficiary inequality, that possibility remains here, while the principles established will more naturally find application in similar issue areas, so that a risk of policy area inequality is also present. Similar lines of reasoning apply to provision, regulation, and obligations cases. Fourth, there are many instances in which judicial decisions were then incorporated into formal public policy by the action of either the legislature (laws amended) or the executive (new practices, rules and regulations crafted). In the book (Gauri and Brinks, 2008: pp.24-25) we expand on the reasons to expect this sort of outcome. Here, suffice it to say that it is not at all uncommon to find that sort of expansive compliance with judicial decisions. The key difference for this sort of indirect effect is that the mechanism for extending the benefits of litigation is no longer the judiciary. The benefits are now processed by the ordinary legislature and provided through the normal bureaucratic apparatus of the state. Any problems with beneficiary inequality, therefore, can no longer be attributed to the impact of SE rights litigation, but rather to the ordinary inequalities that already exist in the provision of public goods. For example, the Indonesian Constitutional Court ruling on education financing required legislative action to expand the budget envelope for public schools, but because all strata of Indonesian society utilize the public education system at the lower levels, the redistributive effect was not strong as it 21

might have been in a different environment. These effects are, however, likely to reach the greatest number of people, and thus to produce the most significant distributive impact. And, as in the previous category, depending on how far legislators and bureaucrats are willing to abstract principles, the issues are stake are likely to remain fairly closely tied to the initial concerns of the litigants. It is here, therefore, that the danger is greatest of shifting the states attention away from the concerns of the poor, toward the concerns of the better off. The extent to which the poor actually lose, because the wealthy win remains a complicated question, as noted earlier, but ceteris paribus the concern is greatest in this area. Finally, the discursive effects of SE rights litigation are like the last but more so. They could change the orientation of politics in an entire country, over many years, and affect all aspects of policy making, so they have the potential for drastic redistributive effects. In order to have any real world effect at all, however, they have to be filtered and processed through the ordinary politics and policy-making processes of the country. The discursive effects of abstract review are likely to be larger than review that limits findings of unconstitutionality to particular instances. One practical consequence of this is that it will be very difficult to attribute any resulting change in the distribution of public goods to the litigation itself, rather than to broader political movements that draw on, amplify and make use of this discursive change. On the more theoretical level, the effects themselves are likely to reflect the distribution of political and social power, washing out the regressive (or progressive) effects of the litigation per se. Given these practical and theoretical concerns, we do not examine this area of potential effects at all.

22

What are the implications of this reasoning? The first is that the areas where it is easiest to measure the distributive effect of litigation direct effects on litigants are at the same time the places where effects are most likely regressive and most likely trivial in the overall public policy context. Moreover, when we look at the kinds of SE rights decisions we encounter in the real world, we find that vast swaths of the landscape do not raise this concern at all. The regulations cases by definition benefit all those who are affected by the regulated provider, without regard to litigating capacity. The private obligations cases are more likely to generate effects akin to what we called indirect internal effects, in that they may require beneficiaries to use the courts to enforce the new obligations, but even here the risk of beneficiary inequality is reduced. If you use a doctor, you benefit from the change in privacy, informed consent, medical malpractice and other rules. If you use a school, you benefit from the change in due process requirements before expulsion, the rules for increasing tuition and the like. You have to share a policy environment, but you do not have to have the same level of legal resources that are required to litigate the initial claim that somehow the mutual rights and obligations in that relationship are out of balance. The second implication flows from the first: we should be most concerned about the harder to measure indirect effects of SE rights litigation because here the distributive impact is most likely greatest. There is a trade-off, however, in that these are the effects least tied to the endowments of the actual litigants, so the expected net effect of these countervailing tendencies is not obvious, and the presumption against SE rights litigation is perhaps unwarranted. The third implication is that the crucial concern is not so much the paradigm of concrete review and beneficiary inequality although that is demonstrably 23

present in many of our cases but rather abstract review and policy area inequality, In other words, there is the possibility that, as courts become more and more involved in the allocation of the goods that are the subject of SE rights, the state will turn more and more away from the concerns of the poor and toward the concerns of at least the middle class. This is, in the end, the challenge we take on most directly. We will briefly tally the socio-economic status of the litigants. But more important to the overall distributive effect of litigation is the indirect impact. In order to examine the consequences of this impact, we identify the areas in which the results of judicial decisions generalized to broader populations, and we determine as best we can the socio-economic composition of the beneficiary class. In the next section we first summarize the results of the initial investigation in all five countries, then deepen the inquiry in four of the five countries, Brazil, South Africa, Indonesia and Nigeria. (India will be added in the next draft of this paper). Direct on litigants Concr Abstr ete act Direct on non- Indirect legal litigants Concr Abstr Concr Abstr ete act ete act Indirect political Concr Abstr ete act Discursive Concr ete Abstr act We summarize our theoretical expectations with the table below.

Provisi - + - - - + +/- + - + on Obligati - + + + +/- + + + - + ons Regulat - + + + +/- + + + - + ion Cells show expected distributive effects (+ means disadvantaged beneficiaries likely to benefit) 24

Qualitative findings If we simply look at who sues, it seems quite clear that, with important exceptions, the direct beneficiaries of litigation typically are neither the most disadvantaged nor the wealthiest citizens. On the one hand, the truly wealthy withdraw from public services and rarely use litigation to seek public goods. They benefit primarily when they use courts to block state nationalization of private goods when the state seeks to close private schools and universities in Nigeria or minority language schools in South Africa, for example. There are a few cases that could be seen as attempts to use the language of rights to insulate the wealthy from redistributive policies enacted by representative policy makers minority language education cases in South Africa, litigation challenging the quota system for higher education in India, and corporate attempts to use the courts to resist anti-market drug policies in South Africa. But these attempts have met with mixed success at best; they often delay implementation but ultimately fail. There is virtually no evidence that wealthy elites are hijacking courts or the discourse of SE rights to preserve their status. At the other extreme, there is little evidence of legalization coming from or directly benefiting the deeply marginalized. The destitute, the truly marginal and remote who have little or no access to public health and public education, also have little access to public legal or judicial services or to organized civil society. The rural population of Nigeria, the remote villagers of Indonesia, the slum and shantytown dwellers in all these countries, and the inhabitants of the rural northeast of Brazil are relatively absent from the roll of litigants. The northern Nigerian state of Kaduna recorded no cases at all seeking to vindicate SE rights. There is, perhaps, only one deeply marginalized and politically powerless group that consistently benefits from judicial protection the imprisoned. The 25

courts have typically been quite solicitous of their claims, either requiring the state to provide health benefits directly, as in South Africa, or at minimum requiring that they be released to pursue their own private health care (though some of the prisoners released for health reasons in Nigeria were, in fact, influential political elites). But this is the exception that proves the rule. This is a population that is, by definition, in contact with the legal system and, therefore, that has more of an opportunity to present a claim. As to the rest, it is to some extent self-evident that a person who has little or no access to state educational or health services will have limited access to legal and judicial services. Litigation, then, is an unlikely bootstrap for raising oneself from absolute need. Most of the direct activity, as a result, comes from somewhere in the middle of the social spectrum. Cases of all kinds, in all the countries our collaborators examined, are concentrated in wealthy rather than poor states; this is clearly true in Brazil, India, and Nigeria, as already discussed. Similarly, in India and Brazil, where information was available, cases were concentrated in urban, not rural, areas. Litigants also tended to be middle class. In India Provision and Obligation cases tended to involve those who had government jobs or private health insurance; in Brazil, a number of litigants were using privately retained attorneys, and many other middle class litigants were using free public legal services under the expansive definition of indigence used in many states. Even the difference between levels of litigation in health versus education can be explained this way. The middle and upper middle classes have largely abandoned public education, but they still rely on public health services, especially for tertiary care and certain pharmaceuticals; education litigation focuses not on basic education, where the middle class is absent, but on higher education, where we still find wealthier students. The primary direct beneficiaries 26

of legalization, then, are likely to be the middle class residents of modernized, urban settings who have at least passing knowledge of legal procedures and access to legal processes. And, for the same reason, there appears to be a tendency to emphasize issues that matter to these groups. There are, however, significant exceptions to this pattern in both health and education policy. In Brazil, public defenders and sometimes public prosecutors undertake medication cases for the direct benefit of the least privileged. Their success rate on behalf of indigent plaintiffs in individual cases, especially at the implementation stage, may be higher than that of the middle class, as Hoffman and Bentes point out. In South Africa, Grootboom was brought on behalf of a squatter community; the social grants cases were brought on behalf of the disabled and those with dependents; and the Treatment Action Campaign mounted an important litigation campaign on behalf of all those living with HIV/AIDS, who are, Berger points out, heavily stigmatized and disproportionately poor. The South African, Brazilian, and even Nigerian courts have taken a clear stance in favor of critically ill prison inmates. The Nunukan litigation in Indonesia, although formally unsuccessful, nevertheless produced important benefits for thousands of homeless migrants stranded in a refugee camp on a remote island near Malaysia. All these cases were undertaken with private charitable or public support and benefited some of the most marginalized populations in each country. We see similarly important exceptions in the education area. In India, one of the critical interventions of the courts in the education area was the expansion of the free midday meals program, whose benefits accrued most importantly to the most needy, and which has drawn disadvantaged children, especially poor girls, into the educational system. 27

In Indonesia, the courts signature interventions have sought to increase funding for public education, which in principle benefits all school-age children regardless of income and may improve services in the neediest areas. To the extent it fails to produce a more egalitarian public education system, it will not be the fault of the Indonesian courts but of the representative branches who translate the budgetary mandate into actual programs. It is clearly not the case, then, that the direct effects of legalization are limited to the elites or even to the middle class. With support from state legal aid offices or organized civil society, marginalized populations often receive benefits they would otherwise be denied. But whatever the direct effects of legalization, they are vastly overshadowed by its indirect effects. Those affected by public-policy initiatives triggered in one way or another by litigation vastly outnumber the people who benefit directly from the execution of a targeted judicial remedy. Drawing on data about the impact of legalization we divided our estimate of the number of people who benefited indirectly by litigation by the number of people who obtained a direct judicial remedy to get the ratio of indirect to direct beneficiaries, see Table x: Health Brazil India Indonesia South Africa Nigeria Clearly, the civil law system in Brazil means less generalization of the benefits of legalization. Even there, however, in the health rights area nearly twenty similarly situated 17 13,195 201 521 8 Education 1 1,696 42,775 51 309

28

people benefit for every one that can bring a claim. The more public-policy, erga omnes- oriented jurisdictions like India or South Africa produce vastly higher levels of generalization and therefore produce benefits for many more who may not have the resources to litigate. The high numbers for Indonesia in education are the result of series of decisions that led to a significant increase in the percentage of the national budget allocated to education. More qualitative evaluations tell a similar story. AIDS litigation in Brazil was spearheaded by the relatively well-off and still originates primarily in more affluent states, but the innovations introduced by the judiciary were quickly incorporated into the public health system and spread to many others who have never brought a legal claim. A prolonged series of private cases regarding more than one hundred medications in Rio de Janeiro eventually led to a successful Public Class Action brought by prosecutors that made the same benefits available to all who have access to the public health system. A similar pattern has recently emerged in the southeastern state of Rio Grande do Sul, where the Public Prosecutor has entered into an agreement to monitor the implementation of medications policies throughout the state. Litigation prompted the Indian government to create an antiretroviral distribution program to benefit at least ten thousand AIDS patients; and litigation compelled the South African government to roll out its antiretroviral AIDS treatment program much sooner than it would otherwise have done. The incorporation of court rulings into the national normative framework quickly led to effects that reach far beyond the initial litigants, washing out the effects of differential access to courts. There is evidence of considerable indirect effects even when legalization is otherwise weak. When a few university students managed to work their way through the 29

legal process in Nigeria to gain due process rights in expulsion proceedings, the ruling prompted that and other universities to adopt similar standards for all expulsion proceedings. Although Grootboom did not lead to a long-term solution to the housing needs of the Wallacedene community, it led to the establishment of emergency housing funds in many municipalities and was used to protect large numbers of informal settlers from eviction orders. Clearly, the indirect effects of our cases appear to have a much more egalitarian effect than we might have feared. The key point, again, is that indirect effects are much less tied to the initial endowment of the claimant. As all the examples in the previous paragraph suggest, the results of broad-based patterns of litigation claiming individual remedies, as well as of particular cases asserting collective rights, are often picked up by the other branches and converted into public policy through legislation or other modifications to the legal framework. The results of regulation cases generalize almost by definition. Once the results generalize through the ordinary public-policy mechanisms, of course, they are subject to the same advantages and disadvantages that exist in the public-policy system already. The Brazilian public health system spends more and is stronger in wealthier southern cities than in northeastern rural areas; leakage in Indian anti-poverty schemes is notorious; and many Nigerian students remain at the mercy of powerful social and political patrons regardless of official university policies on due process. But to the extent these results are unequally distributed, this is a function of the policy structure and policy biases already in place a function, in other words, of the ordinary politics of the country, rather than a consequence of the nature of litigation.

30

But is it the case that legalization draws the attention of the policy machinery to the preferred issues of an elite group or a privileged minority? If so, the universalization of judicial decisions is precisely the wrong direction to take. Many of the examples found in our earlier research clearly raise this concern. We find that litigants, and therefore courts, disproportionately focus on more specialized, more advanced levels of health care and education, on formal rather than informal sector beneficiaries, on private rather than public school choice of schooling, on equal protection to promote the interests of Afrikaners and higher castes rather than for the excluded. On the other hand, we also find examples of cases and policies that benefit the marginalized: midday meals in Indian public schools, clean water for the urban poor in Delhi, effective treatment for the millions living with HIV/AIDS in South Africa, a safe blood supply for anyone seeking emergency medical care in India. There have been strong rulings in favor of social assistance rights in South Africa. There have been cases on health services for homeless refugees in Indonesia and education rights for asylum seekers in South Africa. And there have been rulings against child labor, in favor of more teachers in public schools, in favor of price controls, and against stronger patent protections for drug manufacturers in India and South Africa. These are far from the pet projects of economic and social elites. It is hard to calculate the net effect of all these examples, especially when we consider the programs that go unsupported by litigation campaigns: unheralded epidemics of malaria and childhood diarrhea, high rates of health worker and teacher absenteeism in Indian clinics and schools, shockingly low quality education in Brazil, and the like. At the same time, the protection of privilege cases tend to lose, and those that win tend to benefit a mere handful of people it is difficult to find a single example of a patently pro- 31

elite decision that generalizes to produce significant indirect effects. On the other hand, the cases that benefit the poor tend to extend to a vast number of beneficiaries. At least on its face, these findings surely call into question the assumption that courts, in the social and economic rights area at least, are the instrument of elites, for the conservation of privilege. Are these benefits to the poor the exception or the rule? Can we draw an overall conclusion about the tendency of litigation to produce a more or less egalitarian distribution of health care or education goods? A rough overview of the cases with the greatest impact, suggests the poor are at least as likely to benefit. Cases like the Indonesian school funding cases, the South African nevirapine case, the Indian cooked midday meals cases seem to benefit most those who fall far below even a middle class standard of living. But to make a definitive claim we need to go beyond examples and anecdotes, and compile some actual numbers. We turn to this next. Quantitative findings We base our findings on a five-country study of health and economics rights litigation. The five countries that are the subject of this paper include common law countries with records of aggressive (India and South Africa) and limited SE rights litigation (Nigeria), and civil law countries with aggressive (Brazil) and incipient (Indonesia) litigation. They include countries with (by global standards) recent and old constitutions, and countries with varying years of democratic experience. Judicial review is abstract and centralized in Indonesia; concrete and diffuse in India, Nigeria, and South Africa; and a blend in Brazil. The countries also vary in levels of national income and state capacity. We hope to draw on this variation to answer questions about the social, economic, 32

political, and institutional conditions that affect the distributive effect of SE rights litigation. The cases examined all involve the right to health and health care, and the right to education. These two issue areas provide further within-country variation on dependent and independent variables. The estimates of distributive impact in the tables below involve counts of the numbers of people whose lives were significantly affected by the court rulings. It may have been possible though challenging to aggregate across cases involving different kinds of benefits (e.g, decreases in mortality and morbidity, more years of schooling) using a common metric (e.g., disability adjusted life years in health, returns to education, pecuniary measures of the value of human life), but we have not done so here. The data were assembled on the basis of a review of the secondary literature on policy interventions: we collected no original data ourselves. Putting together tables such as these requires certain assumptions, of course; but we believe that the assumptions are defensible, and where alternative assumptions were available, we have tried to use the more conservative estimate for the number of people affected by court decisions. The calculations constitute an appendix to the paper and are available from the authors. To illustrate how we went about making the inferences, consider the TAC case from South Africa, in which the Constitutional Court enjoined the government to provide nevirapine to prevent mother-to-child transmission of HIV. The South African health economist Nicoli Nattrass (2004) estimated that around 110,000 cases of HIV would have been averted from 2001-2005 had the state aggressively rolled out PMTCT in 2001 at 10% coverage and ramped up to 90% by 2006. Her model assumed a somewhat more aggressive form of treatment (AZT rather than single dose nevirapine), and the actual roll 33

out, when it occurred in 2004, was relatively slow. On the other hand, the number of HIV cases was growing, so more women were eligible when the program treatment was eventually rolled out; and Nattrass estimate is limited to five years only, without any knock-on effects for other kinds of AIDS care. Still, we choose to halve her figure, and come up with the estimate of 55,000 infections averted as a result of the court ruling. For the distributional question, we rely on an a study that in 2002 that found that, of households with one member having AIDS, 60% had household incomes less than SAR500 per month (USD200).7 The tables below all rely on evidence and reasoning of this sort. The data sources

and reasoning are assembled in an Annex available from the others. Brazil In Brazil, the initial book project identified over seven thousand cases in the four samples Brazilian states (Rio de Janeiro, Rio Grande do Sul, Bahia, and Goias), the great majority of which involved claims for medications. Data were available on the judicial decision, but no good compliance study was available. Most of the qualitative literature on the judicialization of health in Brazil, however, describes how after a significant number of cases for a particular medication, the states stop opposing judicial claims for that medication and begin supplying it routinely. We used the qualitative evidence to argue that half of the wining cases contribute to a generalization in policy, and that each time a medication is generalized, some fifty users of the public health system who were not litigants benefit (probably an underestimate). For the specific case of AIDS drugs, the level 7 See http://www.kff.org/southafrica/20021125a-index.cfm. AIDS incidence is not the same as HIV incidence, but the latter is not easily observed at the population level. It is arguable that using AIDS may over-represent the higher income individuals because they were more likely to have been infected at an earlier phase of the epidemic. 34

of generalization was higher because the treatment program was managed federally, and it reached a larger share of people who needed treatment. For purposes of the present paper, we relied on a study that found that 69% of users fo the public health system are in the lower three income quintiles (and have family incomes less than $200 per month). Table 2: Distributive impact of health and education litigation in Brazil:
SUS meds Total N 48590 % underprivileged 0.69 N underprivileged 33527 Assumptions Underprivd = under $250/month (p/c family income). Assumes benefits are randomly distributed among SUS users shd be modified by epidem data on sicknesses litigated Underprivd=up to 1o Grau of education. Assumes benefits randomly distributed among HIV/AIDS patients receiving treatment Underprivd= up to 1o Grau of education. Assumes benefits randomly distrib'd among people with insurance. Underprivd=under $140/mo (p/c fam income). Misses all the MP actions requiring states and municipalities to devote constitutional % of budget for ed Underprivd=under $140/mo (p/c fam income).

HIV/AIDS

170150

0.65

110884

Insurance contract modificati on public school regulatio n & obligation s private school reg and oblig Total impact

13707

0.42

5784

40000

0.80

31952

400 272847

0.20 0.67

80 182228

Our estimate of the impact of the SUS medications litigation in some ways overstates the positive redistributive impact of this litigation because there is a significant segment of the Brazilian population (estimated to be 25% in the late 1990s, though that has likely fallen), that is largely excluded from public services, including the health system. So although it is fair to say that some 69% of the beneficiaries of litigation earn less than $200

35

per month in family income, the lowest quintile is likely excluded from much of the benefits. To provide an alternative measure of the impact of SUS litigation, therefore, we can take the data used by Da Silva and Terrazas, and re-interpret it drawing a very different conclusion from theirs. Perhaps the most interesting finding of their article for our purposes is that, in terms of income, the surveyed population is exactly representative of the overall population of Sao Paulo. In addition, the proportion of cases originating in public hospitals and the proportion of respondents who use the public health system exactly mirror the proportion of the population that does not have private health insurance (n.22). In other words, the poor and the wealthy, those who use private or public health care, find a voice in the courts that is exactly proportional to their representation in the general population. Moreover, if we look at the income of those surveyed, we find that 61% of those who get court ordered medications make less than $8000 USD/year. This suggests that, even if the courts do not reach the poorest of the poor, they are at least reaching significantly far down the income ladder (p.45). Even more, we find that the poor win 100% of their cases, while the upper class (measured how?) only win 75% of the time. From all this we could come to a conclusion quite different from the authors: at least in So Paulo, in the context of medications litigation, the poor and the rich access the courts in proportion to their presence in the population, but the poor win more often. The authors rest a great deal of their final conclusion on the oncology subsample. But this subsample is composed of only 32 cases, and may not warrant the final conclusion

36

anyway. The overall data in the article suggests that, in fact, the wealthy tend to sue for the more expensive benefits, while to poor sue for less expensive services and goods. What we can conclude from this, of course, is that the rich dont bother suing for things they can easily afford, but they do sue for things that would significantly affect their pocket books. Moreover, if we exclude the 8 people making more than 5 minimum wages, we find that 68% of those in the oncology group make less than $13,200 USD/year. In Brazil that may well be middle class, but even in Brazil this group does not belong to anything we might describe as elite, the most privileged or even upper class. The most we could conclude from this is that SE rights litigation certainly benefits the middle class like pretty nearly every other social assistance program in the world but is surprisingly open to lower income claimants as well. [MORE HERE ON THE OTHER BRAZILIAN CASES] South Africa In South Africa, the number of health and education rights cases was small enough that impact could be traced case by case. Given the lower number of cases, we can also see, in the table, the cases that did not have far reaching impact, and those that might have actually had a negative impact. The results for South Africa, despite the vast differences in legal system, issues litigated, types of plaintiffs and nature of the litigation support structure, are strikingly similar to those for Brazil: more than two thirds of all those benefited by these decisions fit some definition of underprivileged. [MORE ON SOUTH AFRICA]

37

Table 3: distribution of benefits in South Africa

Name of case Afrox Healthcare Van Biljon TAC Interim procurement Description of case/benefits N benefite d 0 57600 55000 305600 % und erpr iv'd 0 100 60 60 # underpriv 'd 0 57600 33000 183360

Westville Soobramone y Du Plooy

Hazel Tau New Clicks PMA

Affordable Medicines Matukane Wittman

Hospital can enforce waiver, to avoid liability for damages due to negligence HIV + prisoners entitled to treatment HIV + pregnant women and their children entitled to PMTCT Gov must speed drug purchasing for all those who need ARV treatment (estimated at 764K in mid 2006; about 40% receiving treatment). Right to ART for prison inmates - decision lacked implementation Right to dialysis: Soobramoney is an individual case - the plaintiff died Terminally ill prisoner has the right to med treatment and to release in order to die with dignity Access to generics for HIV infected citizens of South Africa regulates fees pharmacists charge their customers; implentation delays void effect Facilitates entry of generics for S.Africans who cannot afford meds at market, but implementation delays void effect Same as above. Black children granted access to a largely white school private school that received state funding may require students to partake in religious observances and instructional classes school may continue Afrikaans- only education (given alternative options for plaintiffs) Allows suspension of subsidies for state-aided schools

"underpriv'd" = prisoner underpriv'd = <$200/mo household income underpriv'd = <$200/mo household income

0 0 0

0 0 0

0 0 0

119000 0 0

60 0 0

71400 0 0

underpriv'd = <$200/mo household income

0 2 0

0 100 0

0 2 0

underprivd = Black school child seeking access to white school

Mikro Oranje Vrystaatse Vereneging

0 0

0 0

0 0

38

Gauteng School Education Bill Premier Mpumalanga ED-UCollege

Protects consititutional right to schools based on a common culture, language, or religion Strikes decision to end subsidies for poor children in mostly white schools Allows reduction in state subsidies to independent schools

500

100

500

Subsidies are designed solely for underprivd children

Thukwane

Watchenuka

Harris

Christian Education Bel Porto

Laerskool Middelburg Total

allows "reasonable" restrictions on prisioner access to education School age asylum seekers entitled to education (3/4 of all eligible attending by 2009) Cant use age to exclude otherwise qualified children from school (6 yr-old can attend) allows government to limit use of corporal punishment in religious schools contemplates need for due process in firing ed sector e'es but permits firing in these cases failure of school to comply with state mandate to teach English to a group of students

68500

100

68500

underprivd = asylum seeker pending decision

0 0

0 0

0 0

606203

68.35

414362

39

Indonesia The most consequential case from Indonesia involved the funding of education. We

estimate that some 750,000 students received significantly better schooling as a result of more financing. (This is likely an underestimate since some 50 million students were enrolled in primary and secondary education). Of these, some 46% were underprivileged. The standard here for underprivileged was based on the share of the population earning less than $2 per day. The relatively low share of underprivileged in Indonesia reflects the fact that public schools are typically better than private schools and attract students from all social classes. Name of case(s) Description and demographics of those affected N affected % N underprivd underprivd

026/PUU-III/2006: Judicial Review of the 2006 Budget Law Increased government 011/PUU-III/2005: funding for education, Judicial Review of the impacts both public National Education and private school System Law in the students due to Constitutional Court government subsidies for private schools 012/PUU-III/2005: Constitutional Court Judicial Review of the 2005 State Budget Law 28/Pdt.G/2003/PN.JKT. Accusations of neglect pusat: of migrant workers Indonesian Ctizens v. deported from Malaysia the Republic of and housed in poor Indonesia conditions Nunukan 007/PUU-III/2005: Allowed local Judicial Review of the governments to National Social Security continue providing 40

750000

46.4085%

348064

25000

40%

10000

10000

30%

3000

System Law in the social security schemes, Constitutional Court by impacted assumed to East Java Legislative formal sector Council employees making below minimum wage Health complaints due to high tension power 35/PDT.G/1994/PN.JK wires constructed in T.PST: residential areasstill People of Keomas vs. awaiting decision, but Director of PLN and the resulted in policy Republic of Indonesia changes Pollution of Buyat Bay 406.PdtG/2004/PN.Jaks sparked health el: problems among The People of Buyat v. residentsgovernment the Republic of promised free Indonesia Government medication and relocation of families Negligence in 13/Pdt.G/2005/Pn.Cbd: production and Opik v. Republic of distribution of polio Indonesia Government vaccine to children in Cidahu 21/G.TUN/2001/PTUN -JKT: Legality of suspension Petition to nullify of protesting Administrative Action studentsno relevant of the Presdent of the policy implications University of Indonesia PTJ.PDT.425.837.2004: The Melawai Junior High School Case 41/Pdt.G/2005/PN.Bek 2 cases where court asi: ruled against claimant Iwan Pahriwan v. Dr. Ottman Nasution, Karya Medika Hospital and the Republic of Indonesia Government 42/Pdt.G/2005/PN.JKT. PST: 1 case rejected by court Manteb Mulyono v. dr 41

5000

9.4%

470

200

70.7%

140

100

28%

28

Amir Toib and the Republic of Indonesia TOTAL

790300

45.77%

361702

42

Nigeria Our Nigeria sample included all available social and economic rights cases in the states of Lagos, Rivers, and Kaduna. The overall number of beneficiaries in Nigeria is low because courts there are generally unreceptive to social and economic rights litigation, judges welcome interlocutory appeals and other maneuvers to avoid hearing cases on the merits, and as a result claimants have not brought many cases to the courts. In addition, of the countries in our sample, Nigeria had the lowest share of underprivileged beneficiaries out of all the countries. This is likely because, as Odinkalu (2008) put it, judges there typically granted rights in education and health rather than rights to health education and health. These included cases to prevent nationalizing private schools in Lagos and providing due process rights for university students. Given the socio-economic makeup of the private school and university populations, these tended to benefit relatively more endowed claimants. Description and Name demographics of those affected 1981: blocked nationalization of Adewole and others schools, affected vs. Alhaji Jakande and students enrolled in others private school Changes in university Garba vs. University of due process standards, Maiduguri other cases also involved university conduct, (+6 other cases) ultimately dealt with due process claims Festus Odafe and Medical care and others vs. AG reasonable conditions for Federation and others very ill HIV+ inmates 43 N affected % N underprivd underprivd

72000

25%

18000

5000

10%

500

600

100%

600

 Odoh Nwopeh vs. Nigeria Prison Service Protected right to establish private universities, but the military government shut down private universities in the following years regardless Ogoni grievances about degradation of the environment, resulting in poor living conditions

Dr. Basil Ukaegbu vs. Attorney General of Imo State

525

10%

53

Social and Economic Rights Action Center vs. Nigeria

500

58%

290

Mohamad Abacha vs. the State Multiple cases dealing Fawehinmi vs. State with granting bail to pretrial detainees in poor Federal Republic of health. Nigeria vs. Danjuma Ibrahim and other Ishmael Azubuike and Right of mentally ill others vs. AG of the inmates to treatment Federation and others 16 cases where court ruled against plaintiff 16 cases with no impact beyond case TOTAL India [TO BE ADDED] Conclusion

400

100%

400

300 0 0 79325

100% 0 0 25.53%

400 0 0 20243

In summary, for all the sound theoretical reasons to expect litigation to be an elite game, the evidence does not support a finding that only the better off benefit. In fact, in

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many of the categories, the primary beneficiaries of the cases in our sample were the underprivileged. When we examine the socio-demographic characteristics of the people benefited in our sample of cases, we find that approximately two thirds of them are likely to be poor, uneducated, Black, or otherwise underprivileged in some significant way. It is true, then, that litigation does not target primary health care, but not true that it does not target primary education. It is true that many of the cases are brought by middle class people or people who fit some definition of privilege (such as the white Afrikaans-speaking population of South Africa), but not true that these cases dominate, either in number of cases or number of beneficiaries. This is strong prima facie evidence that human rights litigation on behalf of social and economic rights is not inherently regressive. It is possible to conduct a further analysis of the distribution of benefits by type of case in order to test our hypothesis that the different kinds of social and economic rights litigation have different distributive consequences. In the table below, we disaggregate the share of beneficiaries according to our tripartite typology of SE rights cases. Along with much of the literature, we expressed a concern that the standard SE rights case, a claim for direct provision of goods and services, would potentially be biased toward relatively advantaged beneficiaries. The evidence here suggests that that may not be the case. This finding is driven partly by the fact that provision cases have indirect effects on the provision of goods to other citizens (as in medications in Brazil), and partly by the fact that abstract review can widen and deepen the reach of state-sponsored redistributive schemes (such as public health in South Africa). Regulations cases were similarly favorable to the underprivileged, as we expected (WE EXPECT THIS NUBMER TO INCREASE WHEN INDIAN CASES ARE ADDED IN MORE HERE). Finally, obligations cases seem to reach fewer 45

numbers of underprivileged beneficiaries, primarily because the indirect effects of cases that change horizontal rights obligations seem to be limited to the formal sector, where advantaged classes predominate. [MORE HERE]
Provision Regulation Obligation
Nigeria Indonesia South Africa Brazil India

N beneficiaries 500 775000 487200 258740 1521440 400 15200 119000 134600 78425 100 2 14107 92634

N underpriv'd 290 358064 342960 176363 877677 400 3610 71400 75410 19453 28 2 5864 25347

% underpriv'd 58.00% 46.20% 70.39% 68.16% 57.69% 100.00% 23.75% 60.00% 56.03% 24.80% 28.00% 100.00% 41.57% 27.36%

TOTAL

Nigeria Indonesia South Africa Brazil India

TOTAL

Nigeria Indonesia South Africa Brazil India

TOTAL

This does not, as noted at the very outset, answer all the questions we might want to

ask. In order to determine whether using the courts is more or less regressive than appealing to the legislature, we would now have to perform a similar analysis of the beneficiaries of legislative decision-making in the areas of health and education, perhaps 46

looking at the same time frame. We might wish, for example, to compare this outcome to the existing socio-economic profile of beneficiaries of public policy programs in Brazil and South Africa and to the distributive effect of legislative decision-making since the advent of democracy. We know from other research that education policy in Brazil (as in the rest of Latin America) has traditionally been strongly regressive, because of the emphasis on free tertiary education, and that democracy has begun to redress this pattern (Brown and Hunter 2004). At the same time, analyses of public spending in Brazil across a variety of issues including health and education show that this positive redistributive impulse did not come at the expense of spending on programs that are near and dear to the more privileged (Hunter & Sugiyama 2009:48-49). Given the results detailed above, it seems likely, therefore, that there will not be a dramatic difference in the redistributive effect of recent legislative and judicial decision-making. Next steps: - break down these estimates into different categories to see if they match our expectations. E.g., are provisions cases more regressive, are individual cases more regressive, are indirect effects more progressive? - Identify and defend some of the assumptions in the initial measurement of the impact. - Re-visit the impact calculation in some categories, especially in the education field.

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Expand the comparative discussion: how does this compare to users of the SUS in Brazil/public health in South Africa? How does this compare to other instances of public policy decision-making? Can we exploit variation more, to see if certain areas are more prone to regressive effects?

Others?

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References: [TO BE COMPLETED] Bergallo, P. (2005). Justice and Experimentalism: Judicial Remedies in Public Law Litigation in Argentina. Seminario en Latinoamerica de Teoria Constitucional y Politica, Panel 4. Rio de Janeiro. COHRE (2003). Litigating Economic, Social and Cultural Rights: Achivements, Challenges, and Strategies. Geneva, Center on Housing Rights and Evictions. Forbath, W. E. (2007). Social Rights, Courts and Constitutional Democracy - Poverty and Welfare Rights in the United States. On the State of Democracy. J. Faundez. Oxford/New York, Routledge: 101-124. Galanter, M. (1974). "Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change." Law & Society Review 9(1): 95-160. Gauri, V. and D. M. Brinks (2008). Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World. New York, Cambridge University Press. Gauri, V. and D. M. Brinks, Eds. (2008). Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World. New York, Cambridge University Press. Hershkoff, H. (1999). "Positive Rights and State Constitutions: The Limits of Federal Rationality Review,." Harvard Law Review 112(6). Hirschl, R. (2000). "The political origins of judicial empowerment through constitutionalization: Lessons from four constitutional revolutions." Law And Social Inquiry-Journal Of The American Bar Foundation 25(1): 91-149. Langford, M., Ed. (2008). Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, Cambridge University Press. McCann, M. (1994). Rights at work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago, University of Chicago Press. Rosenberg, G. N. (1991). The Hollow Hope: Can Courts Bring About Social Change? Chicago, University of Chicago Press. Courts follow election results Tate, C. N. and T. Vallinder (1995). The Global Expansion of Judicial Power: The Judicialization of Politics. The Global Expansion of Judicial Power. C. N. Tate and T. Vallinder. New York, New York University Press: 1-24. 49

 Wilson, B. M. (2005). "changing dynamics: the political impact of costa ricas constitutional court." The Judicialization of Politics in Latin America: 4766. World Bank. (2003). World Development Report 2004: Making Services Work for Poor People. Washington DC, The World Bank.

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