Public Law Litigation in the U.s. and in Argentina: Lessons from a Comparative Study

• Publication year: 2015

Public Law Litigation in the U.S. and in Argentina: Lessons From a Comparative Study

Martin Oyhanarte^*

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TABLE OF CONTENTS

I. INTRODUCTION...............................................................................452

II. PUBLIC LAW LITIGATION IN THE UNITED STATES..........................453

A. Racial Desegregation in Schools.............................................454
B. Prison Reform..........................................................................459
C. Overall Assessment..................................................................463

III. PUBLIC LAW LITIGATION IN ARGENTINA.......................................466

A. The Case of Argentina: Why it is Relevant...............................466
B. Institutional Alternatives..........................................................469
C. Prison Reform: Verbitsky........................................................472
D. The Environment: Mendoza.....................................................477

IV. LESSONS FROM THE COMPARATIVE ANALYSIS..............................482

A. Political Conditions..................................................................483

1. Coordination with the Political Branches.........................483
2. Authority of the Judiciary..................................................486
3. Checks on the Judiciary.....................................................489

B. Technical Requirements...........................................................492

1. Legal Regulation of Class Actions.....................................492
2. Agency Problems...............................................................498
3. Flexibility...........................................................................502

V. CONCLUSION...................................................................................504

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I. INTRODUCTION

The Judiciary may follow one of two distinguished paths in promoting social change in countries equipped with strong-form judicial review.¹

First, within the framework of traditional judicial review, the Judiciary may declare a law unconstitutional, establish a precedent, and expect compliance with it in subsequent cases. This is usually accompanied by an award of damages, or some kind of individual redress.

On the other hand, the recognition of economic, social and cultural rights as fundamental rights points to increasingly frequent cases in which the Judiciary abandons a passive stance. In addition to enforcing a right, it finds it must assume an active political role, urging the public authorities to adopt a specific course of action or taking upon itself the management of a specific social conflict. Where a violation of fundamental rights is due to the defective operation of a bureaucratic organization, such constitutional violation "cannot adequately be redressed through monetary compensation."² Therefore, the "need to fulfill the court's remedial duty justifies the use of structural injunctions to remedy public law violations"³ in which the aim is to "restructure public agencies"⁴ and to give "meaning to our constitutional values in the operation of these organizations."⁵

In the United States, the device used by the Judiciary to perform this managerial role has been the structural injunction, issued within the sphere of what is known as "Public Law Litigation." It is a device whereby the court not only strikes down a statute or a public policy as unconstitutional but also retains jurisdiction and seeks to enforce the judgment within the framework of a "polycentric"⁶ conflict. Understanding that conflicts regarding groups or collective rights are ultimately decided in the day-to-day operation of these bureaucracies, the focus of court action is on the future remedy rather than on the enforcement of rights in individual cases.

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In recent years, several countries have regarded the American experience in this field as a path to follow.⁷ Thus, courts in countries like Argentina have adopted an activist approach relying on the prestige of the U.S. Supreme court. However, the actual impact and results of judicially driven reforms are still under debate.

These facts offer us the opportunity to contrast the experiences in both countries to answer a basic question: what are the conditions under which Public Law Litigation is effective?

The aim of this Article is to answer that question using the comparative method. We first seek to describe Public Law Litigation and the use of structural remedies in the United States and in Argentina, aligning similarities, linkages, and differences. Then, the insight gathered will allow us to identify a set of generally valid principles and standards for the effective implementation of these complex procedural devices.

To accomplish these goals, the analysis has been organized as follows:

Part II reviews the experience of Public Law Litigation in the United States and examines some lessons to be learned from its case law.

Part III argues that it is possible and useful to draw a comparison between the American and Argentine legal experiences, establishing the relevant contact points. Then, it describes the cases in which the Supreme court of Argentina has used structural remedies in the context of Public Law Litigation.

Based on this comparative analysis, Part IV identifies and describes the political conditions and technical requirements needed to obtain effective results. This schematic description makes up a model that may prove useful to assess and guide this controversial driver of social change.

Finally, Part V states the general conclusions that may be drawn from this study.

II. PUBLIC LAW LITIGATION IN THE UNITED STATES

Public Law Litigation and structural remedies were born in the United States within the framework of the civil rights cases of the mid-twentieth century. This was the area in which "most courts gained their familiarity with public law litigation," and these cases "shaped how federal courts would cope with public law litigation generally."⁸

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Therefore, we will now focus on the most important milestones in the use of structural remedies in the field of racial desegregation of public schools, and will then make some specific comments concerning the area of prison reform. Naturally, it is impossible to provide an exhaustive account of all of the cases relevant in this regard, so we will consider only those that are the most meaningful for the purpose of this Article.

A. Racial Desegregation in Schools

Apart from some prior use in specific cases, the rise and definitive establishment of Public Law Litigation came with the racial desegregation process in public schools following Brown v. Board of Education⁹ and its progeny. This case is no doubt paradigmatic and a key to understanding the subsequent development of structural remedies in different areas of the law.¹⁰ This holds true not only for the United States but also for many other countries, including Argentina, as Brown came to exemplify globally "the possibility that lawyers could structure and execute a litigation strategy designed to produce substantial changes in the law."¹¹

Still, while Brown is one of the most celebrated cases for its profound moral significance, the specific procedural measures adopted to implement such strategy, and the use of structural remedies by the courts over the years, have also met with heavy criticism.

As is well-known, this famous decision of the Supreme Court came in the wake of a long judicial strategy pursued by the National Association for the Advancement of Colored People (NAACP), which adopted this course of action on numerous fronts of interest to the African-American population. The Supreme Court's holding that de jure segregation violated the Fourteenth Amendment extended to all public educational institutions. It affected the legislation of twenty-one states that required or expressly permitted a segregated educational system at the state level under the "separate-but-equal" doctrine.¹² This doctrine was expressly repealed in Brown, in which it was concluded that "separate educational facilities are

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inherently unequal."¹³ The ruling was a typical declaration of unconstitutionality, with immediate legal effects.

But, as the decision did not explicitly include any kind of "remedy" or practical consequence, the ruling was anything but complied with, and the Supreme court had to issue a new decision to define how to carry out the enforcement duties.

It took one more year to address the issue, and still nothing significant was decided. In the case known as Brown II, the Supreme court ruled that, in view of local peculiarities, the trial courts in each jurisdiction had to deal with this issue; such trial courts were to issue judgments urging public schools to admit students under a non-discrimination standard "with all deliberate speed."¹⁴ In a way, the Supreme court extricated itself from the problem of implementation and "delegated the reconstructive task to the lower federal judges."¹⁵

The stage beginning at this point was marked by the lone efforts of the lower courts, indifference from the other branches of the federal government, and stiff opposition by parts of the local governments in the southern states. From 1955 to 1964, the federal lower courts engaged in intense, wide-ranging activity, while the Supreme court issued at least three decisions in which it emphatically insisted on steering the course originally set.¹⁶ However, in 1963, nine years after Brown I, resistance to change was still substantial; the results were not as expected, and at least two attempts to eschew the desegregation order needed to be halted by a ruling of unconstitutionality.

Thus, in the period spanning from 1954 to 1964, the Supreme court and the lower courts deployed considerable efforts to achieve racial desegregation in schools and the operation of a "unitary" system. But theirs was a single-handed...