Tough Times and Weak Review: The 2008 Economic Meltdown and Enforcement of Socio-Economic Rights in US State Courts
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Description
This chapter examines the efect of the 2008 meltdown on judicial willingness to enforce socio-economic rights in the United States. We present three short case studies examining court-based efforts to secure quality public schooling for children, to provide health care to immigrants and to protect homeowners from mortgage foreclosure. Consistent with structural features of US law, we take a localist perspective—the state courts of the US—and so fill a gap in a literature that tends to look at socio-economic rights from a nationalist and internationalist focus. The cases surveyed do not comprise a scientific ‘sample’ and they yielded uneven results, highlighting the vulnerability of socio-economic rights during an economic downturn. Nevertheless, a number of the decisions reflect surprisingly robust efforts to operationalise abstract rights using techniques of dialogue and coercion, and without triggering popular backlash or legislative resistance, notwithstanding the push toward austerity that accompanied the economic crisis. We draw four lessons. Overall, the case studies interrogate the emerging dichotomy between ‘weak’ and ‘strong’ judicial review and suggest instead a complementarity that has theoretical significance for assessing judicial legitimacy, for informing public discourse about taxing and spending, and for encouraging governmental implementation of socio-economic programmes. The case studies underscore the interdependence between socio-economic rights and classical liberal rights to equal protection and due process, as well as the importance of statutory and common-law baselines in judicial attitudes toward socio-economic claims. Finally, the case studies call attention to the countercyclical role of courts with respect to socio-economic rights. It frequently is said that courts play a countermajoritarian role in enforcing classical liberal rights against recalcitrant legislatures. In a similar move, we might say that US state courts have played a countercyclical role with respect to socio-economic rights by preventing legislators from reneging on social-welfare commitments during times of fiscal crisis and economic distress.
Source Publication
Economic and Social Rights After the Global Financial Crises
Source Editors/Authors
Aoife Nolan
Publication Date
2014
Recommended Citation
Hershkoff, Helen and Loffredo, Stephen, "Tough Times and Weak Review: The 2008 Economic Meltdown and Enforcement of Socio-Economic Rights in US State Courts" (2014). Faculty Chapters. 770.
https://gretchen.law.nyu.edu/fac-chapt/770
