Harming the poor through social rights litigation: Lessons from Brazil

Texas Law Review

Volumn 89, Issue 7, 2011, Pages 1643-1668

  Ferraz, Octavio Luiz Motta ^a  

^a UNIVERSITY OF WARWICK   (United Kingdom)

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EID: 79960976315     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (152)

1. See WOJCIECH SADURSKI, RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN POSTCOMMUNIST STATES OF CENTRAL AND EASTERN EUROPE 177 (2005) (including a categorical listing of constitutions that include various socioeconomic provisions)
2. Avi Ben-Bassat & Momi Dahan, Social Rights in the Constitution and in Practice, 36 J. COMP. ECON. 103, 107 tbl.2 (2008) (listing the indices of constitutional commitment to social rights)
3. Mary Ann Glendon, The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Idea, 16 HARV. HUM. RTS. J. 27, 30-34 (2003) (relating the importance of Latin Americans in the inclusion of social rights in the 1948 Universal Declaration of Human Rights)
4. Mary Ann Glendon, Rights in Twentieth-Century Constitutions, 59 U. CHI. L. REV. 519, 523-26 (1992) (comparing and contrasting the rights that have been accepted in the United States and other Western countries).
5. Compare Flavia Piovesan, Impact and Challenges of Social Rights in the Courts, in SOCIAL RIGHTS JURISPRUDENCE: EMERGING TRENDS IN INTERNATIONAL AND COMPARATIVE LAW 182, 184 (Malcolm Langford ed., 2008) ("[A] failure by the State to implement constitutional dictates, particularly those related to social rights, can be considered an unconstitutional act and subject to judicial review."), with
6. Aryeh Neier, Social and Economic Rights: A Critique, in INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 283, 284 (Henry J. Steiner et al. eds., 3d ed. 2008) ("The concern I have with economic and social rights is when there are broad assertions. There, I think, we get into territory that is unmanageable through the judicial process and that intrudes fundamentally into an area where the democratic process ought to prevail.").
7. Compare Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP. L. 707, 708, 757 (2001) (summarizing debate over strong versus weak review by saying "individual rights are either supreme law, entrenched and enforced by an unreviewable judiciary or they are ordinary law changeable by legislative majority"), with
8. Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 MICH. L. REV. 245, 248 n.11 (1995) (contending that modern constitutional scholarship "tends to reject the claim that the problem of democratic debilitation is a serious one").
9. See also SANDRA FREDMAN, HUMAN RIGHTS TRANSFORMED: POSITIVE RIGHTS AND POSITIVE DUTIES 123 (2008) ([I]t is possible to structure adjudication of positive human rights in a way [that] strengthens rather than detracts from democracy.)
10. MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 163 (2008) (discussing the development of weak-form systems of judicial review and their relation to the enforcement of social and economic rights, utilizing cases from the South African Constitutional Court)
11. Rosalind Dixon, Creating Dialogue About Socioeconomic Rights: Strong-Form Versus Weak-Form Judicial Review Revisited, 5 INT'L J. CONST. L. 391, 391 (2007) (developing a theory of "constitutional dialogue" regarding the South African Constitutional Court's approach to judicial enforcement of socioeconomic rights).
12. See Danie Brand, The Proceduralisation of South African Socio-Economic Rights Jurisprudence, or "What Are Socio-Economic Rights For?," in RIGHTS AND DEMOCRACY IN A TRANSFORMATIVE CONSTITUTION 33, 37 (Henk Botha et al. eds., 2003) (making a "descriptive claim, that the Constitutional Court has proceduralised its adjudication of socio-economic rights, because it leans toward seeing for itself a formal, structural or procedural, rather than a substantive role in adjudicating these rights")
13. Sandra Liebenberg, Adjudicating Social Rights Under a Transformative Constitution, in SOCIAL RIGHTS JURISPRUDENCE: EMERGING TRENDS IN INTERNATIONAL AND COMPARATIVE LAW, supra note 2, at 75, 90 (noting that critics of "reasonableness review" have argued that it "amounts essentially to an administrative law model, and that insufficient attention is paid to the substantive standards that should guide the determination as to whether the State has met its obligations in relation to socio-economic rights")
14. Brian Ray, Policentrism, Political Mobilization, and the Promise of Socioeconomic Rights, 45 STAN. J. INT'L L. 151, 154 (2009) (observing that the South African Constitutional Court's critics' primary objection to the court's deferential socioeconomic rights jurisprudence is that this deference weakens those rights)
15. Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 YALE J. INT'L L. 113, 139-40 (2008) (lamenting the South African Constitutional Court's refusal to define minimum essential levels of socioeconomic rights).
16. The literature on pre- and post-constitution South Africa is now vast.
17. See, e.g., David Bilchitz, Poverty and fundamental rights: the justification and enforcement of socio-economic rights 237 (2007) (advocating a two-stage analysis and claiming that it could improve the inadequate "reasonableness" inquiry developed by the South African Constitutional Court for adjudicating social rights issues)
18. EXPLORING THE CORE CONTENT OF SOCIO-ECONOMIC RIGHTS: SOUTH AFRICAN AND INTERNATIONAL PERSPECTIVES (Danie Brand & Sage Russell eds., 2002) (compiling articles that describe the content of different socioeconomic rights from the South African perspective)
19. Lynn Berat, The Constitutional Court of South Africa and Jurisdictional Questions: In the Interest of Justice?, 3 INT'L J. CONST. L. 39, 64 (2005) (summarizing the South African Constitutional Court's approach to the jurisprudence of socioeconomic rights)
20. William E. Forbath, Not So Simple Justice: Frank Michelman on Social Rights, 1969-Present, 39 TULSA L. REV. 597, 598 &nn.5-6 (2004) (stating that "'social rights' are features of most of the world's constitutions" and listing South Africa as an example)
21. Sandra Liebenberg, Needs, Rights and Transformation: The Adjudication of Social Rights in South Africa, in (MIS)RECOGNITION, SOCIAL INEQUALITY AND SOCIAL JUSTICE 177 (Terry Lovell ed., 2007) (exploring the relationship between a jurisprudence of social rights and the transformative goals of the South African constitution)
22. Frank I. Michelman, The Constitution, Social Rights, and Liberal Political Justification, 1 INT'L J. CONST. L. 13, 15-18 (2003) (discussing the justifications for opposing the constitutionalization of social rights and citing a South African case as an example)
23. Marius Pieterse, Possibilities and Pitfalls in the Domestic Enforcement of Social Rights: Contemplating the South African Experience, 26 HUM. RTS. Q. 882, 891-96 (2004) (analyzing three recent key decisions by South Africa's Constitutional Court that vindicate the court's role as an enforcer of social rights)
24. Theunis Roux, Understanding Grootboom-A Response to Cass R. Sunstein, 12 CONST. F. 41, 41 (2002) (critiquing Cass Sunstein's interpretation of the Constitutional Court's decision in Grootboom, in which it adopted "what is in effect an 'administrative law model of socio-economic rights,'. giving courts the power to order government to 'devote more resources than it otherwise would' to the regulatory problem at issue").
25. See, e.g., Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L.J. 1363, 1365-71 (1973) (presenting two theoretical models of the role of the judiciary in answering constitutional questions)
26. Jonathan R. Siegel, A Theory of Justiciability, 86 TEXAS L. REV. 73, 75 (2007) (arguing that justiciability doctrine is "fundamentally misconceived" in view of the role of the courts in a constitutional democracy).
27. See Octavio L.M. Ferraz, Between Usurpation and Abdication? The Right to Health in the Courts of Brazil and South Africa 13 (August 20, 2009) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1458299 (noting the high rate of success for claimants in Brazilian health-rights cases since 1998).
28. For a recent article in English by a leading Brazilian activist defending judicialization
29. see Piovesan, supra note 2, at 182.
30. See also Octavio Luiz Motta Ferraz, Health Inequalities, Rights, and Courts: The Social Impact of the "Judicialization of Health" in Brazil, in LITIGATING HEALTH RIGHTS: CAN COURTS BRING MORE JUSTICE TO HEALTH? 1, 25 (Alicia Ely Yamin & Siri Gloppen eds., 2011) [hereinafter Ferraz, Social Impact] (finding numerous changes in judicial behavior necessary to allow health litigation to have a positive social impact in Brazil)
31. Octavio Luiz Motta Ferraz, The Right to Health in the Courts of Brazil: Worsening Health Inequities?, 11 HEALTH & HUM. RTS. J. 33, 34 (2009) [hereinafter Ferraz, Right to Health] (arguing that the Brazilian interpretation of the right to health, and the litigation model it encourages, is potentially detrimental to health equity)
32. Florian F. Hoffman & Fernando R.N.M. Bentes, Accountability for Social and Economic Rights in Brazil, in COURTING SOCIAL JUSTICE 100, 100 (Varun Gauri & Daniel M. Brinks eds., 2009) (examining the origins and impact of litigation for health and education rights in Brazil)
33. José Reinaldo de Lima Lopes, Brazilian Courts and Social Rights: A Case Study Revisited, in COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES 185, 185 (Roberto Gargarella et al. eds., 2006) (asserting that democratization in Brazil took place with the support of the judicialization of social rights).
34. This seems to be the argument previously put forward by Frank Cross.
35. See generally Frank B. Cross, The Error of Positive Rights, 48 UCLA L. REV. 857 (2001). Although my analysis echoes some of the points made by Cross, it differs from his analysis in an important respect. According to him, "[f]or positive constitutional rights to make sense, the advocates have to explain why courts would do a better job of providing minimally adequate welfare support than would the legislative and executive branches.
36. Id. at 920. This seems to assume that constitutionalization can have no independent positive effect on legislatures and executives that might outweigh the negative effects of judicialization, which I do not believe Cross proves to be the case. If constitutionalization influences the political branches to adopt measures that enhance the enjoyment of these rights, as I believe was the case in Brazil and could potentially be the case elsewhere (including the United States, which is the sole focus of Cross's concern), the negative effects of judicialization would have to outweigh those positive effects for constitutionalization to be unjustified.
37. For a defense of the South African Constitutional Court's reasonableness approach
38. see Octavio L.M. Ferraz, Poverty and Human Rights, 28 OXFORD J. LEGAL STUD. 586, 588, 603 (2008).
39. Indeed, this is the position taken by the South African Constitutional Court.
40. See In re Certification of the Constitution of the Republic of S. Afr. 1996 (4) SA 744 (CC) at 800 para. 77 ("In our view, it cannot be said that by including socio-economic rights within a bill of rights, a task is conferred upon the Courts so different from that ordinarily conferred upon them by a bill of rights that it results in a breach of the separation of powers.").
41. Minister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CC).
42. Id. at 755 para. 99.
43. See D.M. Davis, The Case Against the Inclusion of Socio-Economic Demands in a Bill of Rights Except as Directive Principles, 8 S. AFR. J. HUM. RTS. 475, 482 (1992) (positing that a court could never interfere with a government program adopted pursuant to a socioeconomic constitutional right)
44. see also Antonio Carlos Pereira-Menaut, Against Positive Rights, 22 VAL. U. L. REV. 359, 377 (1988) (maintaining that political and social rights should never be judicially enforced).
45. 397 U.S. 254, 261-66 (1970) (holding that due process requires a pre-termination evidentiary hearing before the discontinuation of welfare assistance).
46. See infra notes 58-66 and accompanying text.
47. Khosa V. Minister of Soc. Dev. 2004 (6) SA 505 (CC) at 535-42 paras. 68-89.
48. U.S. Dep't of Agric. v. Murry, 413 U.S. 508, 514 (1973) (declaring unconstitutional a provision of the Food Stamp Act that withheld food stamps from indigent households that happened to contain an individual whom another non-indigent taxpayer claimed as a dependent).
49. U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973) (invalidating an amendment to the Food Stamp Act that excluded "hippies" and other households of unrelated persons from the program).
50. 392 U.S. 309, 333-34 (1968) (striking down an Alabama law that denied federally funded aid to children whose mother cohabitated with a man to whom she was not married).
51. Intrusiveness can also vary depending on the strength of the remedy granted by the court, ranging from weak remedies such as declaratory relief to strong remedies such as injunctions.
52. See Tushnet, supra note 4, 33-36 (contrasting "strong-form" and "weak-form" judicial review). I am not concerned in this Article with so-called weak remedies.
53. See Minister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CC) at 762-64 paras. 124-133 (S. Afr.) (deferring to the government to implement a comprehensive policy in order to ensure the national effort to combat the HIV/AIDS pandemic complies with the constitution)
54. Gov't of the Republic of S. Afr. v. Grootboom 2001 (1) SA 46 (CC) at 86 para. 96 (requiring the state to act in order to meet the requirements of § 26 of the constitution, including "the obligation to devise, fund, implement and supervise measures to provide relief to those in desperate need").
55. See TUSHNET, supra note 4, at x-xi (observing that reasonable people often dispute the correctness of the conclusions that courts reach in judicial attempts to interpret and apply the underlying meaning of constitutional bills of rights)
56. Michelman, supra note 6, at 17 (characterizing judicial enforcement of constitutionally protected social rights as "comfortably kosher" if this enforcement only entails, for example, deciding whether municipal land-use laws are "reasonable)
57. Cass R. Sunstein, Social and Economic Rights? Lessons from South Africa, 11 CONST. F. 123, 124 (2001) (conveying judicial enforcement critics' argument that courts are not equipped to make socioeconomic-program-implementation decisions that would require them to apply extensive knowledge of the programs or to make value judgments).
58. Others have made pragmatic claims against justiciability.
59. See Cross, supra note 10, at 920 (warning that relying on the judiciary to uphold socioeconomic rights could be "disastrous" since, historically, courts have not adequately concerned themselves with socioeconomic inequality) Sunstein, supra note 24, at 124 (relaying judicial enforcement critics' argument that allowing socioeconomic rights to be justiciable could undermine efforts to protect these rights, since courts lack the resources to properly enforce these rights, and since the citizens to whom these rights belong would no longer be able to have as much control over the rights through the democratic process).
60. Wojciech Sadurski, Judicial Review and the Protection of Constitutional Rights, 22 OXFORD J. LEGAL STUD. 275, 276 (2002).
61. See, e.g., Ferraz, Right to Health, supra note 9, at 38-40 (arguing that justiciability of the right to health in Brazil has failed to improve health equity in that country).
62. See Alon Harel & Tsvi Kahana, The Easy Core Case for Judicial Review, 2 J. LEGAL ANALYSIS 227, 230-31 (2010) (stating that "the prominent theories purporting to justify judicial review are instrumentalist," and that under these theories, "judicial review is justified to the extent that it is likely to bring about contingent desirable consequences).
63. For a purely pragmatic argument, see Cross, supra note 10, at 862 ([E]conomic and political barriers. prevent positive rights from being actualized effectively.).
64. See A Regional Success Story: Sharing Knowledge to Tackle HIV and AIDS, DEP'T FOR INT'L DEV., http://www.dfid.gov.uk/casestudies/files/south-america/brazil/brazil-hiv-regional.asp (citing a figure of 600,000 people living with HIV and AIDS in Brazil, compared to the figure projected in the mid-1990s of 1.2 million HIV infections by 2000). For a brief account of the program and how its success depended on the participation of civil society
65. see Jane Galvão, Brazil and Access to HIV/AIDS Drugs: A Question of Human Rights and Public Health, 95 AM. J. PUB. HEALTH 1110, 1112-13 (2005).
66. See Tatiana Wargas de Faria Baptista et al., State Responsibility and Right to Health in Brazil: A Balance of the Branches' Actions, 14 CIÊNCIA & SAÚDE COLETIVA [SCI. & PUB. HEALTH] 829, 836 (2009) (discussing the prominent role of the Brazilian judiciary in supplying medicine for HIV/AIDS and other diseases, which was necessitated "at least in part [by] the deficiencies of Public Administration").
67. Censo 2010: população do Brasil é de 190.732.694 pessoas [Census 2010: Brazil's Population Is 190,732,694 People], INSTITUTO BRASILEIRO DE GEOGRAFIA E ESTATÍSTICA [BRAZ. INST. GEOGRAPHY & STAT.] (Nov. 29, 2010), http://www.ibge.gov.br/home/presidencia/noticias/noticia_visualiza.php?id_noticia=1766&id_pagina=1.
68. Fabiane Leite, Estados tentam barrar remédios via Justiça [States Try to Stop Treatment Through Justice], FOLHA DE S. PAULO [SÃO PAULO SHEET], Oct. 3, 2005, available at http://www.gestospe.org.br/web/noticias/conteudo1/?conteudo=151451403&autenticacao=0,79048
69. see also MINISTÉRIO DA SAÚDE [BRAZ. MINISTRY OF HEALTH], O REMÉDIO VIA JUSTIÇA [TREATMENT THROUGH JUSTICE] (2005), available at http://www.aids.gov.br/sites/default/files/o_remedio_via_justica.pdf (presenting a study of 400 cases conducted by the Brazilian National STD and AIDS Programme).
70. Ferraz, Right to Health, supra note 9, at 35-36.
71. See Ferraz, Social Impact, supra note 9, at 10-12 (discussing the social impact of the volume of right-to-health litigation).
72. See id. at 1-2 (discussing the Brazilian judiciary's expansive interpretation of the right to health).
73. See Ferraz, Right to Health, supra note 9, at 34 (suggesting that the courts might be worsening the country's already pronounced health inequities)
74. Keith S. Rosenn, Separation of Powers in Brazil, 47 DUQ. L. REV. 839, 861-62 (2009) (explaining that the Brazilian courts' decisions ordering the government to provide necessary medical treatment have been characterized as "excessive judicialization of the right to health).
75. CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION] art. 6.
76. Id. art. 196.
77. Some commentators seem to underestimate this problem. Michelman, for instance, dismisses the problem very quickly by saying, "'Reasonableness' is not, in any legal discourse known to me, a nonjusticiable standard (or are negligence law and general clauses beyond the pale?), and the remedy for violation, if found, would be a simple prohibitory injunction." Michelman, supra note 6, at 17. This seems to me an unwarranted oversimplification. In negligence cases, one is not dealing with complex polycentric issues of the sort involved in social rights adjudication, such as the housing policy discussed in Michelman's article.
78. Soobramoney v. Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) (S. Afr.).
79. See, e.g., ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 3 (Julian Rivers trans., Oxford Univ. Press 2002) (1986) (setting forth a theory in which "the jurisprudence of constitutional rights sets itself the task of giving rationally justifiable answers to constitutional rights questions")
80. NORMAN DANIELS, JUST HEALTH: MEETING HEALTH NEEDS FAIRLY 117-23 (2008) (proposing procedural constraints for priority setting among health needs that involves making the rationales for limit-setting decisions publicly available and ensuring that these rationales are ones that "fair-minded people can agree are relevant for appropriate patient care under resource constraints)
81. CASS R. SUNSTEIN, DESIGNING DEMOCRACY 221-37 (2001) (analyzing the Grootboom court's decision and praising its approach as "respectful of democratic prerogatives and of the limited nature of public resources, while also requiring special deliberative attention to those whose minimal needs are not being met).
82. Cf. Evan J. Criddle, Fiduciary Foundations of Administrative Law, 54 UCLA L. REV. 117, 118 (2006) (noting that the Administrative Procedure Act "greatly enhanced the administrative state's transparency, formal rationality, and procedural fairness).
83. See William E. Forbath, Constitutional Welfare Rights: A History, Critique and Reconstruction, 69 FORDHAM L. REV. 1821, 1888 (2001) (embracing the argument that social citizenship rights must become part of the constitutional framework to provide all citizens with a fair opportunity to participate in democratic decision making, but acknowledging that "[h]ow substantial the role of courts is in defining and enforcing these rights is a separate question).
84. See Keith S. Rosenn, Judicial Review in Brazil: Developments Under the 1988 Constitution, 7 SW. J.L. & TRADE AMERICAS 291, 292-93 (2000) ("Many of [the Brazilian constitution's] provisions. are not self-executing. They either require complementary legislation to fill in certain missing elements, or they are programmatic, mandating directives for substantive legislation and regulations.).
85. T.J.R.J.-1, Trial No. 1998.004.00220, Relator: Des. Antonio Lindberg Montenegro, 17.12.1998, DIÁRIO DA JUSTIÇA DO ESTADO DO RIO DE JANEIRO [D.J.R.J.], 06.05.1999, 3047, 3047.
86. T.J.R.J.-8, Ap. Civ. No. 1994.001.01749, Relator: Des. Carpena Amorim, 20.10.1994, D.J.R.J., 07.02.95, 1, available at http://srv85.tjrj.jus.br/ConsultaDocGedWeb/faces/ResourceLoader.jsp?idDocumento=0003FF57AF6F13F6DC434CD5C9E438D328F27CC402423511.
87. Soobramoney v. Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) at 769 para. 1.
88. Id. at 776 para. 29.
89. Id. at 776 para. 30.
90. See Bilchitz, supra note 6, at 136 ("[T]he approach adopted by the [Constitutional Court] attempts to circumvent the task of providing content to socio-economic rights."); Pieterse, supra note 6, at 896 ("Primarily, doubt has been expressed as to the adequacy of the Constitutional Court's 'reasonableness test' in fostering a coherent approach to social rights. [that] translates into tangible benefits for rights-bearers as a group.").
91. See Bilchitz, supra note 6, at 234 (suggesting that where there is a violation of socioeconomic rights, the courts should not "abdicate their role of providing content to these rights," but rather, they should "declare the existence of such a violation and.use innovative orders. to require the other branches of government to explain how they propose to deal with the violation).
92. In fact, some claim that the court has moved backwards with its decision in Mazibuko v. City of Johannesburg 2010 (4) SA 1 (CC) at 53-54 paras. 166-169 (holding that the city's free water plan was reasonable and not a violation of the constitutional right of access to sufficient water under § 27 of the constitution).
93. See, e.g., Murray Wesson, Reasonableness in Retreat? The Judgment of the South African Constitutional Court in Mazibuko v. City of Joh[a]nnesburg, 11 HUM. RTS. L. REV. (forthcoming 2011) (manuscript at 1-2), available at http://hrlr.oxfordjournals.org/content/early/2011/03/25/hrlr.ngr002.full.pdf (Although Mazibuko has not yet attracted the level of commentary that accompanied its forebears, there is a perception that it marks a retreat from the Constitutional Court's earlier decisions in Government of the Republic of South Africa v Grootboom, Minister of Health v Treatment Action Campaign and Khosa v Minister of Social Development." (footnotes omitted)).
94. See Ferraz, Right to Health, supra note 9, at 35-36 (describing the adoption of a stricter judicial standard in the 1990s and the related rise in claimant success against the government).
95. See generally Ana Márcia Messeder et al., Mandados judiciais como ferramenta para garantia do acesso a medicamentos no setor público: a experiência do Estado do Rio de Janeiro, Brasil [Can Court Injunctions Guarantee Access to Medicines in the Public Sector? The Experience in the State of Rio de Janeiro, Brazil], 21 CADERNOS DE SAÚDE PÚBLICA [J. PUB. HEALTH] 525 (2005) (documenting the high number of mandatory injunctions granted by Brazilian courts in rightto- health cases).
96. See Anna Silvia Bruno, Bringing Uniformity to Brazilian Court Decisions: Looking at the American Precedent and at Italian Living Law, 11 ELEC. J. COMP. L. 1, 6 (2007), http://www.ejcl.org/114/art114-3.pdf (contrasting the Súmula vinculante with stare decisis).
97. There are a minority of judges in lower courts and in courts of appeals across the country who disagree with the prevailing interpretation and often reject right-to-health claims. In the STF, however, the interpretation has so far been unanimous, with the exception of a couple of cases judged by Justice Ellen Gracie in which she seemed to adopt a dissenting interpretation restricting the right to health (she has since reverted, however, to the prevailing interpretation).
98. See Daniel Wang & Fernanda Terrazas, Decisões da Ministra Ellen Gracie sobre medicamentos [Decisions by Justice Ellen Gracie About Medicines], SOCIEDADE BRASILEIRA DE DIREITO PÚBLICO [BRAZ. SOC'Y PUB. L.] (July 19, 2007), http://www.sbdp.org.br/artigos_ver.php?idConteudo=66 (reviewing Justice Gracie's judicial opinions about health and medicines).
99. S.T.F., Petition No. 1246-1, Relator: Sepúlveda Pertence, 10.04.1997, DIÁRIO DA JUSTIÇA [D.J.], 17.04.1998, 64, 65.
100. See Nathalie M. Goemans et al., Systemic Administration of PRO051 in Duchenne's Muscular Dystrophy, 364 NEW ENG. J. MED. 1513, 1514 (2011), available at http://www.nejm.org/doi/pdf/10.1056/NEJMoa1011367 (Duchenne's muscular dystrophy is an X-linked recessive muscle disorder, affecting 1 in 3500 newborn boys. Patients have severe, progressive muscle wasting, leading to early death. The disease is caused by mutations in the dystrophin gene (DMD), leading to disruption of the open reading frame, dystrophin deficiency at the myofiber membrane, and continued fiber degeneration." (endnotes omitted)).
101. S.T.F., Petition No. 1246-1, Relator: Sepúlveda Pertence, 10.04.1997, D.J., 17.04.1998, 64, 65.
102. See U.N. Statistics Division, National Accounts Main Aggregates Database, Per Capita GDP in US Dollars: All Countries for All Years, http://unstats.un.org/unsd/snaama/dnlList.asp (last modified Dec. 2010) (reporting Brazil's nominal GDP per capita as USD2,564 in 1993 and USD3,602 in 1994).
103. S.T.F., Petition No. 1246-1, Relator: Sepúlveda Pertence, 10.04.1997, D.J., 17.04.1998, 64, 65.
104. Id. at 70.
105. S.T.F., Recurso Extraordinário [Extraordinary Remedy] No. 271.286-8, Relator: Min. Celso de Mello, 12.09.2000, D.J., 24.11.2000, 1409.
106. Id. at 1418.
107. See supra subpart III(A).
108. Cf. GUIDO CALABRESI & PHILIP BOBBITT, TRAGIC CHOICES 18 (1978) (Tragic choices come about in this way. Though scarcity can often be avoided for some goods by making them available without cost to everyone, it cannot be evaded for all goods. In the distribution of scarce goods society has to decide which methods of allotment to use, and of course each of these methods-markets, political allocations, lotteries, and so forth-may be modified, or combined with another.).
109. See Alexy, supra note 42, at 341 ("For if law does not contain an adequate standard, then deciding about the content of social constitutional rights is a matter of politics. But this means that under the principles of the separation of powers and democracy, determining the content of social constitutional rights does not fall within the competence of courts, but of the 'legislature directly legitimated by the people[.']" (footnotes omitted)).
110. See Forbath, supra note 6, at 636 ("What it means to ensure that no member of the community is homeless or without adequate shelter is not self-evident; but the range of plausible meanings is vastly more definite and exigent than what it means to ensure 'decent work' for all, or to sustain every member as 'a competent and respected contributor to political[,]. social, and economic life at large."' (alteration in original) (citation omitted)).
111. See supra notes 23, 48-50 and accompanying text.
112. It is important to notice here that this interpretation is only applied, paradoxically, when individual litigation is at stake. In collective lawsuits the courts stress the non-absolute character of the right to health and the plaintiff (typically the attorney general's office) often loses
113. See Hoffmann & Bentes, supra note 9, at 144 (noting the high success rate of individual claims as opposed to the common rejection of collective claims).
114. S.T.F., Recurso Extraordinário [Extraordinary Remedy] No. 271.286-8, Relator: Min. Celso de Mello, 12.09.2000, D.J., 24.11.2000, 1409, 1418.
115. See supra notes 8-9 and accompanying text.
116. The World Factbook: Brazil, CIA, https://www.cia.gov/library/publications/the-worldfactbook/geos/br.html (last modified Apr. 6, 2011).
117. U.N. DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT 2007/2008: FIGHTING CLIMATE CHANGE: HUMAN SOLIDARITY IN A DIVIDED WORLD 282 (2007), available at http://hdr.undp.org/en/media/HDR_20072008_EN_Complete.pdf. In the U.S. this ratio is about 16, in Sweden 6, and in Japan 4.5. Id. at 281.
118. Id. at 255.
119. See Harvey Morris, Water and Sewage: Taps Turn On but There's Trouble with the Pipes, FIN. TIMES, May 6, 2010, http://www.ft.com/cms/s/0/dba87ed0-571c-11df-aaff-00144feab49a.html (reporting that only 42% of Brazilians are linked to a sewage system and that only 32.5% of the waste is treated)
120. cf. Flawed but Fair: Brazil's Health System Reaches Out to the Poor, 86 BULL. WORLD HEALTH ORG. 248, 248 (2008), available at http://www.who.int/bulletin/volumes/86/4/08-030408.pdf (observing that rural areas in Brazil continue to experience long queues at hospital emergency departments, beds spilling into corridors, and a scarcity of doctors and medicine).
121. Michel Naffah Filho et al., S-Codes: um novos sistema de informaçġões sobre ações judiciais da Secretaria de Estado da Saúde de São Paulo [S-Codes: A New System of Information on Lawsuits of the State Department of Health of São Paulo], 84 BEPA 18, 27 (2010), available at http://www.saude.sp.gov.br/resources/gestor/informacoes_de_saude/gais/bepa_84_gais_7.pdf.
122. Id. at 27.
123. Interview with Maria Cecilia Correa, Dir. of Litigation Dep't, Secretariat of Health of the State of São Paulo, in São Paulo, Braz. (July 2009).
124. Cláudia Collucci et al., Ações por remédios caros favorecem ricos, diz estudo [Lawsuits for Expensive Drugs Favor the Rich, Study Says], FOLHA DE S. PAULO [SÃO PAULO SHEET], July 24, 2010, available at http://www.anapar.org.br/index.php/noticias/57-acoes-por-remedios-carosfavorecem-ricos-diz-estudo-.
125. Ferraz, Social Impact, supra note 9, at 12-13.
126. Id. at 13.
127. Id. at 13-14.
128. Id. at 14.
129. According to a recent study of 170 cases brought against the municipal government of São Paulo in 2005 seeking drugs based on the right to health, 63% of the claimants lived in areas with low levels of "social exclusion," while 67% relied on the services of private lawyers. Fabiola Sulpino Vieira & Paola Zucchi, Distortions to National Drug Policy Caused By Lawsuits in Brazil, 41 REVISTA DE SAÚDE PÚBLICA [REV. PUB. HEALTH] 1, 4 tbl.1, 5-6 (2007), available at http://www.scielo.br/pdf/rsp/v41n2/en_5587.pdf. These data suggest that the intuitive hypothesis that the judicial channel is being "captured" by the middle classes is rather plausible.
130. See, e.g., Interview by Erik Owens with Grete Brochmann, Professor, The Inst. for Soc. Research, Oslo, in Chestnut Hill, Mass. (Apr. 10, 2008), available at http://www.bc.edu/content/dam/files/centers/boisi/pdf/s08/BrochmannQ-and-A_--Rev2--.pdf (stating that citizens of Norway are "guaranteed a minimum standard of living if [they] can't work" and that "support for the welfare state has not gone down in the Scandinavian countries").
131. See Christian Courtis, The Right to Food as a Justiciable Right: Challenges and Strategies, 11 MAX PLANCK Y.B. U.N. L. 317, 330 (2007), available at http://www.mpil.de/shared/data/pdf/pdfmpunyb/12_courtis_11.pdf (stating that the German Federal Constitutional Court and the Federal Administrative Court have decided that there are "positive state obligations to provide an 'existential minimum' or 'vital minimum[,'] comprising access to food, housing and social assistance to persons in need).
132. The World Factbook: Brazil, supra note 75
133. The World Factbook: South Africa, CIA, https://www.cia.gov/library/publications/the-world-factbook/geos/sf.html (last modified April 6, 2011).
134. See John Otis, Huge Debt Keeps Brazil's Lula from Being a Working-Class Hero, HOUS. CHRON., Nov. 23, 2003, at 1A (chronicling Lula's "promises to redistribute land, roll back hunger and create 10 million jobs).
135. See Gay Seidman, Brazil's 'Pro-poor' Strategies: What South Africa Could Learn, 72/73 TRANSFORMATION: CRITICAL PERSP. ON S. AFR. 86, 86 (2010), available at http://muse.jhu.edu/journals/transformation/v072/72.seidman.pdf (reporting a marked reduction in poverty and inequality in Brazil from 2001 to 2006).
136. Id. at 96.
137. Id. at 99.
138. The World Factbook: Brazil, supra note 75 (reporting a Gini index of 56.7, which represents the tenth-most unequal distribution of family income of any country).
139. See Julia E. Sweig, A New Global Player: Brazil's Far-Flung Agenda, 89 FOREIGN AFF., Nov.-Dec. 2010, at 173, 174 (characterizing Brazil's rich as "poised to give up more" wealth due to the regressive nature of the taxation system)
140. Angel Gurría, Towards a Fiscal Policy for Development: Launch of Latin American Economic Outlook 2009, ORG. FOR ECON. CO-OPERATION & DEV. (Oct. 28, 2008), http://www.oecd.org/document/27/0,3746,en_2649_33973_41616731_1_ 1_1_1,00.html (exemplifying inadequate social spending through the lower spending and performance levels of the education sectors of Brazil and other Latin American countries as compared to OECD countries).
141. Gurría, supra note 96.
142. Maria da Piedade Morais et al., Monitorando o direito à moradia no Brasil (1992-2004) [Monitoring the Right to Housing in Brazil (1992-2004)], POLÍTICAS SOCIAIS: ACOMPANHAMENTO E ANÁLISE [POLITICAL SCIENCE: COMPANION AND ANALYSIS], Feb. 2006, at 230, 237, available at http://www.ipea.gov.br/sites/000/2/publicacoes/bpsociais/bps_12/ensaio4_monitorando.pdf.
143. The Brazilian constitution establishes that the highest salary in the Brazilian public service is that of the justices of the Supreme Federal Tribunal. C.F. art. 37, cl. XI. This salary, which is set by legislation, is currently BRL26,723 monthly (approximately USD16,700). Mariângela Gallucci, Juízes federais marcam greve por reajuste de 14,79% [Federal Judges Arrange Strike for 14.79% Readjustment], O ESTADO DE S. PAULO [STATE OF SÃO PAULO], Mar. 29, 2011, available at https://conteudoclippingmp.planejamento.gov.br/cadastros/noticias/2011/3/29/juizes-federaismarcam-greve-por-reajuste-de-14-79. The lowest paid judges in the federal courts of Brasilia earn BRL19,955 monthly.
144. See Carolina Brígido, Aumentos em serie no Judiciario [Increases in Pay Scale in the Judiciary], O GLOBO DE BRASIL [BRAZ. GLOBE], Sept. 24, 2009, available at InfoTrac, File No. CJ208305401 (situating substitute judges at the bottom of the judicial pay scale and reporting a proposed increase in their salaries from BRL19,995 to BRL21,766). Although the salaries of lower court judges vary a lot from state to state, they are not much lower than those of federal judges.
145. See Carolina Brígido, STF eleva teto de juizes estaduais [Supreme Federal Tribunal Raises Ceiling for Judges], O GLOBO DE BRASIL [BRAZ. GLOBE], Mar. 1, 2007, available at InfoTrac, File No. CJ159968304 (relating a decision by the Supreme Federal Tribunal to increase the maximum salary for state judges to BRL24,500). According to one study, income distribution in Brazil stood as follows in 2008: classes "A" and "B" (with household income above BRL4,561), represented 15.52% of the population; class "C" (regarded as the middle class, with income between BRL1,064 and BRL4,561), represented 51.89%; and classes "D" and "E" (with income below BRL1,064), represented 32.59%. Marcelo Cortes Neri, The New Middle-Class, FUNDAÇÃO GETÚLIO VARGAS [GETÚLIO VARGAS FOUNDATION], 5, 23 tbl.6 (Aug. 5, 2008), http://www3.fgv.br/ibrecps/M3/M3_MidClassBrazil_FGV_eng.pdf. Within class "A," according to another study, those families earning above BRL16,600 represent 1% of the population. Pobreza e riqueza no Brasil metropolitano [Poverty and Wealth in Metropolitan Brazil], COMUNICADOS DO IPEA [IPEA NOTICES], Aug. 2008, at 2, 9 fig.8, available at http://www.ipea.gov.br/sites/000/2/destaque/estudoVF2.pdf. If one considers that judges earn the above-mentioned salaries on their own (i.e., not counting potential income from other members of their families), they are clearly within the top 1%, and probably even higher.
146. On the contrary, they often complain and strike to enhance their salaries even further. The most recent example is the strike by federal judges for a 14.79% increase in their salaries as a constitutional right. Gallucci, supra note 99.
147. See Leslie Richards, Affordable Housing Boom in Brazil Gathers Pace, REAL EST. ARTICLES (Sept. 13, 2009), http://www.realestatearticles.org/affordable-housing-boom-in-brazilgathers-pace/ (reporting that "the numbers of individuals signing up for the scheme [were] soaring" within three months of its launch).
148. Cf. JOSEPH E. STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS 80-84, 87 (2002) (pointing out that the International Monetary Fund believes that poverty should be fought through economic growth and not distribution of existing wealth through policies such as those favoring land reform and competition).
149. See Joe Leahy, Rousseff Puts Focus on Industrial Policy, FIN. TIMES, Apr. 12, 2011, at 6 (recognizing that Rousseff and her predecessor Lula both belong to the left wing Worker's Party).
150. Daniel Wei Liang Wang, Escassez de recursos, custos dos direitos e reserva do possível na jurisprudência do STF [Resource Scarcity, Cost of Rights, and the "Reserve of the Possible" Clause in Brazilian Supreme Federal Tribunal Case Law], 8 REVISTA DIREITO GV [GETÚLIO VARGAS L.J.] 539, 539 (2008), available at http://www.scielo.br/pdf/rdgv/v4n2/a09v4n2.pdf.
151. See, e.g., Varun Gauri, Public Interest Litigation in India: Overreaching or Underachieving? (World Bank Policy Research Working Paper Series, Paper No. 5109, 2009), available at http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2009/11/03/000158349_20091103104346/Rendered/PDF/WPS5109.pdf (describing the inequality of legal mobilization between the poor and middle class in India with regard to public interest litigation).
152. My thesis seems to resemble that put forward by Goodwin Liu recently in an interesting article in the context of the United States: [T]he judicial role I envision is one that cannot get off the ground without strong footholds established through the political process. The main implication of my thesis is not that the current policy landscape is fertile with litigation targets, but instead that it will remain barren until we reinvigorate public dialogue about our commitments to mutual aid and distributive justice across a broad range of social goods. Courts can elevate the legal status of distributive norms, but only when those norms have already found some expression in the institutions, policies, and practices of our public culture. This conception of legal evolution is one in which legislative enactments, as much if not more than judicial decisions, "contribute to a complex process by which fundamental law evolves with a strong connection to the people and popular needs. Goodwin Liu, Rethinking Constitutional Welfare Rights, 61 STAN. L. REV. 203, 268 (2008).