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Policentrism, Political Moblization, And The Promise Of Socioeconomic Rights, Brian E. Ray
Policentrism, Political Moblization, And The Promise Of Socioeconomic Rights, Brian E. Ray
Law Faculty Articles and Essays
There is an active and heated debate over whether socioeconomic rights should be included in modern constitutions because of their supposed "positive" character and the difficult separation-of-powers and institutional-competence concerns such rights raise. The controversy over the nature of socioeconomic rights and whether constitutions should include them is connected to the issue of how to enforce these rights when they are included. The South African Constitutional Court is the leading example of a court dealing with these enforcement issues, and its early decisions have been hailed by many, including Mark Tushnet and Cass Sunstein, as developing a uniquely effective approach …
Extending The Shadow Of The Law: Using Hybrid Mechanisms To Establish Constitutional Norms In Socioeconomic Rights Cases, Brian E. Ray
Extending The Shadow Of The Law: Using Hybrid Mechanisms To Establish Constitutional Norms In Socioeconomic Rights Cases, Brian E. Ray
Law Faculty Articles and Essays
This Article challenges the general perception that ADR processes cannot develop public law norms. It follows a recent trend in ADR literature that seeks to define a public norm creation role for ADR in part by connecting these processes to other alternative legal and political problem-solving methods. This Article focuses on a recent South African Constitutional Court case, Occupiers of 51 Olivia Road v City of Johannesburg, in which the court interpreted the right to housing in the South African Constitution. The court held that municipalities must develop processes for negotiating - or, in the court's language "engaging" - with …