The (Contingent) Obligation to Issue a Structural Remedy in Socioeconomic Rights Cases

This piece argues that courts in transformative contexts sometimes have an obligation to offer a structural remedy for widespread violations of socioeconomic rights. At the same time, the obligation is one that is contingent on a number of factors, most of which courts rarely seem to consider. The first is the scarcity problem, or the impact of one structural remedy on the court's capabilities and ability to issue others. This makes it important for courts to compare the gravity of different problems and their likelihood of success in confronting different kinds of problems. Second, courts should consider the effect of their interventions on the political system over time. In this sense, they should aim to undertake interventions that improve the functioning of the state, rather than undermining it. This piece will consider how judiciaries can be better designed and incentivized to consider these factors.