In the last decade, higher courts in Latin America have increasingly made use of both rights-based and impact litigation to engage in structural reforms of civil services. In doing so, the courts have begun to confront patronage practices and spoils systems in a way that second-generation reforms failed to do.
This paper examines some aspects of this ongoing struggle for civil service reform. In pursuing this inquiry, the paper makes three normative claims. First, in implementing civil service reforms, the dominant political class in each country have exploited legal loopholes and introduced distortions into the system to render it ineffective. Secondly, the myriad cases of judicial activism in civil service litigation have sought to correct the distortions introduced into the system along the lines of the second-generation reforms. Thirdly, the cases in which higher courts have engaged in structural reforms haven't resulted in improvements to the operations of civil services.
Latin American constitutions recognize several social rights (SR). But the gap between SR’s declaration and implementation is significant. People resorted to courts to seek remedies for unfulfilled SR, often targeting structural problems. While courts were receptive to such claims, the enforcement of complex decisions faces challenges that remain under-explored.
The paper claims that a way to navigate enforcement hurdles is to craft “experimentalist” remedies and monitoring mechanisms. As experimentalism promotes participation, decentralization and experience-based learning, it can help contextualize SR and address judges’ limitations to engage in policy issues.
The paper presents a detailed research of a landmark environmental litigation in Argentina directed at cleaning a massive river basin. Because of contamination, people living in slums in riverbanks had to be relocated. Relocations triggered promising experimentalist innovations in case-management and policymaking.
The paper aims to analyze an emblematic case of judicial activism that Mexican
Supreme Court resolved in 2018: the recreational use of marijuana. Using the human
right to free personality development as the main thread of the argument, the court
considered the existing prohibition in the General Health to consume marijuana for
recreational purposes was unconstitutional. The case meant a watershed in the way in
which the Mexican legal system is conceived and the role of the courts in its
reformability. In this sense, the strength of civil society organizations initiated a series
of changes in the regulation of cannabis that, despite being incipient, have begun to
deconstruct the paradigms of a prohibitionist drug scheme. The matter reached the
rigid standards separation of powers, where now, with different rhythms and nuances,
each of them begin to assume its role as interpreter, applicator and harmonizer of the
legislation around the subject.
The coordination decisions taken by the State and the regions to harmonize procedures at local government’s levels should be adopted by a competent public authority in a supramunicipal tier considering the local authority that is being coordinated. Several actions have been adopted by the legislative system to enhance coordination measures and its procedures. Nonetheless, the Constitutional Court has reviewed cases, for instance, in the mining industry, in which there are not specific procedures in place that allows local governments to clearly stated their interests. The latest ruling taken by the Constitutional Court will lead to a specific reform in the mining industry. This new ruling will require from the legislator to establish a coordinated decision-making process to determine the mining areas. The main concern with this ruling is to determine whether the Constitutional Court is the appropriate body to make this decision or if lacks legitimacy.
Brazil is undergoing intense transformation due the ongoing State reforms on various sectors. One important change is in Brazilian Public Administration structure, grounded on an outdated rule that does not meet 21st Century needs. The so-called Administrative Reform pretends to modify how the public machinery works. The paper aims to map the most relevant triggers faced in the reform and to propose feasible legal changes. The main issue to be dealt with is the complexity and inefficiency of the legal system, which hinders the development of the economy and creates legal uncertainty for regulated sectors. It leads to an overlap of multiple statutes and regulations, and delays. Also, the abuse of regulatory power is a relevant legal issue in the country. Based on the diagnosis, the proposed changes focus on reducing complexity by reviewing outdated rules and regulations; mitigating overlap regulations through cooperative means; and using public sector indicators to improve performance.
One of the reasons to prefer a democratic regime over other forms of government is that it enables citizens to develop political and civic virtues by engaging constantly on public debate and collective deliberation. Strong judicial activism may impair the development of those virtues. Even if judges are fair and their arguments sound, by taking away significant decisions from democratic procedures they may disrupt the development of a virtuous character of political actors. Just as democracy is concerned with the excellence of the character of those that interact within the political sphere, judicial procedures are also a scenery in which judges are able to develop virtues. In the following paper I claim that there needs to be a harmonization between the virtues of democratic citizenship and judicial decision making. Both aretaic dimensions are interrelated and should aim to be mutually reinforcing.