While many find cause for optimism about the use of law and rights for progressive ends, the academic literature has long been skeptical that courts favor the poor. We show that, with the move toward a robust “new constitutionalism” of social and economic rights, the assumptions underlying the skepticism do not always hold. Our theories must account for variation in the elite bias of law and litigation. In particular, we need to pay closer attention to the broad, collective effects of legal mobilization, rather than focusing narrowly on the litigants and the direct benefits they receive. We support the claim by showing that litigation pursued in legal contexts that create the expectation of collective effects is more likely to avoid the potential anti-poor bias of courts. On the other hand, policy areas dominated by individual litigation and individualized effects are more likely to experience regressive outcomes. Using data on social and economic rights cases in four countries, we estimate the potential pro-poor impact of litigation by examining whether the poor are over- or under-represented among the beneficiaries of litigation. We find that the impact of courts is positive and very much pro-poor in India and South Africa, and slightly negative in Indonesia and Brazil. Overall, we challenge the tendency in the literature to focus on the direct effects of litigation, find that the results of litigation are more positive for the poor than the conventional wisdom would lead us to expect, and offer an explanation that accounts for part of the variation while raising a number of questions for future research.
Daniel M. Brinks is Associate Professor of Political Science at the University of Texas at Austin, specializing in Comparative Politics and Public Law (DBrinks@law.utexas.edu). His current project explores constitutional and judicial transformations in Latin America since the 1970s.
Varun Gauri is Senior Economist with the Development Research Group of the World Bank. His current research examines compliance with human rights court orders in developing countries. (firstname.lastname@example.org).
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The authors would like to thank Yanran Chen, Nara Pavão, and Víctor Hernandez Huerta for providing excellent research assistance on the distribution of beneficiaries. They are also grateful for the extensive, detailed, and insightful feedback provided by the editor and the anonymous reviewers, who went far beyond the norm in helping us strengthen the piece, to Dan Brinks’ colleagues at the University of Texas, who provided valuable feedback and to Varun Gauri’s colleagues at the World Bank. The project enjoyed the support of the Nordic Trust Fund and the Research Support Budget at the World Bank. The findings and opinions expressed in this piece are those of the authors alone and do not necessarily reflect the views of the World Bank.