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Commandeering the Institutions: The Legitimacy of Structural Judicial Remedies in Comparative Perspective

Guillermo Otálora Lozano
From the journal ICL Journal

Abstract

In some countries, courts protect constitutional rights by ordering broad institutional reforms and overseeing those reforms. These broad orders are known as structural remedies, and they are currently part of the judicial practice of the United States, India, and Colombia. Structural remedies pose a problem of democratic legitimacy in that courts substitute for legislatures or administrators. This paper argues that structural remedies are democratically legitimate as long as they are used as a last resort and are aimed at addressing a specific institutional pathology within the legislature or the bureaucracy. Drawing from the experience of the United States, India, and Colombia, the paper distinguishes counter-legislative from counter-bureaucratic remedies in order to show that the democratic concerns raised may vary depending on the affected institution. The paper argues that structural remedies are legitimate if they are capable of correcting a pathology in the legislative or administrative process. With respect to legislatures, structural remedies should aim at improving the representative or the deliberative quality of legislative decisions. In the case of bureaucracies, they should aim at improving the subordination of agencies to the political process, their responsiveness to citizens’ concerns, and the expertise with which their tasks are carried out.

Acknowledgements

I am grateful for the guidance and advice of Professor Mark Tushnet, whose work on comparative constitutional law inspired this academic inquiry. This paper also benefited from comments by Hedayat Heikal, Jane Bestor, and Richard Fallon. I also thank Laura Vegalara Correa and Maria José Rodríguez for their help with footnotes.

Published Online: 2019-03-08
Published in Print: 2019-03-26

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