Extending the Shadow of the Law: Using Hybrid Mechanisms to Establish Constitutional Norms in Socioeconomic Rights Cases

Abstract

0 Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:Table Normal; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:Cambria,serif; mso-ascii-font-family:Cambria; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Times New Roman; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Cambria; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:Times New Roman; mso-bidi-theme-font:minor-bidi;} 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 citizens affected by redevelopment plans, to analyze how claims about the norm-creation potential of ADR processes could be developed in the context of constitutional adjudication of socioeconomic rights. The heightened legitimacy and separation of powers concerns associated with socioeconomic rights mean that they have been a rich source for examining the use of alternative enforcement approaches. The South African Constitutional Court is one of the most active courts in this area; other jurisdictions and academic literature cite its decisions as models for developing alternative approaches. Occupiers of 51 Olivia Road v City of Johannesburg portends a potentially important development in its approach to enforcement. The court adopted the term to describe a unique remedy it developed-in essence, a permanent negotiation/mediation requirement in housing rights cases that may involve eviction. Properly implemented, the engagement remedy can be developed into a hybrid dispute resolution model. This model integrates ADR processes with formal adjudication in a manner that enhances the legitimacy of the resolution and makes possible extra-judicial interpretation and enforcement of socioeconomic rights. This hybrid process is particularly well-suited to enforcing socioeconomic rights because it is more democratic than formal adjudication and also more flexible and responsive to the practical concerns that socioeconomic rights raise. Part II of this Article outlines two classic but competing accounts of the procedural justifications for adjudication and related assessments of the limitations of ADR processes by Fuller and Fiss. Despite their differences, the characteristics Fuller and Fiss identify as legitimizing adjudication share important similarities that Susan Sturm has argued ADR processes can promote and protect. Part III analyzes two related articles by Sturm and Gadlin that develop this argument. Sturm first identifies four key characteristics that Fuller's and Fiss's accounts share and argues that these characteristics can be advanced through mediation in the remedial phase of public law litigation. Sturm and Gadlin, in a more recent article, propose an ADR model that promotes those same values and therefore can be used to develop public norms outside of adjudication. Part IV summarizes the debate over socioeconomic rights generally and the specific debate over the South African Constitutional Court's enforcement approach and identifies important ways in which the arguments there track the debate over the relative roles and the legitimacy of adjudication and ADR. It then describes the Constitutional Court's decision in City of Johannesburg and argues that the court's engagement remedy can be developed into a hybrid process incorporating aspects of adjudication and mediation/negotiation. It argues that this can be done in a way that retains the flexibility and responsiveness Fuller prizes in ADR, while still protecting the legitimacy norms both Fuller and Fiss associate with adjudication.