Giving individual remedies in social rights litigation their due

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As courts enforce socio-economic rights, reliance on individualized relief continues to be controversial. These remedies risk rewarding individuals for their ‘sharp elbows’, while ignoring others who suffer from similar deprivations. They can undermine the integrity of priority-setting schemes for distributing resources, and they can encourage inefficient public spending. Worse still, these orders can have the effect of starving social programs which support the vulnerable. More generally, this form of relief can neglect the need for structural change, and may fail to promote truly transformative constitutionalism. In the face of these criticisms, this article attempts to give individual remedies in socio-economic rights litigation their due. It develops a framework that identifies three spaces in which individualized relief is warranted. First, individual remedies can compensate for implementation gaps in public policy and administrative disfunction. Second, weak-form engagement orders can promote greater rights awareness and special attention for individuals experiencing poverty. Third, individual remedies can provide urgent relief from unreasonable priority-setting schemes. These remedial paths challenge conventional accounts of the judicial role by positioning judges to be more sensitive to their orders’ distributive implications. The article then theorizes the individual remedy’s contributions to the broader project of transformative constitutionalism. It stresses that when coupled with a democratization of legal procedure, individual orders can offer more timely and effective relief than complex, structural remedies. Individualized relief can also catalyze broader policy and administrative reform. Last, individual remedies can set the stage for structural remedies that would otherwise prove too daunting or provocative.