Upping the Ante: Collective Litigation in Latin America

Angel Oquendo has profitably continued his exploration of legal innovations in Latin/Iberian America in a recently published article "Upping the Ante: Collective Litigation in Latin America" 47 Columbia Journal of Transnational Law 248-91 (2009), a copy of which I am proud to add to the dean's bookshelf. In this insightful review of developments south of our border, Angel reprises his discussion of certain procedural mechanisms through which citizens in many Latin American countries have access to courts well beyond access available here in the United States. What makes this piece particularly interesting is the added conceptual framework.

    U.S. readers will generally be familiar with the oft-described contrast between the kind of "negative rights" often found in our Constitution ( no unreasonable searches; no uncompensated takings, etc.) and so-called affirmative rights (provide a living wage; provide health care; provide an education,) which U.S. scholars often believe are too demanding for judicially enforceable constitutional rights.  Angel proposes contrasting our legal system with those in Latin America using a different lens.  Instead of considering the nature of the right from the standpoint of what the government abjures or provides, he suggests we look at rights from the standpoint of who is asserting them.  U.S. law tends to focus heavily on the nature of the injury to the person or group whose rights have allegedly been infringed.  In contrast, Angel shows how Latin American law often permits assertion in court of a generalized right shared by everyone in the population.  He calls these "collective rights"  (sometimes macro-collective rights) to contrast them with group rights, the latter being the kind we typically would imagine asserted here in class action suits. If I understand the point correctly, some Latin American courts would permit any citizen in the nation to sue the government if funding levels for education fell below some constitutionally derived minimum or prison conditions had become unconsitutionally harsh. Less emphasis would be placed than in the U.S. on whether the plaintiff or the member of a group of which the plaintiff was a member had suffered a direct injury.  Angel urges Latin American courts to place greater scrutiny on whether the party bringing suit is adequately equipped to represent the interest advanced.   Beyond that, however, he is largely supportive of Latin American innovations and devotes most of this article to describing their successes.

           The article also urges U.S. policy makers to consider following Latin America's lead.  This is a thoughtful piece, and so Angel repeatedly highlights the many open areas that would need to be fully explored before reaching definitive conclusions.  And, there is always something persuasive in a critiique of existing practice in one country that highlights how well an alternative practice is working in a different country.  Plenty of work, however, remains to be done to convince skeptics who will reply by saying not that the Latin American approach can't work but that it shouldn't work because it circumvents democratic accountability.  Perhaps this will be a theme of one of Angel's future works.  In the meantime, he deserves congratulations from all.  JP