Constitutional Avoidance in Social Rights Adjudication
35(3) Oxford Journal of Legal Studies 607-625, Autumn 2015
19 Pages Posted: 20 Jan 2015 Last revised: 14 Feb 2018
Date Written: January 19, 2015
In Judging Social Rights, Jeff King makes a powerful case for a limited, incrementalist, judicial approach to social rights adjudication. We argue that while King’s presciptions are justified, he is too cautious about the applicability of his incrementalist prescriptions to legal systems that suffer systemic administrative inefficiencies. Using the Indian experience as a case study, we show that such caution is misplaced, and that at least one of King’s incrementalist strategies, constitutional avoidance, has particular salience for such jurisdictions.
Keywords: Social Rights, Socio-Economic Rights, Constitutional Avoidance, Administrative Law, Jeff King, Structural Remedies, Adjudication, Social Rights in India, incrementalism
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