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Daniel Bonilla Maldonado and Colin Crawford
Gary Jacobsohn and Miguel Schor
Tanya Katerí Hernández
This chapter argues that the U.S. legal system’s failure to recognize the right to work has negatively impacted the case law on racial issues issued by the Supreme Court, unlike Latin America where this right has been recognized formally. For Hernández, the lack of a right to work does not allow U.S. judges to examine the specific contexts in which work spaces are immersed. In these spaces, racial prejudice and the vulnerability of workers are the rule. Hernández concentrates her critical analysis on three key labor case law rulings of the U.S. Supreme Court: Vance v Ball State University, University of Texas Southwestern Medical Center v Nassar and Dukes v WalMart. From Hernández’s perspective, these three rulings show the disconnection between the Supreme Court and the realities of the U.S. labor market in paradigmatic fashion.
Daniel Bonilla Maldonado
This chapter argues that the production, exchange, and use of legal knowledge are subject to a political economy. These processes, Bonilla explains, are governed by a series of rules and principles that determine the conditions of possibility for the creation of, commerce in, and consumption of legal theory, doctrine and practices. For Bonilla, this political economy is not neutral. It constructs a specific subject of knowledge that acts within a particular space and time. This chapter therefore has a double objective. On the one hand, it seeks to describe and analyze the political economy model that dominates the contemporary legal imagination. In this sense, it seeks to examine the conceptual structure of what Bonilla calls the free market of legal ideas model. This is the model that typically serves to explain the prevalence of U.S. constitutionalism in Latin America. On the other hand, it seeks to describe and analyze an alternative, peripheral political economy model that would best explain the real dynamics that regulate the creation, trade, and use of legal knowledge. To reach this objective, Bonilla sheds light on the conceptual structures that form what he calls the colonial model of legal knowledge production. In practice, this is the model that regulates key components of the relationships between Latin American and U.S. constitutionalism.
This chapter provides an analysis of the judicialization of socioeconomic rights in Latin America. Landau argues that over the last few decades, the courts of the region have made it possible for socioeconomic rights to be judicially enforced. Nevertheless, Landau also indicates that the effect of this judicial application of socioeconomic rights has had little impact on the levels of social justice in the region. For Landau, this paradox could be explained if it becomes evident that the courts are institutions that usually protect the positions of the social majorities and therefore tend to favor the interests of the politically powerful sectors. For Landau, this pattern of behavior has two primary components in Latin American constitutional courts: the model of individual application of socioeconomic rights and negative judicial requirements. Landau finds, however, that some patterns of Latin American case law go against the arguments that are typically presented in the dominant constitutional doctrine on socioeconomic rights. One the one hand, for Landau, the courts fill the void left by institutions that defraud the population by non-compliance with their duties with respect to socioeconomic rights. On the other hand, courts block unpopular measures taken by governments as a consequence of pressure from powerful national and international interests. Finally, Latin American case law on socioeconomic rights contributes to the creation of a constitutional culture that brings constitutions closer to the citizens, making law relevant in their daily lives.