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Jorge L. Esquirol

This chapter contends that the relationship between Latin American and U.S. constitutionalism is not horizontal. Esquirol argues that the vertical nature of the relationship is illustrated particularly well by the relative importance of the Latin American constitutional courts and the Supreme Court of the United States. While the U.S. Supreme Court enjoys broad prestige in Latin America, Esquirol explains, Latin American courts have a questionable reputation in the United States (when they are visible at all). While the U.S. court is widely cited by Latin American court and academics, the case law of Latin American courts is not known and rarely cited by U.S. law professors and courts. For Esquirol, this relationship of subordination of Latin American to U.S. constitutional law is explained by two variables that have contributed to creating a negative image of Latin American constitutional law in the United States, variables that have been instrumental in constructing an idealized image of U.S. liberal constitutionalism and a hyper-realist image of the failures of Latin American constitutionalism. The first variable is the concept of “obstruction of justice” in international law. This concept presents Latin American justice systems as radically dysfunctional. The second variable is the law and development movement and its impact on contemporary comparative law. Esquirol argues that for the law and development movement Latin American constitutionalism has failed.

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Jorge L. Esquirol

Advocates for marginalized groups in Latin America are increasingly turning to formal property rights as a means of improving the lives of their constituents. Massive land titling programs, for example, have been championed for residents of urban and rural informal settlements. This type of legal formalization offers some distinct advantages to its beneficiaries; however, it also faces some predictable pressures and known obstacles that may frustrate its intended objectives. Coercive real-estate market forces unleashed on socio-economically disadvantaged beneficiaries of newly titled land, on the one hand, and selective enforcement of property rights by the state, on the other, may erode the expected benefits of tenure stability and a secure stock of low-income housing. In light of these potentially negative consequences, this chapter explores a variety of property protections in Latin America in pursuit of social justice goals. Indeed, the region’s legal history enables an understanding of property ownership in multiple, disaggregated, and relational ways. And, while some property forms may require specific formal elements (such as pre-designated types, writing requirements, and recording procedures), not all property entitlements entail the same formality. As a result, in light of property’s variable constituent elements and its different levels of formality, property protections need not signify solely one type of formalization or be limited to only classical individual ownership (or ancestral collective holdings). In the end, it may not be possible to eliminate all of the disadvantages associated with the current titling programs; still it may be feasible to diminish some of their more negative consequences. In this regard, social justice goals may be assisted by alternative property forms as well as different types of formalization.