Brian Ray - Academia.edu (original) (raw)

Papers by Brian Ray

$Research paper thumbnail of Proceduralisation\u27s Triumph and Engagement\u27s Promise in Socio-Economic Rights Litigation$

Three of the Constitutional Court\u27s socio-economic rights decisions of the 2009 term are the c... more Three of the Constitutional Court\u27s socio-economic rights decisions of the 2009 term are the culmination of a strong trend towards the proceduralisation of socio-economic rights that many commentators have argued fails to fulfill their original promise. This triumph of proceduralisation undeniably restricts the direct transformative potential of these rights. But there is another aspect to this trend - an aspect reflected in the Court\u27s emphasis on participatory democracy and the ability of procedural remedies to democratise the rights-enforcement process. This article considers what the triumph of proceduralisation means for future social and economic rights litigation and argues that properly developed the engagement remedy can give poor people and their advocates an important and powerful enforcement tool. At the same time, engagement can help strengthen and promote consistent attention to the constitutional values these rights protect. Tapping this potential requires the C...

future policy development. We must anticipate the advancement of technology and our goal is to fa... more future policy development. We must anticipate the advancement of technology and our goal is to facilitate its use in a way that enhances public safety while building public trust and confidence by: Recommendation #1 The Ohio Attorney General should appoint a Facial Recognition Advisory Committee to work in collaboration with the OHLEG Advisory Committee and to assist the OHLEG Steering Committee. Recommendation #2 The General Assembly should be encouraged to weigh-in on the appropriate use of Facial Recognition technology and its oversight. Recommendation #3 The Attorney General should limit access to the Facial Recognition database to trained professionals at the Bureau of Criminal Investigation. Recommendation #4 The Attorney General should declare a moratorium on the use of "live" facial recognition. Recommendation #5 The Attorney General should maintain the current OHLEG standard that expressly prohibits the use of facial recognition to conduct surveillance of persons or groups based solely on their religious, political, or other constitutionally protected activities or affiliations. iv Recommendation #6 The Attorney General should promulgate a specific standard for when law enforcement may utilize facial recognition and define investigative purpose for its use. This standard should require reasonable suspicion that the person to be identified has committed a crime, the person's actions present a danger to human life or may cause serious physical harm, or that law enforcement must use facial recognition to identify someone who is not able to identify him or herself. Recommendation #7 The Attorney General should follow the recommended guidance from the Facial Identification Scientific Working Group (FISWG) v for security and maintenance of the system. Recommendation #8 The Attorney General should follow the recommended guidance from the National Institute of Standards and Technology (NIST) vi to conduct accuracy assessments of how the system works. Recommendation #9 The facial recognition database system should have an image quality standard and disqualify images that do not meet that standard. Recommendation #10 Probe images used by law enforcement should not be enrolled in the facial recognition database.

The American Journal of Comparative Law, 2021

Constitutional triumphs, Constitutional disappointments: a CritiCal assessment of the 1996 south ... more Constitutional triumphs, Constitutional disappointments: a CritiCal assessment of the 1996 south afriCan Constitution's loCal and international influenCe (Rosalind Dixon & Theunis Roux eds., Cambridge University Press, 2018) † Reviewed by Brian Ray* One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalized during the apartheid era. .. constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck. 1

Ohio State Law Journal, 2000

This note considers how the heightened scrutiny standard that the Court has used in gender cases ... more This note considers how the heightened scrutiny standard that the Court has used in gender cases under the Fourteenth Amendment will impact the congruence and proportionality test that the Court has applied in a recent series of cases examining congressional power under ...

$Research paper thumbnail of Engagement\u27s Possibilities and Limits as a Socioeconomic Rights Remedy$

This Article first analyzes the Constitutional Court of South Africa\u27s three engagement decisi... more This Article first analyzes the Constitutional Court of South Africa\u27s three engagement decisions. It then divides engagement into two different categories--litigation engagement and political engagement--and offers suggestions for transforming the process into a more effective remedy in each category. Drawing on the work of Charles Epp, this Article argues that political engagement, if structured correctly, offers the greatest potential as an effective mechanism for enforcing socioeconomic rights. Realization of that potential will require a sustained commitment by civil society organizations active in socioeconomic rights issues and a shift from using engagement as a litigation tactic to using it as a tool for political advocacy

Engaging with Social Rights

Marshall College of Law. I would like to thank Jonathan Klaaren for first bringing the Mamba liti... more Marshall College of Law. I would like to thank Jonathan Klaaren for first bringing the Mamba litigation to my attention, and to Jonathan, Stephen Ellmann, and other members of the South Africa Reading Group for raising important questions about the limits of engagement. Amy Burchfield and Jessica Mathewson provided excellent research and editing assistance. 1. Occupiers of 51 Olivia Road, Berea Township v. City of Johannesburg (Olivia Road) 2008 (5) BCLR 475 (CC) (S. Afr.). 2. Id. 3. Id. 4. Mamba v. Minister ofSoc. Dev. 2008, Case No. CCT 65/08 (CC) (S. Aft.); Residents ofJoe Slovo Community Western Cape v. Thubelisha Homes (Joe Slovo) 2009 (9) BCLR 847 (CC) (S. Aft.). As this Article goes to press, the Court recently discussed, but did not use the remedy in one other case, Abahlali baseMjondolo Movement S. Aft. v. Premier ofKwaZulu-Natal 2010 (2) BCLR 99 (CC) (S. Aft.). A recently published report on engagement contains a useful overview and discussion of many of the issues this Article raises. See Lauren Royston & Kate Tissington, Workshop Report: Meaningful Engagement (Dec. 2009), available at http://web.wits.ac.za/NR/rdonlyres/ D1176AF9-340B-413B-AF79-2F1152BEOCDA/0/Meaningfulengagementreport Dec09.pdf.

This Article disputes the general perception that dispute resolution processes are inappropriate ... more This Article disputes the general perception that dispute resolution processes are inappropriate to resolving constitutional issues. Focusing on a recent South African Constitutional Court case in which the Court interpreted the right to housing in the South African Constitution to require that municipalities develop processes for “engaging” with citizens affected by redevelopment plans that may involve eviction, this Article considers how the engagement remedy could be developed into a hybrid dispute resolution mechanism that incorporates the flexibility of ADR processes with the publicnorm creating capacity of traditional adjudication. CHRGJ Working Paper No. 21, 2008 Extending the Shadow of the Law: Using Hybrid Mechanisms to Develop Constitutional Norms in Socioeconomic Rights Cases

Utah law review, 2009

This article addresses the debate over the relative limits of adjudication and alternative disput... more This article addresses the debate over the relative limits of adjudication and alternative dispute resolution and challenges the general perception that alternative dispute resolution processes are inappropriate to resolving constitutional issues. The article uses a recent South African Constitutional Court case in which the Court interpreted the right to housing in the South African Constitution to require that municipalities develop processes for negotiating - or, in the Court’s language “engaging” - with citizens affected by redevelopment plans as a vehicle for analyzing this debate. I locate the Court’s novel remedy within the broader debate over adjudication and ADR and offer suggestions for developing engagement into a hybrid enforcement mechanism that incorporates the flexibility of ADR methods with the norm-creation capacity of traditional adjudication.

Update May/June 006 Responding to congressional concerns raised by these articles, the General Ac... more Update May/June 006 Responding to congressional concerns raised by these articles, the General Accountability Office (GAO) recently announced that it will investigate the safety of reprocessed single-use devices (SUDs) and the Food and Drug Administration’s (FDA’s) oversight of reprocessors. FDA has responded that the agency strictly enforces existing regulations of the reprocessing industry and that reprocessing is a widespread, legal practice that greatly reduces hospital and healthcare facility costs.2 Reprocessing companies, hospitals, and other healthcare facilities agree and accuse medical device manufacturers of raising unfounded safety concerns in the interest of driving up profits. At least one thing is clear: reprocessing is a growing but controversial industry subject to an increasingly complex and fast-developing set of regulations and a wide range of unresolved legal issues.

participants in the South Africa Reading Group for their helpful comments and suggestions on earl... more participants in the South Africa Reading Group for their helpful comments and suggestions on earlier versions of this work. Angela Barstow and the staff of the Cleveland-Marshall Library, especially Jessica Mathewson, provided invaluable research assistance. The Cleveland-Marshall Fund provided generous research support. It was a pleasure working with the staff of the Utah Law Review in the editing and publication process. ' MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 220 (2008) ("Constitutions drafted after World War II almost universally included social welfare provisions."). UTAH LAW REVIEW relative ubiquity of these rights, however, judicial enforcement of them remains relatively controversial in theory and problematic in practice. 2 While concerns over judicial review arguably are heightened in the socioeconomic rights context, the arguments over enforcement of these rights largely mirror the debate over judicial enforcement of constitutional rights more generally. In particular, both debates focus on the undemocratic nature of judicial review and, consequently, are concerned with defining (and confining) the judicial role in ways that maximize its legitimacy. 3 Defenses of judicial review are connected to those of adjudication more generally. They often locate their legitimacy in a set of procedural characteristics-such as judicial independence, structured participation, and reasoned decisions-that promote objective results and serve the public interest. Lon Fuller in his famous essay The Forms and Limits ofAdjudication defines "the distinguishing characteristic of adjudication" as "the fact that it confers on the affected party a peculiar form of participation in the decision, that of presenting proofs and reasoned arguments for a decision in his favor." 4 In a related vein, Owen Fiss argues that judicial review is rooted in a "conception of the judicial function [that] sees the judge as trying to give meaning to our constitutional values" and a "process through which that meaning is revealed or elaborated." 5 The more flexible, person-centered processes associated with alternative dispute resolution, or "ADR," are often contrasted with adjudication. Both critics and proponents of alternative dispute resolution often assume that, unlike adjudication, these processes are inherently limited to solving particular disputes and thus are unable to establish precedents applicable beyond a single dispute. 6

Engaging with Social Rights

South African Journal on Human Rights

and the Community Law Centre at the University of the Western Cape. I am grateful for the excelle... more and the Community Law Centre at the University of the Western Cape. I am grateful for the excellent facilities and stimulating environments they provided and to

Stanford Journal of International Law, 2009

Rich, and participants in the 2008 Comparative Law Works-in-Progress Workshop, especially Daniel ... more Rich, and participants in the 2008 Comparative Law Works-in-Progress Workshop, especially Daniel Halberstam, for their helpful comments. Stuart Wilson of CALS generously provided invaluable information about and insight into the City of Johannesburg litigation and settlement. I am grateful to the Cleveland-Marshall fund for research support during the summer of 2007. This project has its roots in draft remarks I prepared for Justice Goldstone in 2003 while serving as his foreign law clerk at the South African Constitutional Court. I would like to thank Justice Goldstone for giving me that extraordinary opportunity and for his continued support and encouragement of my efforts to study the Court's work. I would also like to thank the Rotary Foundation for providing funding during that year. See MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 220 (2007) ("Constitutions drafted after World War II almost universally included social welfare provisions."). 2 What rights should be included under the rubric of "socioeconomic"-and indeed as discussed below, whether the category makes conceptual or practical sense at all-is a topic of considerable academic discussion.

authority that engagement creates to craft and manage a process that directly addresses the burea... more authority that engagement creates to craft and manage a process that directly addresses the bureaucratic and administrative failures her questions aim to identify. I’ll start in the middle of the case’s complicated procedural history and skip over some details to simplify the story. Relying on Blue Moonlight, the occupants in June 2012 secured a High Court order requiring the City of Johannesburg to provide accommodation before they were evicted. The City failed to provide accommodation by the deadline and instead filed a report with the court stating it lacked the resources to satisfy the order. The occupants then brought the Hlophe action to enforce the accommodation order. The High Court confirmed the original order, and once again required the City to report back, this time by 20 March 2013, providing details on the accommodation it would provide. In this second report, the City stated it was still unable to provide accommodation and requested an indefinite delay. Following this second report Judge Satchwell ‘invit[ed]’ the Executive Mayor, City Manager and Director of Housing to attend a hearing to address her concerns about the City’s reports. Specifically, the judge was concerned that:

Reprocessing single-use medical devices is a growing but controversial industry subject to an inc... more Reprocessing single-use medical devices is a growing but controversial industry subject to an increasingly complex and fast-developing set of regulations and a wide range of unresolved legal issues.

Human Rights Law Review, 2010

In February 2009, the Constitutional Court of South Africa developed an innovative remedy for enf... more In February 2009, the Constitutional Court of South Africa developed an innovative remedy for enforcing socio-economic rights that it termed “engagement.” In its most basic form engagement requires government authorities to use negotiation or mediation when it ...

$Research paper thumbnail of Proceduralisation\u27s Triumph and Engagement\u27s Promise in Socio-Economic Rights Litigation$

The American Journal of Comparative Law, 2021

Ohio State Law Journal, 2000

$Research paper thumbnail of Engagement\u27s Possibilities and Limits as a Socioeconomic Rights Remedy$

Engaging with Social Rights

Utah law review, 2009

Engaging with Social Rights

South African Journal on Human Rights

Stanford Journal of International Law, 2009

Human Rights Law Review, 2010