Utah Law Review
South African Constitutional Court, housing rights, engagement, Olivia Road, socioeconomic rights, alternative dispute resolution
This Article challenges the general perception that ADR processes cannot develop public law norms. It follows a recent trend in ADR literature that seeks to define a public norm creation role for ADR in part by connecting these processes to other alternative legal and political problem-solving methods. This Article focuses on a recent South African Constitutional Court case, Occupiers of 51 Olivia Road v City of Johannesburg, in which the court interpreted the right to housing in the South African Constitution. The court held that municipalities must develop processes for negotiating - or, in the court's language "engaging" - with citizens affected by redevelopment plans, to analyze how claims about the norm-creation potential of ADR processes could be developed in the context of constitutional adjudication of socioeconomic rights.
Brian Ray, Extending the Shadow of the Law: Using Hybrid Mechanisms to Establish Constitutional Norms in Socioeconomic Rights Cases, 2009 Utah Law Review 797 (2009)