Using Constitutional Adjudication to Remedy Socio-Economic Injustice: Comparative Lessons From South Africa

This article seeks to explore the effectiveness of constitutional protection and court adjudication of social welfare rights as tools to address and remedy social injustice and economic inequality. The focus of this examination will be on South Africa and its post-apartheid Constitution that enumerates rights and protections intended to remedy the economic injustices of the country\u27s past. This article argues that the model of adjudicating social rights in South Africa is exportable to other countries, while clarifying the reasonable expectations and potential contributions of such adjudication toward the achievement of socio-economic justice. Part I addresses two questions: first, why look to constitutional social welfare rights as a new solution when they have long existed?; second, why look to South Africa for guidance? Part II examines South Africa\u27s relevant post-apartheid jurisprudence, focusing on the novel concept of differentiated incorporation, the exportable process by which South Africa defended its adjudication against claims of the non-justiciability of socio-economic rights. Finally, Part III addresses the question of whether South African social rights provisions have served their goals

Ready For Marriage? Evaluating the Supreme Court\u27s Obergefell Arguments Like A Pro

Amateur constitutional law gurus, rejoice! Marriage equality advocates and marriage traditionalists, warm up your commenting keyboards! And, secret Supreme Court junkies, put on your “Notorious RBG” t-shirts and rehearse your favorite Justice Scalia quote! On Tuesday, the United States Supreme Court will hear two and a half hours of arguments on whether the U.S. Constitution permits states to exclude same-sex couples from the rights and responsibilities of marriage. The case, Obergefell v. Hodges, is the most eagerly anticipated case of the Court’s current term. And, unlike the last time this court faced the marriage issue, the Justices have very few options other than reaching a substantive decision that will either advance LGBT rights decisively on a national level or undo most of the courtroom victories of the last two years

Interim Law Dean’s Welcome Message

Welcome to the inaugural issue of the Golden Gate University Race, Gender, Sexuality, & Social Justice Law Journal. There has never been a more appropriate or important time to inaugurate a journal dedicated to the law’s capacity to advance social justice than right now. And there is no better institution to inaugurate this new journal than Golden Gate University School of Law. Thank you to all our readers—now and in the years to come—who will help us move the values, principles, and ideas in this journal into communities and courtrooms in pursuit of equality and true justice

Exporting South Africa\u27s Social Rights Jurisprudence

One of the most distinctive elements of South Africa’s jurisprudence has been its willingness to adjudicate socio-economic rights in addition to traditional civil and political rights. While the advancement of social welfare as a whole has clearly proceeded at a far slower pace than political equality, the Constitutional protection of social rights and its enforcement by the Court continues to inspire social justice advocates in their work within South Africa and abroad. Indeed, despite the as-yet inadequate advancement of substantive socio-economic equality, much can be praised about the South African Constitutional project—and much can be learned from it. Particularly, much benefit will result from closer examination of the process through which the South African Constitutional Court decided how to adjudicate social rights cases—a jurisprudential investigation of the manner of enforcement rather than of the substantive rights. These are not the normal comparative law questions of similarity, difference, and connection, but rather the more pragmatic inquiries into functional adaptability and transnational applicability. Can the lessons of the South African Court’s first generation aid a nation adopting, amending, or newly interpreting its national constitution’s commitment to social justice? Specifically, can the Court’s unique approach to formulating socio-economic rights jurisprudence be exported to other countries? In this essay, I assert that the unique but adaptable manner in which the Court’s social rights jurisprudence accommodates classic non-justiciability arguments, what I call “differentiated incorporation,” advances social justice within South Africa and creates an exportable model of social rights enforcement

Ready For Marriage? Evaluating the Supreme Court\u27s Obergefell Arguments Like A Pro

Amateur constitutional law gurus, rejoice! Marriage equality advocates and marriage traditionalists, warm up your commenting keyboards! And, secret Supreme Court junkies, put on your “Notorious RBG” t-shirts and rehearse your favorite Justice Scalia quote! On Tuesday, the United States Supreme Court will hear two and a half hours of arguments on whether the U.S. Constitution permits states to exclude same-sex couples from the rights and responsibilities of marriage. The case, Obergefell v. Hodges, is the most eagerly anticipated case of the Court’s current term. And, unlike the last time this court faced the marriage issue, the Justices have very few options other than reaching a substantive decision that will either advance LGBT rights decisively on a national level or undo most of the courtroom victories of the last two years

Adjudicating Non-Justiciable Rights: Socio-Economic Rights and the South African Constitutional Court

This paper begins with an examination of social rights in the South African constitutional drafting process. Following a review of the traditional arguments against the justiciability of socio-economic rights, it then examines the South African Constitutional Court cases addressing social rights, focusing on four primary cases: the antecedent case Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 and three substantive social rights cases, Thiagraj Soobramoney v Minister of Health, KwaZulu-Natal, Government of Republic of South Africa v Irene Grootboom and Others, and Minister of Health v Treatment Action Campaign (No.2) (TAC). This Article then constructs a South African jurisprudence related to socio-economic rights and highlights its distinctive characteristics. The final part of this paper demonstrates why the Court\u27s jurisprudence is best understood as a viable, affirmative jurisprudence of social rights that is typified by a series of internal, self-imposed limitations shaped by the theoretical arguments against the justiciability of such rights

Ending the Apartheid of the Closet: Sexual Orientation in the South African Constitutional Process

This paper will briefly examine the process of creating a new South African Constitution in the 1990s. Nearly a decade of talks preceded the adoption of South Africa\u27s first multi-racial democratic constitution in 1994. These talks and the subsequent drafting conventions created an astonishing document, stunning in its novelty in South African history, in its expressed values, and in its fundamental compromises. Part Three draws on a wide variety of primary documents from disparate sources to offer an original historical reconstruction of the inclusion of sexual orientation protections in the policy documents, Bill of Rights drafts, and constitutional proposals of the various South African political parties, as well as in the early drafts of the constitutional text. In addition to reviewing the rights protections in legal documents preceding the 1996 Constitution and public opinion expressed in the Constitutional Assembly\u27s Public Participation Programme, this section examines the increasingly visible, newly political, and haltingly multi-racial group of activists attempting to redefine gay rights in the context of liberation. This historical account examines these developments over three time periods: the era of constitutional theorizing preceding the lifting of the ban on the ANC and other liberation movements in 1990, the drafting period for the 1993 Interim Constitution, and the time period for review and final negotiations regarding the 1996 Constitution. Part Four uses this freshly reconstructed history and the earlier procedural overview to argue that the unique characteristics of the political and social history of South Africa set the stage for novel protections, that treatment of sexual orientation-based equality as an unexamined corollary to the dominant ANC ideology of non-racialism provided the justification, and that an autocratic constitutional drafting process secured the final pro-gay content of the discrimination protections

Ballistic Limit Equation for Single Wall Titanium

Hypervelocity impact tests and hydrocode simulations were used to determine the ballistic limit equation (BLE) for perforation of a titanium wall, as a function of wall thickness. Two titanium alloys were considered, and separate BLEs were derived for each. Tested wall thicknesses ranged from 0.5mm to 2.0mm. The single-wall damage equation of Cour-Palais [ref. 1] was used to analyze the Ti wall's shielding effectiveness. It was concluded that the Cour-Palais single-wall equation produced a non-conservative prediction of the ballistic limit for the Ti shield. The inaccurate prediction was not a particularly surprising result; the Cour-Palais single-wall BLE contains shield material properties as parameters, but it was formulated only from tests of different aluminum alloys. Single-wall Ti shield tests were run (thicknesses of 2.0 mm, 1.5 mm, 1.0 mm, and 0.5 mm) on Ti 15-3-3-3 material custom cut from rod stock. Hypervelocity impact (HVI) tests were used to establish the failure threshold empirically, using the additional constraint that the damage scales with impact energy, as was indicated by hydrocode simulations. The criterion for shield failure was defined as no detached spall from the shield back surface during HVI. Based on the test results, which confirmed an approximately energy-dependent shield effectiveness, the Cour-Palais equation was modified

Interpretation of Impact Features on the Surface of the WFPC-2 Radiator

An examination of the Hubble Space Telescope (HST) Wide Field Planetary Camera 2 (WFPC-2) radiator assembly was conducted at NASA Goddard Space Flight Center (GSFC) during the summer of 2009. Immediately apparent was the predominance of impact features resident only in the thermal paint layer; similar phenomenology was observed during a prior survey of the WFPC-1 radiator. As well, larger impact features displayed spallation zones, darkened areas, and other features not encountered in impacts onto bare surfaces. Whereas the characterization of impact features by depth and diameter on unpainted surfaces has been long established, the mitigation provided by the painted layer presented a challenge to further analysis of the WFPC-2 features; a literature search revealed no systematic characterization of the ballistic limit equations of painted or coated surfaces. In order to characterize the impactors responsible for the observed damage, an understanding of the cratering and spallation phenomenology of the painted surface was required. To address that challenge, NASA sponsored a series of hypervelocity calibration shots at the White Sands Test Facility (WSTF). This effort required the following activities: the production, painting, and artificial ageing of test coupons in a manner similar to the actual radiator; the determination of the test matrix parameters projectile diameter and material (mass density), impact velocity, and impact angle, so as to enable both an adequate characterization of the impact by projectile and impact geometry and support hydrocode modeling to fill in and extend the applicability of the calibration shots; the selection of suitable projectiles; logistics; and an analysis of feature characteristics upon return of the coupons. This paper reports the results of the test campaign and presents ballistic limit equations for painted surfaces. We also present initial results of our interpretation methodologies