Responding to Institutional Failure Where Failure is Pervasive: A Response to Michaela Hailbronner’s The Failure of Others.
April 20, 2026
[Editor’s note: this is the third of four posts commenting on Michaela Hailbronner’s new book, The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law (Cambridge University Press, 2025)].
Michaela Hailbronner’s The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law is a brilliant and important book, one which will inform debates about constitutional theory and judicial role for a long time to come. Hailbronner’s ambitious book gives the first comprehensive theory of responses to institutional failure by courts and other constitutional actors. The book’s breadth is impressive, as Hailbronner draws on rich examples from a wide range of domestic and international jurisdictions, from the US to Colombia, the United Nations to the European Union.
Likewise, Hailbronner’s nuanced normative theory of responses to failure is a major contribution to recent debates. The book rightly points out the underappreciated dangers of arguments from the premise that other institutions have failed in their duties, which can justify overreaches or even authoritarianism. And thus her argument, while defending the legitimacy (and a bit more skeptically, the efficacy) of interventions to ameliorate institutional failure, also insists on guardrails that are both realistic and important. She rightfully insists that failure arguments be distinguished from emergency arguments, suggests that institutions consider the existence of more democratic alternatives, and requires that responses be proportional in nature. As a theory of separation of powers, it adds an important angle to recent work calling for flexibility, collaboration, and responsiveness, as in Rosalind Dixon’s Responsive Judicial Review and Aileen Kavanaugh’s The Collaborative Constitution.
Institutional Failure as Commonplace
Hailbronner suggests that interventionist arguments from the failure of other institutions should be “safe, legal, and rare.” I am less certain about the “rare” part, either descriptively or normatively. Many of Hailbronner’s core domestic examples come from “global south” jurisdictions such as India, South Africa, and Colombia, which have often been innovators in conceptions of judicial role. In these jurisdictions, judicial and scholarly discourse suggests that widespread institutional failures of legislatures and bureaucracies are commonplace, not unusual. Dysfunctions in public health, social security, public safety, infrastructure, lawmaking, and many other realms. The U.S., long considered an archetypical “consolidated” democracy, right now demonstrates a veritable laundry list of dysfunctional institutional performance stemming from both constitutional and statutory factors. In the 1960s and 1970s when structural interventions in the U.S. were widespread, judges found numerous institutional failing in places like prisons, schools, hospitals, housing projects, etc. Those interventions trailed off over time not necessarily because the problems went away, but because of judicial ideology that made judges less willing to engage in them. As Hailbronner recognizes, institutional failures come in many shapes and sizes. But I would suggest reconceptualizing them in at least many systems as relatively routine problems within constitutional governance, rather than as exceptional events. This thrust is consistent with recent work by Gardbaum, Cepeda and myself, and others in a revised, more expansive comparative “political process theory.”
The implications of seeing institutional failure as often commonplace, not rare, are significant, albeit complex. Hailbronner focuses largely on the risk that courts and other institutions will abuse arguments from institutional failure to overreach; in many contexts, I would instead emphasize the risk – at least vis-à-vis courts – that narrow conceptions of judicial role and the separation of powers will result in too little willingness to engage with structural institutional problems. More broadly, there is a major risk that institutional failures will go unaddressed.
Targeting Judicial Review
One point is that at least judicial involvement in systemic institutional failure becomes in part a question of selection or targeting. Judicial review – at least of the structural variety – is a scarce resource. Hailbronner notes the “unconstitutional state of affairs” doctrine in Colombia, and the Constitutional Court’s efforts to confine more large-scale interventions to problems of significant size and a structural character. I would also emphasize the judicial imperative to consider the likilihood of success, which depends on finding political and non-political allies. As Hailbronner notes, successful cases of intervention often seem to work because significant aspects of the ruling coalition actually support what the court is trying to do and view judicial review as a useful tool to achieve their goals. The degree and organization of civil society support also seems important from comparative experience. The hard truth of these lessons is that sometimes, robust judicial intervention will be unwise despite a massive structural failure, simple because the prospects of having a significant effect are so low.
The Many Judicial Responses to Failure
Another point is about means. Hailbronner’s account of domestic judicial review focuses on large-scale structural remedies from the US, India, and South Africa that as she notes, have a promising but highly imperfect track record. Rodriguez-Garavito suggests that one key for efficacy is not merely the scope of the orders, but the robustness of the court’s monitoring mechanisms; even then, progress is usually slow and uneven. In comparative terms, these kinds of structural remedies are not particularly common. Because of political constraints, resource constraints, and more traditionalist conceptions of judicial role, many judiciaries around the world are too reluctant to deploy them even where warranted.
But, consistent with a world in which institutional failure is common, judicial review seems to respond to institutional failures in many different ways, of which the structural injunction is only one striking example. Consider the ways in which procedural forms of review can serve a similar purpose. Courts sometimes modulate the strictness of their review of government policies to their perception of how well the underlying institution has functioned, either in the particular case at end or more generally. A recent example is the way the US federal government seems to have lost the “presumption of regularity” during the second Trump administration, at least among many lower federal courts. Policies and actions that might previously have withstood scrutiny due to deference are now receiving a harsher reception as judges suggest that the government as a whole is not working in a normal, good faith way.
I think, then, that despite a growing bank of comparative work, responses to failure have not gone much beyond the “experimental” stage, where the right response is highly contextual, and success is quite contingent. Fostering an experimental ethos in judges, particularly in systems where this ethos is rare, may be the most important thing to do. As an example, the Colombian Constitutional Court in recent years been more reluctant to deploy the wide-ranging and durable monitoring devices used in its landmark internally displaced persons (2004) and right to health (2008) cases. But it has sometimes tinkered with other approaches that may impose lower costs on the Court, for example the use of South-African style engagement remedies or the outsourcing of most monitoring to an independent commission staffed with political, legal, and civil society personnel.
The Goals of Intervention
A final point is one asked but left somewhat open by Hailbronner’s analysis: what is the purpose of intervening in cases of institutional failure? One can distinguish between two ideal types of intervention: efforts to replace non-functioning institutions versus efforts to improve them. The lines between replacement and improvement are blurry, of course, and courts sometimes do both at the same time. Both strike me as having some legitimacy from a theoretical perspective. The argument for (at least temporary) replacement stems both from the primacy of realizing constitutional goals and the fact of redundancy as part of modern separation of powers, where legislatures, courts, bureaucracies, and fourth-branch democratic accounability institutions share overlapping functikons. The legitimacy of improvement-type interventions is probably easier to construct, based on Ely-like political process concerns and a longer-run effort to create a well-functioning constitutional system.
To what degree is either goal feasible? Courts can create workarounds for non-functioning bureaucracies, for example by allowing claimants to obtain benefits from badly-functioning healthcare systems via litigation. These workarounds, however, may come with their own pathologies, especially if benefits are only available to those willing and able to sue. As well, the existence of a judicially-created safety valve might actually reduce political pressure for bureaucratic reform by giving the relatively affluent and powerful relief.
Improvement, perhaps the more appealing goal in most cases, comes with its own difficulties. We know from experience that courts can have some impact on improving bureaucratic performance over time, at least under certain conditions. I would suggest that even this kind of slow-bore headway is very often worth it and may reflect some of the highest-impact forms of judicial review. The ability of courts to improve legislative functioning is even more difficult, but not impossible. One indirect impact of the IDP and health interventions in Colombia was to make the rights of victims and the right to health a much more visible part of public discourse, and the end result was the passage of reasonably effective, landmark laws in both areas; a similar dynamic seems to have happened with the right to food in India. It is implicitly tempting to compare these flawed interventions to an ideal world, but the more relevant comparison to a world without them, a counterfactual that almost certainly would have left things much worse off.
In short, Hailbronner’s The Failures of Others sheds much light on crucial questions, one which is deepened by reflecting on the frequency of the phenomenon she identifies.