Responding to Institutional Failure Where Failure is Pervasive: A Response to Michaela Hailbronner’s The Failure of Others.
[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.
[Editor’s note: this is the second 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 new book has an evocative, almost filmic title that gestures towards a broad horizon of human interests: “The failures of others.” It is very well constructed: logically structured; written with efficacy and clarity; assertive but modest and careful in its contentions. The analysis is supported on a solid background of readings and debates that have marked the destinies of public law over the last decades. It reflects the kind of broad knowledge that singles out a responsible comparatist scholar, and a depth of view that is not easy to find in times of scholarship subjugated by the prevailing, hetero-imposed dynamics of “publish or perish.”
The focus of the book is use of “arguments from failure” in public law. As Hailbronner observes, institutions or power branches sometimes signal the failure of other branches or institutions in fulfilling their duties as a reason to expand their own radius of action. She identifies the differences between arguments from failure and invocations of emergency powers or implied powers, which share with the former an underlying logic of output-legitimacy. In her view, we should take arguments from failure seriously as a matter of public law –we should recognize them as legal doctrines. Yet because they come with substantial risks of abuse, she observes, their role should be limited by a set of normative constrains. First, they have a place only in contexts where there are interinstitutional relationships grounded on the ideal of working collaboratively together to achieve a shared purpose (living under a constitution is one such a context, though others may exist). Second, they must be, as she poses it, “safe, legal and rare” (read all about it at pp. 41-70). Third, they must be proportional and satisfy the tests of functionality, necessity and reasonable costs. The legitimacy of extending one’s power is connected to the legitimacy of the type of action that is taken in response.
After their preliminary clarification and evaluation in Part I, the book explores the deployment of arguments from failure in three domains: national (Part II), supranational and international (Part III). In the national domain, the “expansive” practice of structural adjudication engaged by courts in the US, India, Colombia and South Africa is examined under the prism of arguments from failure. Climate litigation is also portrayed as an area where the need for innovation often sustains expansive judicial activity. In the supranational domain, the focus is on the use of functional, “effet utile” doctrines, which have been so important to fortify the role of European Union law. In the international sphere, Hailbronner analyzes the Uniting for Peace Resolution of the UN General Assembly, issued in the 1950s before inoperativity of the Security Council.
The book offers a wonderful promenade across theoretical discussions, judicial doctrine, political events, and episodes of legal mobilization. The rich panorama of contemporary public law parades before our eyes. Yet, for me, its main contribution is clearly theoretical. The book demonstrates that it is possible to theorize and evaluate output-oriented public law, something crucial, in my opinion, in view of the turn constitutional and international studies have taken in recent times. In the last decades, we have evolved from an academy predominantly interested in the understanding of constitutional normativity/bindingness and, later on, in the tasks necessary to spell out the implications of constitutional substance (theories of interpretation, proportionality, etc.) to debates predominantly interested in impact and effects. In my view, this is a logical evolution: once the bindingness of constitutions (or treaties) and their standard normative implications became undisputed, it was just natural to ask what difference do these constitutions (and treaties) really make in society. A boom of scholarship focused on efficacy, implementation, enforcement, remedies, etcetera, then ensued, accompanied by a methodological turn towards interdisciplinarity that placed lawyers in dialogue with political and social scientists.
This book convincingly illustrates that law and legal theorization retain an important place in this output-oriented universe. It is an error to constrain constitutional theory to input-oriented debates examining who can legitimately do what, based on which law-related ingredients. Because the vast universe of constitutional implementation needs, yes, indicators, regressions, tables and figures, but also some analytic and evaluative order. Hailbronner provides instruments to that effect while claiming the effort as a genuinely legal one. She takes empirical scenarios and institutional outputs as centrally relevant in devising models of constitutional (public law) governance, yet dialogues with them under the guidance of a deontological frame—importantly influenced by political process theory. While the goals and motivations are different, her work shares space, for instance, with Mitch Berman’s theorization of constitutional decision-rules (identified as crucial yet generally overlooked inhabitants of the “constitutional implementation space”). They should be joined by many others.
The book is, concomitantly, a convincing vindication of comparative theory—i.e. of the fecundity of theorizing law against the background of comparative developments. The book actually deploys an exercise of Rawlsian “reflexive equilibrium” between the theoretical/conceptual proposal contained in Part I and the “case studies” analyzed in Parts II and III. This seems to me indeed the only sensible way to theorize, as opposed to the traditional practice of grounding theory on imagined abstractions and assumptions –a recipe for falling prey to problematic biases. This is the function of the comparative component of the book. If it was a “comparative law” book, we could question perhaps the selection of jurisdictions in Part II–very close, as the author acknowledges, to the habitual suspects covered by scholarship written in English. Yet they make for a perfectly relevant selection from the point of view of exploring structural adjudication under the theoretical prism that orients the research.
What is, in my view, the book’s main limitation? Well, the book theorizes scenarios and practices that, sadly enough, are now receding. Hailbronner theorizes a world where the problems derive from individual or collective disfunction (“what happens when those holding political power fail?”, p. 23) within a wider scenario that is not yet chaotic. She explores what to do in contexts where constitutional/supranational/international frameworks still have substantial integrity and still embody a shared project based on law, oriented by basic values, and supported on continuous interactions at the supra-state level. As we know, however, in times of autocratic legalism, constitutions are increasingly polluted by authoritarianism, illiberalism and all kinds of elements turning them into a battlefield, rather than a collaborative framework. Many constitutions have been politically weaponized in recent years (think of the Mexican one after the 2024/2025 reforms), multilateralism is at its lowest and international structures are weak, increasingly coopted or openly inoperant. In this context the sort of balanced distribution of governance powers and responsibilities Hailbronner so carefully outlines looks increasingly utopian.
We can only hope that the world will become soon saturated (and overdisgusted) with the experience of living at the impulse of public dynamics in whose context the membrane separating law from politics is paper thin or has entirely ripped. When law re-gains the role it deserves—as Owen Fiss would put it—carefully crafted (and morally and politically sensible) proposals like the ones contained in Hailbronner’s book will illuminate the way forward.
Arguments from Failure, Judicial Intervention and Democracy
[Editor’s note: this is the first 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)].
Acting When Others Aren’t. Arguments from Failure in Comparative Public and International Law, by Michaela Hailbronner, is a very important work that updates and refines one of the most interesting discussions in contemporary constitutional theory. I am referring to the discussion on the role of institutions, and particularly the judicial branch, in times of constitutional erosion and democratic malfunctions (Dixon & Hailbronner 2021; Ginsburg & Huq 2018). The perspective adopted by the book is particularly interesting. This is so, on the one hand, because of the paradigm within which the work is framed -what Stephen Gardbaum has called “comparative political process theory” (CPPT) or Rosalind Dixon, similarly, named “Comparative representation-reinforcing theory” (CRRT) (see Ely 1980; Gardbaum 2020, 2020b; Dixon 2023; Gargarella 2020). On the other hand, and more specifically, the book’s approach is appealing, as it focuses on the analysis of “institutional failures” (which include, for instance, “state failure, dysfunction and state failure, dysfunction, and structural or systemic deficits”, p.3).
Within the tradition in which it is inscribed, Michaela’s book deserves a prominent place, first, for its clarity and depth. More significantly, her work stands out for being genuinely comparative: it is a book written by someone who looks at comparative law with curiosity and open questions, and not simply to reaffirm her own conclusions. Another important virtue of the book relates to the author’s “contextual” concerns, that is, her interest in thinking about legal problems, and their eventual answers or solutions, in relation to the particular place and time in which they emerge. Her contextual view, in addition, extends not only to the institutions of a (local) democracy as a whole, but also to the international sphere. And these merits are added to her valuable concern for appropriately calibrating (judicial) responses to the “failure of others”, for which she offers relevant metrics.
There would be much more to say about the merits and controversies raised by the book, but here, and given the limits of space, I will content myself with adding just a couple of observations. The first observation has to do with the place that his study reserves for judges. In that respect, I would say that, in general, but particularly in times of democratic erosion, one should not assume that the kinds of troubles in question (i.e., the capture of institutions by particular interests) affect all government institutions, but not, in principle, the judiciary. More specifically -one could claim- in an “eroded democracy,” the judiciary tends to become part of the problem that the theory needs to address. This is because, as history confirms, in contexts of “erosion,” political power is motivated to do everything possible to limit or colonize the actions of the courts. In sum, our starting point needs to be a judiciary that is probably affected, rather than free, from the institutional difficulties under examination.[1]
The other point I wanted to mention has to do with the normative basis of Michaela’s analysis, and in particular with the conception of democracy that seems to be present throughout her book. As I have tried to demonstrate in other works, a significant part of contemporary legal doctrine tends to conflate the questions of constitutionalism and democracy (Gargarella 2019, Gargarella 2022). As I see it, we currently face serious difficulties in both areas. On the one hand, we have problems of so-called “democratic erosion” although they actually refer to constitutional matters (concentration of power; abuses of authority; undermining of the power of oversight institutions). On the other hand, we have problems that are strictly democratic, linked (let’s say, for the moment) to a radical crisis in the representative system and, more generally, to the deterioration of the basic mechanisms of popular sovereignty (which include the reduction of democratic citizen participation to periodic voting). Both problems, which seriously undermine democratic constitutionalism, are very important, but the latter cannot be underestimated, much less ignored. And my impression is that Michaela’s book fundamentally neglects the democratic problem. Therefore, even if one day—miraculously—we could counteract present failures and restore the functioning of our institutions, on that day, our democratic problems would remain identical to those we suffer today. In short, I believe that her book should be reinforced, perhaps in the future, with a more detailed and in-depth analysis of democratic issues, which are as serious as, if not more serious than, the constitutional difficulties she analyzes in her current, excellent book.
Dixon, R. (2023), Responsive Judicial Review: Democracy and Dysfunction in the Modern Age, Oxford: Oxford University Press.
Dixon, R & Hailbronner, M. (2021), “Ely in the world: The global legacy of Democracy and Distrust forty years on,” I.CON, vol. 19, n. 2, 427-438.
Dixon, R and Landau, D. (2021), Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy, Oxford: Oxford University Press.
Ely, J. (1980), Democracy and Distrust, Harvard University Press.
Gardbaum, S. (2020), “Comparative Political Process Theory,” 18 I.CON 1429.
Gardbaum, S. (2020b), “Comparative Political Process Theory. A Rejoinder” 18 I.CON 1503.
Gargarella, R. (2022), The Law as a Conversation Among Equals, Cambridge: Cambridge University Press.
Gargarella, R. (2020), “From “Democracy and Distrust” to a Contextually Situated Dialogic Theory” I.CON, Volume 18, Issue 4, December 2020, 1466.
Gargarella, R. (2019), “Review of Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy, University of Chicago Press, 2018” Revista Derecho del Estado (Universidad Externado, Colombia), n. 44, 397.
Gargarella, R. (2013), Latin American Constitutionalism, Oxford: Oxford University Press.
Ginsburg, T.; Huq, A. (2018), How to save a Constitutional Democracy, Chicago: The University of Chicago Press.
Hailbronner, M. (2025), Acting When Others Aren’t. Arguments from Failure in Comparative Public and International Law, Cambridge: Cambridge University Press.
[1] Rosalind Dixon raises a parallel concern, and aptly asks Michaela if judges “have the capacity to accurately assess the necessity of their own intervention…or are they prone to overestimating their own institutional significance, or efficacy, and hence their duty to intervene to correct other institutions’ failures” (Dixon 2025). My concern, however, goes beyond that observation, to also impact Rosalind’s own analysis. See Dixon 2023; Gargarella 2025).
