Constitutional Avoidance in Social Rights Adjudication

Abstract

In Judging Social Rights, Jeff King makes a powerful case for a limited, incrementalist, judicial approach to social rights adjudication. We argue that while King’s prescriptions are justified, he is too cautious about the applicability of his incrementalist prescriptions to legal systems that suffer systemic administrative inefficiencies. Using the Indian experience as a case study, we show that such caution is misplaced, and that at least one of King’s incrementalist strategies, constitutional avoidance, has particular salience for such jurisdictions.