Justice by Templates: Legislative Stalemate, Standardized Judicial Policymaking, and Stimulus to Health Litigation in Chile

Abstract

For about twenty years, Chilean high courts have issued myriad standardized rulings against the annual price-fixing adjustments in private health insurance contracts, intervening in health policy and propelling the emergence of a buoyant litigation industry by awarding attorneys’ fees to claimants. In deciding thousands of cases almost identically in protecting fundamental rights, particularly those involving private property, courts overrode legal rules on price adjustability that several congressional bills intended to reform, albeit unsuccessfully. And in granting claimants’ fees, courts simultaneously reinforced private insurance clients’ ability to litigate. Thus, courts reviewed a critical aspect of a health-care delivery system that political actors across the entire electoral spectrum have called into question. Employing a sequential comparison between the politics of private health insurance premium regulation and the origins of mass standardized judicial decisions, this article explores how Chilean high courts addressed legislative stalemate through an unusual form of judicial policymaking.