2008] The Minimum Core of Economic and Social Rights 161 of the legal process school, which poi nt to the over- and underenforcement problems of rights that make it “ both pointless and indeterminate” 274 to speculate about their shape and meaning because of the inevitabl e fact that courts or nonjudici al officials will deliver only the most useful definition according to their institutional competenc y. In its most exaggerated sense, the minimum core of each economic and social right is whatever is left for a court to rule on after the hoary institutional questions—mediated by the doctrines of standing, ripeness, mootness, an d the political question doctrine, 275 as well as the availability of ri ghts-respecting remedies276—have curtailed its ability to give expression to the right. Not surprisingly, what is left of the minimum core may bear little resemblance to the Essence and Consensus Approaches—an outcome parallel to the effect of the core obligations issued by the Committee. The problems of justiciability (as well as the problems of remedie s) so far leave very little room for courts to articulate the minimum legal threshold of economic and social rights. 277 Without reconceiving the lim its of t he judicial role, 278 this room is reserved only for the le ss controversial, “negative” (duty) formulations of economic and social rights, the adjudication of which does not risk costly remedies or intrusive de mands. Again, we are returned to the hierarchy of state duties to desist or to act. Equating the mini mum core content with justiciability favors the negative articulation of economic and social rights rather than holding th e positive obligations to scrutiny, notwithstanding their equivalent effect on enjoyment. Nonetheless, the narrowed entrench ment of the mini mum core into purely negative, easily en forceable formulations does not necessarily occur. As we have seen, the ju sticiability of the obligat ions which flow from economic and social rights in Sout h Africa has expanded significantly to embrace both “positive” and “n egative” duties of the state. 279 This has registered most explicitly in South A frican cases, and ye t a trend towards justiciability is even perceptible in U.S. federal courts, whereby new remedial practices are available for enforcing standards of positive provision in areas of education, mental health, and policing.280 274. Daryl J. Levinson, Rights Essentialism and Remedial Equilibration , 99 C OLUM. L. REV. 857, 925 (1999). Levinson advocates the strongest version of this approach. 275. See U.S. CONST. art. III, § 2; see, e.g., Abram Chayes, The Supreme Court 1981 Term — Foreword: Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 59 (1982). 276. See Levinson, supra note 274, at 889-99; Paul Gewirtz, Remedies and Resistance , 92 YALE L.J. 585, 678-79 (1983). 277. For a sem inal statement in which he entertains a new paradigm for overcom ing these problems, see Abram Chayes, The Role of the Judge in Public Law Litigation , 89 H ARV. L. REV. 1281 (1976). See also Owen M. Fiss, The Supreme Court 1978 Term —Foreword: The Forms of Justice , 93 HARV. L. REV. 1, 16, 18-28 (1979) (advancing a theory of st ructural reform which gives m eaning to public values rather than resolving disputes). 278. For a recent extension o f Chayes’s insights a nd for ways in which to en force obligations of “disentrenchment” on public institutions, see Charles F. Sabel & W illiam H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 HARV. L. REV. 1016 (2004). 279. South Africa v Grootboom 2001 (1) SA 46 (CC) (S. Afr.) (affirming the state’s pos itive duty to provide housing). 280. For an important exploration of this trend in U.S. federal courts and its potential, see Sabel & Simon, supra note 278, at 1022-52.